ML20044C672

Obtains Commission Approval of Rulemaking to Eliminate Requirement in NRC Regulations That Commission Expressly Authorize Each Specific License for Storage of Spent Fuel in ISFSI Under 10CFR72 Before Issuance of License

ML20044C672
Person / Time
Issue date:	04/30/1993
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
FRN-58FR31478 AE64-1-007, AE64-1-7, SECY-93-112, NUDOCS 9305050017
Download: ML20044C672 (34)

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RULEMAKING ISSUE T_QB:

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FROM:

William C. Parler General Counsel

SUBJECT:

PROPOSED RULEMAKING TO ELIMINATE REQUIREMENT OF PRIOR COMMISSION APPROVAL FOR A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72 PURPOSE:

To obtain Commission approval of rulemaking to eliminate the requirement in NRC regulations that the Commission itself expressly authorize each specific license for storage of spent fuel in an independent spent fuel storage installation (ISFSI) under 10 CFR Part 72 before issuance of the license.

BACKGROUND:

This paper responds to a November 23, 1992 Staff Requirements Memorandum (SRM) requesting the Office of General Counsel to consider rulemaking to eliminate any requirement for Commission authorization prior to the NRC staff's issuance of specific licenses under 10 CFR Part 72 for ISFSIs, including specifically the requirement for such authorization contained in 10 CFR 2.764 (c) i and also mentioned in 10 CFR 72.46(d).

This paper summarizes the background of the requirement, and describes the proposed rule change to eliminate it.

When the Commission approved the Part 72 license in November 1992, for spent fuel storage in an ISFSI on the Baltimore Gas and Electric Company's Calvert Cliffs site (SECY-92-366),

it was authorizing the fifth such initial license for an ISFSI.

Prior to Calvert Cliffs, the NRC staff issued Part 72 licenses after specific Commission authorization for the following plants:

Surry Power Station (Virginia Electric and Power Co.);

SECY-86-174 (June 6, 1986) (unopposed application).

H.B. Robinson Unit 2 (Carolina Power and Light Co.) ;

SECY-86-199 (July 3, 1986) (unopposed application).

j'

'7-Oconee Nuclear Station (Duke Power Co. ) ; SECY-89-355

],e 0 5y v3 0017 -)( A,4989)(unopposed application).

(November 28-o J.

Contact:

Bill Reamer, OGC 3[

504-1640 Q

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2 St. Vrain Nuclear Generating Station (Public Service Co.

of Colorado); SECY-91-324 (October 16, 1991) (unopposed application).

Moreover, like the four previous ISFSI licenses, the Calvert Cliffs license application was uncontested.1 The NRC staff's need to obtain express Commission authorization before issuing such an ISFSI license arises from 10 CFR 72.46(d),

which provides as follows:

If no reauest for a hearina or netition for leave to intervene is filed within the time prescribed.

the

Director, Office of Nuclear Material Safety and Safeguards or the Director's designee may take the proposed action, and thereafter shall promptly inform the appropriate State and local officials and publish a notice in the Federal Reaister of the action taken.

In accordance with S 2.764 (c) of this chapter, the Director.

Office of Nuclear Material Safety and Safeauards shall not issue an initial license for the construction and operation of an ISFSI or an MRS until express 1v authorized to do so by the Commission.

10 CFR S 72.46(d) (Emphasis added).2 The Commission itself added the requirement of express Commission authorization for an ISFSI license during its review of the NRC staff's proposed final rule for Part 72 in 1980.

At that time, DOE was considering the interim storage option of a number of large, regional spent fuel storage facilities; because Part 72 adopted a one-step licensing process, the Commission directed that any license should not be effective until Commission review was complete.' In 1988, the Commission extended the requirement to 2

Although the staff received a request for hearing on the Calvert Cliff's license application, the request was subsequently withdrawn before any licensing board hearing or initial decision, and the application was therefore uncontested.

2 The staff's need to obtain express Commission authorization for contested applications stems from Section 2.764(c) which provides that an initial decision of a licensing board, directing issuance of an initial license for and ISFSI or MRS, shall become effective only upon order of the Commission, and that the Director shall not issue an initial license for an ISFSI or MRS until expressly authorized by the Commission.

