N.M. Admin. Code § 20.3.3.311

Current through Register Vol. 36, No. 1, January 14, 2025

Section 20.3.3.311 - FINANCIAL ASSURANCE AND RECORD KEEPING FOR DECOMMISSIONING

A.Decommissioning funding plan required.

(1) Each applicant for a specific license authorizing the possession and use of unsealed radioactive material (except source material which is subject to Paragraph (3) of this subsection) of half-life greater than 120 days in quantities exceeding 100,000 (1E+5) times the applicable quantities set forth in 20.3.3.338 NMAC, shall submit a decommissioning funding plan as described in Subsection E of this section. The decommissioning funding plan must also be submitted when a combination of radioisotopes is involved if R divided by 100,000 (1E+5) is greater than 1 (unity rule), where R is defined here as the sum of the ratios of the quantity of each radioisotope to the applicable value in 20.3.3.338 NMAC.

(2) Each applicant for a specific license authorizing the possession and use of sealed sources or plated foils of half-life greater than 120 days and in quantities exceeding 10¹² (1E+12) times the applicable quantities set forth in 20.3.3.338 NMAC (or when a combination of radioisotopes is involved if R, as defined in Paragraph (1) of this subsection, divided by 10¹² is greater than 1), shall submit a decommissioning funding plan as described in Subsection E of this section.

(3) Each applicant for a specific license authorizing the possession and use of more than 100 (1E+2) millicuries of source material in a readily dispersible form shall submit a decommissioning funding plan as described in Subsection E of this section.

B. Each applicant for a specific license authorizing possession and use of radioactive material of half-life greater than 120 days and in quantities specified in Subsection D of this section shall either:

(1) submit a decommissioning funding plan as described in Subsection E of this section; or

(2) submit a certification that financial assurance for decommissioning has been provided in the amount prescribed by Subsection D of this section using one of the methods described in Subsection F of this section; for an applicant, this certification may state that the appropriate assurance will be obtained after the application has been approved and the license issued but prior to the receipt of licensed material; if the applicant defers execution of the financial instrument until after the license has been issued, a signed original of the financial instrument obtained to satisfy the requirements of Subsection F of this section must be submitted to the department before receipt of licensed material; if the applicant does not defer execution of the financial instrument, the applicant shall submit to the department, as part of the certification, a signed original of the financial instrument obtained to satisfy the requirements of Subsection F of this section.

C.Financial assurance for holders of specific license. Each holder of a specific license issued before the effective date of these regulations which is of a type described in Subsection A or B of this section shall provide financial assurance for decommissioning in accordance with the criteria set forth in this section.

(1) Each holder of a specific license issued before the effective date of these regulations, and of a type described in Subsection A of this section shall submit a decommissioning funding plan as described in Subsection E of this section.

(2) Each holder of a specific license issued before the effective date of these regulations, and of a type described in Subsection B of this section shall submit a decommissioning funding plan as described in Subsection E of this section, or a certification of financial assurance for decommissioning in accordance with the criteria set forth in Subsection D of this section.

(3) Any licensee who has submitted an application before the effective date of these regulations for renewal of license in accordance with 20.3.3.319 NMAC shall provide financial assurance for decommissioning in accordance with Subsections A and B of this section.

(4) Waste collectors and waste processors, as defined in 20.3.4.466 NMAC, must provide financial assurance in an amount based on a decommissioning funding plan as described in Subsection E of this section. The decommissioning funding plan must include the cost of disposal of the maximum amount (in curies) of radioactive material permitted by license, and the cost of disposal of the maximum quantity, by volume, of radioactive material which could be present at the licensee's facility at any time, in addition to the cost to remediate the licensee's site to meet the license termination criteria of 20.3.4.426 NMAC.

D.Required amounts of financial assurance for decommissioning by quantity of material. Licensees exceeding the upper bounds of this subsection must base financial assurance on a decommissioning funding plan as described in Subsection E of this section.

(1) Greater than 10,000 (1E+4) but less than or equal to 100,000 (1E+5) times the applicable quantities of 20.3.3.338 NMAC, in unsealed form. (For a combination of radioisotopes, if R as defined in Subsection A of this section, divided by 10,000 (1E+4) is greater than 1 but R divided by 100,000 (1E+5) is less than or equal to 1): at least equal to $1,125,000.

(2) Greater than 1,000 (1E+3) but less than or equal to 10,000 (1E+4) times the applicable quantities of 20.3.3.338 NMAC, in unsealed form. (For a combination of radioisotopes, if R, as defined in Subsection A of this section, divided by 1,000 (1E+3) is greater than 1 but R divided by 10,000 (1E+4) is less than or equal to 1): at least equal to $225,000.

(3) Greater than 10¹⁰ (1E+10) but less than or equal to 10¹² (1E+12) times the applicable quantities of 20.3.3.338 NMAC, in sealed sources or plated foils. (For a combination of radioisotopes, if R, as defined in Subsection A of this section, divided by 10¹⁰ is greater than 1, but R divided by 10¹² is less than or equal to 1): at least equal to $113,000.

(4) For source material, greater than 10 millicuries but less than or equal to 100 millicuries: at least equal to $225,000.

E.Decommissioning funding plan.

(1) Each decommissioning funding plan must be submitted for review and approval and must contain a detailed cost estimate for decommissioning in an amount reflecting:

(a) the cost of an independent contractor to perform all decommissioning activities;

(b) the cost of meeting the 20.3.4.426.B NMAC criteria for unrestricted use, provided that, if the applicant or licensee can demonstrate its ability to meet the provisions of 20.3.4.426.C NMAC, the cost estimate may be based on meeting the 20.3.4.426.C NMAC department approved criteria;

(c) the volume of onsite subsurface material containing residual radioactivity that will require remediation to meet the criteria for license termination;

(d) an adequate contingency factor with identification of and justification for using the key assumptions contained in the decommissioning cost estimate;

(e) a description of the method of assuring funds for decommissioning from 20.3.3.311.F NMAC including means for adjusting cost estimates and associated funding levels periodically over the life of the facility;

(f) a certification by the licensee that financial assurance for decommissioning has been provided in the amount of the cost estimate for decommissioning; and

(g) a signed original of the financial instrument obtained to satisfy the requirement of Subsection F of this section (unless a previously submitted and accepted financial instrument continues to cover the cost estimate for decommissioning).

(2) At the time of license renewal and at intervals not to exceed three years, the decommissioning funding plan must be resubmitted with adjustments as necessary to account for changes in costs and the extent of contamination. If the amount of financial assurance will be adjusted downward, this cannot be done until the updated decommissioning funding plan is approved. The decommissioning funding plan must update the information submitted with the original or prior approved plan, and must specifically consider the effect of the following events on decommissioning costs:

(a) spills of radioactive material producing additional residual radioactivity in onsite subsurface material;

(b) waste inventory increasing above the amount previously estimated;

(c) waste disposal costs increasing above the amount previously estimated;

(d) facility modifications;

(e) changes in authorized possession limits;

(f) actual remediation costs that exceed the previous cost estimate;

(g) onsite disposal; and

(h) use of a settling pond.

F.Methods of financial assurance. Financial assurance for decommissioning must be provided by one or more of the following methods.

(1)Prepayment. Prepayment is the deposit prior to the start of operation into an account segregated from licensee assets and outside the licensee's administrative control of cash or liquid assets such that the amount of funds would be sufficient to pay decommissioning costs. Prepayment may be in the form of a trust, escrow account, government fund, certificate of deposit or deposit of government securities.

(2)A surety method, insurance or other guarantee method. These methods guarantee that decommissioning costs will be paid. A surety method may be in the form of a surety bond, letter of credit or line of credit. A parent company guarantee of funds for decommissioning costs based on a financial test may be used if the guarantee and test are as contained in 20.3.3.334 NMAC. A parent company guarantee may not be used in combination with other financial methods to satisfy the requirements of this section. For commercial corporations that issue bonds, a guarantee of funds by the applicant or licensee for decommissioning costs based on a financial test may be used if the guarantee and test are as contained in 20.3.3.335 NMAC. For commercial companies that do not issue bonds, a guarantee of funds by the applicant or licensee for decommissioning costs may be used if the guarantee and test are as contained in 20.3.3.336 NMAC. For nonprofit entities, such as colleges, universities and nonprofit hospitals, a guarantee of funds by the applicant or licensee may be used if the guarantee and test are as contained in 20.3.3.337 NMAC. A guarantee by the applicant or licensee may not be used in combination with any other financial methods to satisfy the requirements of this section or in any situation where the applicant or licensee has a parent company holding majority control of the voting stock of the company. Any surety method or insurance used to provide financial assurance for decommissioning must contain the following conditions.