3 S _q Memorandum for Chairman Palladino, et al., from Victor e

Stello, Jr., Executive Director for Operations, dated June 5,1986; subj: Backfitting and Immediate Ef t'octiveness Provisions of 10 CFR

3 issuance of any initial license for a DOE monitored retrievable storage facility (MRS) when it adopted the Part 72 one-step licensing process for the MRS as well.

Since, as described above, the Commission itself imposed the requirement of express Commission authorization for an ISFSI license, the Commission can therefore legally decide to eliminate it.

As is evident from the legal background described above, notice and comment rulemaking will be necessary to implement such a Commission decision.

A draft notice of proposed rulemaking is therefore attached to this paper, and is discussed immediately below.

DISCUSSION:

The appended notice of proposed rulemaking would amend 10 CFR 2.764(a)-(c) and 10 CFR 72.46(d) to authorize the NRC Director of l

NMSS to issue a specific license for an ISFSI under 10 CFR Part 72, I

after the NRC staff completes its public health and safety review, l

prepares an environmental assessment and determines that license issuance would conform to all statutory and regulatory I

requirements, and after an opportunity for a public hearing has been offered (including the completion of any such hearing if one is held).

The notice of proposed rulemaking explains the basis and purpose of the proposed rule essentially as follows:

10 CFR 2.764 and 10 CFR 72.46, as they currently exist, state a special exception to the Commission's general practice to delegate to the Director of NMSS full authority to issue licenses upon favorable completion of NRC reviews, as well as the completion of any public hearing on the license application.

The special exception originated in 1980 when DOE was considering the interim storage of spent fuel in a number of large, regional spent fuel storage facilities, and the Com:iission decided that one-step licensing for such DOE Part 72.

See also Final Rule on Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 F.R.

74,693, 74695 (November 12, 1980) ("Section 2.764.

has been amended by adding a new paragraph (c) which provides that an initial decision directing the issuance under 10 CFR Part 72 of an initial license for the construction and operation of an.

[ISFSI] shall not become effective until review by the Commission has been completed and that the Director of Nuclear Material Safety and Safeauards shall not issue such an initial license until express 1v authorized to do so by the Commission.")(Emphasis added).

J

4 facilities should not be effective until Commission review was complete.

DOE's subsequent programmatic decision was not to pursue the option of large-scale, regional storage facilities.

Thus, in proposing to change the special exception, the Commission would be eliminating a procedure it previously adopted to address circumstances that subsequently never materialized.

However, the Commission would have the right to revisit the issue if DOE's plans concerning such an in S

,4 spent fuel storage option subsequently change.

The current practice creates an additional, unnecessary layer of agency review.

Specifically, since the exception was adopted in 1980, the Director has issued five specific licenses for storage of spent fuel in ISFSIs at reactor sites after obtaining express Commission authorization to do so in each instance.

This experience also supports the Commission belief the special exception is unnecessary.

The Commission can therefore simplify the ISFSI licensing process by eliminating the requirement for express Commission authorization.

In addition, given that an applicant for a specific ISFSI license is required under Commission regulations (10 CFR Part 170) and the Independent Offices Appropriations Act of 1952 (31 U.S.C.

483a) to pay application and license fees that cover the full cost of NRC review, the proposed amendment could save money that would otherwise be expended for unnecessary agency reviews.

As with other, comparable licensing actions, the Director of NMSS will continue to carry out licensing of the interim storage of spent fuel in an ISFSI under Commission supervision and direction.

The proposed revision concerns only internal agency procedures, and the Commission's existing opportunity for public hearing, as described in the notice, would continue for specific ISFSI licenses.

If a hearing is

held, issuance of the ISFSI license would await completion of the hearing and the initial decision by the Licensing

Board, and the ISFSI license would be appropriately conditioned in light of the Board's findings and conclusions on the matters determined in the hearing.

In addition, hearing participants have the right to request Commission review of the Board's

decision, including the right to request that the effectiveness of the Board's decision be stayed, and that the Commission undertake review before license issuance if they believe the facts warrant such a review.

Of course, absent such a stay request, the Board's decision would be immediately effective, and the Director would

6 5

e issue the ISFSI license within 10 days after the decision, without being required to obtain additional, express Commission authorization to do so.

The proposed rulemaking amendments are administrative in' nature, and therefore would not affect the scope of the NRC's environmental assessment or its comprehensive public health and safety review of an application for a specific license for an ISFSI.

None of the NRC staff technical activities would, in any way, be modified by the proposed procedural amendment that is the subject of l

this rulemaking.

Under the proposed amendments, the commission's express authorization would continue to be required before issuance by the Director, NMSS of any initial license to DOE for an MRS.

Adoption of the proposed rulemaking amendments in notice and comment rulemaking would eliminate any requirement for Commission authorization prior to the NRC staff's issuance of specific licenses under 10 CFR Part 72 for ISFSIs, as the Commission requested in the November 23, 1992 SRM to which this paper responds.

j COORDINATION:

This paper has been coordinated with the Executive Director for 4

Operations who concurs in the paper's recommendation.

l RECOMMENDATION:

That the Commission:

1.

Acorove publication of the attached Notice of Proposed Rulemaking (Enclosure 1).

2.

Certify the proposed rule, if adopted, will not have a negative economic impact on a substantial number of small entities, in order to satisfy requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

3.

Note:

a.

The rulemaking would be published in the Federal Reaister for a 75-day public comment period; b.

The appropriate Congressional committees will i

be informed (Enclosure 2);

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6 c.

A public announcement (Enclosure 3) will be issuede d.

Copies of the Federal Register Notice will be distributed to each affected licensee and other interested parties; e.

The Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification of-no negative economic impact on small entities and the reasons for it as required by the Re-gulatory Flexibility Act; and f.

The proposed rule does not contain a new or amended information collection requirement subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.).

Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0136 and 0132.

S William C.

Parler General Counsel

Enclosures:

1.

Notice of Proposed Rulemaking 2.

Congressional Letters 3.

Public Announcement

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i Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Friday, May 14, 1993.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT May 7, 1993, with an information copy to the Office of r

the Secretary.

If the T. aper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

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NUCLEAR REGULATORY COMMISSION 1

l 10 CFR Parts 2 and 72 r

RIN:

3150-AE64 l

Interim Storage of Spent Fuel in an l

Independent Spent Fuel Storage Installation, l

Site-Specific License to a Qualified Applicant l

i AGENCY:

Nuclear Regulatory Commission.

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t ACTION:

Proposed rule.

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SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to I

amend its procedures under which the Director of Nuclear Materials Safety and Safeguards can issue a site-specific license to a qualified applicant for the interim storage of spent fuel in an independent spent fuel storage installation (ISFSI) following satisfactory completion of NRC safety and environmental reviews and after any public hearing on the application.

The proposed amendment is administrative in nature and would eliminate the need for express Commission authorization for each ISFSI license, but would not affect the scope of NRC review of an ISFSI license application or change the present opportunity for public hearing provided for in the NRC's rules of practice.

DATE:

The comment period expires (seventy-five days after publication in the Federal Register).

Comments received after this date will be considered if it is practical to do so, but the l

1

2 Commission is able to ensure consideration only for comments received on or before this date.

ADDRESS:

Submit comments to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

ATTN:

Docketing and Services Branch.

Hand deliver comments to:

11555 Rockville Pike, Rockville, Maryland between 7:45 am and 4:15 pm Federal workdays.

Copies of comments may be examined at the NRC Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC.

in the lower level of the Gelman Building.

FOR FURTHER INFORMATION CONTACT:

C. William Reamer, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

Telephone:

(301) 504-1640.

SUPPLEMENTARY INFORMATION:

Background

Under 10 CFR Part 72, the NRC will issue a specific license for the interim storage of nuclear power plant spent fuel in an independent spent fuel storage installation (ISFSI) if NRC determines the application meets the requirements of the Atomic Energy Act of 1954 (42 U.S.C.