(a) The surety method or insurance must be open-ended or, if written for a specified term, such as five years, must be renewed automatically unless 90 days or more prior to the renewal date, the issuer notifies the department, the beneficiary, and the licensee of its intention not to renew. The surety method or insurance must also provide that the full face amount be paid to the beneficiary automatically prior to the expiration without proof of forfeiture if the licensee fails to provide a replacement acceptable to the department within 30 days after receipt of notification of cancellation.

(b) The surety method or insurance must be payable to a trust established for decommissioning costs. The trustee and trust must be acceptable to the department. An acceptable trustee includes an appropriate state or federal government agency or an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

(c) The surety method or insurance must remain in effect until the department has terminated the license.

(3)An external sinking fund in which deposits are made at least annually, coupled with a surety method or insurance, the value of which may decrease by the amount being accumulated in the sinking fund. An external sinking fund is a fund established and maintained by setting aside funds periodically in an account segregated from licensee assets and outside the licensee's administrative control in which the total amount of funds would be sufficient to pay decommissioning costs at the time termination of operation is expected. An external sinking fund may be in the form of a trust, escrow account, government fund, certificate of deposit, or deposit of government securities. The surety or insurance provisions must be as stated in Paragraph (2) of this subsection.

(4) In the case of federal, state or local government licensees, a statement of intent containing a cost estimate for decommissioning or an amount based on Subsection D of this section, and indicating that funds for decommissioning will be obtained when necessary.

(5) When a governmental entity is assuming custody and ownership of a site, an arrangement that is deemed acceptable by such governmental entity.

G.Record keeping requirements. Each person licensed under this part or Parts 5, 7, 12, 13 and 15 of this chapter shall keep records of information important to the decommissioning of the facility in an identified location until the site is released for unrestricted use. Before licensed activities are transferred or assigned in accordance with 20.3.3.317 NMAC, licensees shall transfer all records described in this paragraph to the new licensee. In this case, the new licensee will be responsible for maintaining these records until the license is terminated. If records important to the decommissioning of a facility are kept for other purposes, reference to these records and their locations may be used. Information the department considers important to decommissioning consists of:

(1) records of spills or other unusual occurrences involving the spread of contamination in and around the facility, equipment or site; these records may be limited to instances when contamination remains after any cleanup procedures or when there is reasonable likelihood that contaminants may have spread to inaccessible areas as in the case of possible seepage into porous materials such as concrete; these records must include any known information on identification of involved nuclides, quantities, forms and concentrations;

(2) as-built drawings and modifications of structures and equipment in restricted areas where radioactive materials are used or stored, and of locations of possible inaccessible contamination such as buried pipes which may be subject to contamination; if required drawings are referenced, each relevant document need not be indexed individually; if drawings are not available, the licensee shall substitute appropriate records of available information concerning these areas and locations;

(3) except for areas containing only sealed sources (provided the sources have not leaked or no contamination remains after any leak) or radioactive materials having only half-lives of less than 65 days, a list contained in a single document and updated every two years, of the following:

(a) all areas designated and formerly designated restricted areas as defined in 20.3.4.7 NMAC;

(b) all areas outside of restricted areas that require documentation under Paragraph (1) of this subsection;

(c) all areas outside of restricted areas where current and previous wastes have been buried as documented under 20.3.4.448 NMAC; and

(d) all areas outside of restricted areas that contain material such that, if the license expired, the licensee would be required to either decontaminate the area to meet the criteria for decommissioning in 20.3.4.426 NMAC, or apply for approval for disposal under 20.3.4.434 NMAC; and

(4) records of the cost estimate performed for the decommissioning funding plan or of the amount certified for decommissioning, and records of the funding method used for assuring funds if either a funding plan or certification is used.

N.M. Admin. Code § 20.3.3.311

20.3.3.311 NMAC - Rp, 20.3.3.311 NMAC, 4/30/2009, Amended by New Mexico Register, Volume XXVIII, Issue 11, June 13, 2017, eff. 6/13/2017