2011 et seq.) and the Commission's regulations.

An ISFSI is a facility that is specifically a

6 4

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i designed and constructed for interim spent fuel storage, after j

use of the nuclear fuel as a source of energy in a nuclear power l

reactor, until its shipment to the U.S.

Department of Energy's planned geologic repository for disposal of radioactive waste.

Part 72 is limited in scope to the temporary storage (up to 20 i

years with renewal at the option of the NRC) of spent fuel in an i

ISFSI.

This rulemaking proposes a change to improve the l

Commission's procedures for the issuance of a specific ISFSI license to a qualified applicant.

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Discussion i

The Commission is proposing to amend the procedures that authorize the NRC Director of Nuclear Material Safety and Safeguards (or the Director's designee) to issue a specific license for the interim storage of spent fuel in an ISFSI under t

10 CFR Part 72, after the NRC completes a comprehensive,

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documented, public health and safety review; prepares an i

environmental assessment and determines that issuing the license would conform to all statutory and regulatory requirements; and after an opportunity for a public hearing has been offered and j

any requested hearing is complete.

The amendment would end the current internal practice under which the Director obtained the Commission's express authorization for each ISFSI license, after the NRC review and determination that a license should be issued i

4 l

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l under 10 CFR Part 72, but before the Director actually issued the 1

license.

The proposed rule would not affect, in any way, 1

existing procedures for the NRC review or the opportunity for public hearing.

i The existing rule, which reflects the internal practice the Commission is proposing to change, provides that the NRC

" Director of Nuclear Material Safety and Safeguards shall not l

issue an initial license for the construction and operation of an t

ISFSI under 10 CFR Part 72 until expressly authorized to do i

so by the Commission." (See 10 CFR 2.764(c), 72.46(d)).

This rule states a special exception to the Commission's general practice to delegate to the Director full authority to issue I

licenses upon favorable completion of NRC reviews, as well as the l

l completion of any public hearing on the license application.

Under the Energy Reorganization Act of 1974 (42 U.S.C.

5801, 5845), the Director's functions are delegated by the Commission and include " principal licensing and regulation" for facilities other than nuclear reactors.

The Commission is proposing to end the special exception, and give the Director comparable authority to issue a license for the interim storage of spent fuel in an ISFSI.

l 1

The special exception was added to the Commission's rules in l

1980.

See " Licensing Requirements for the Storage of Spent Fuel in an Independent Fuel Spent Storage Installation," 45 FR 74693; 1

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November 12, 1980.

At that time, it was understood that an

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t option under consideration by the Department of Energy (DOE) was l

l the interin storage of spent fuel in a number of large, regional 1

l spent fuel storage facilities.

Anticipating that the one-step i

j licensing process in Part 72 would be used for licensing this l

type of DOE facility, the Commission directed that any license l

should not be effective until Commission review was complete.

l However, following enactment of the Nuclear Waste Policy Act of i

1982, which made utilities primarily responsible for providing I

their own interim spent fuel storage, DOE elected not to pursue the option of large-scale, regional storage facilities.

Thus, in proposing to revise the internal procedure incorporating the special exception, the Commission would be eliminating a I'

procedure it previously adopted to address circumstances that subsequently never materialized.

However, the Commission would i

have the right tc revisit the issue if DOE's plans concerning such an interin opent fue) storage option subsequently change.

Since the exception Mas adopted in 1980, the Director has issued five specific licenses for storage of spent fuel in ISFSIs at reactor sites after obtaining express Commission authorization to do so.

In particular, licenses were issued for interim spent fuel storage in an ISFSI et Surry Power Station (Virginia Electric and Power Co.), H.B. Robinson Unit 2 (Carolina Power and Light Co.), Oconee Nuclear itation (Duke Power Co.), Fort St.

Vrain Nuclear Generating S',ation (Public Service Co. of

i 6

Colorado), and Calvert Cliffs Nuclear Power Plant (Baltimore Gas f

i and Electric Co.).

On the basis of this experience, the

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Commission believes the special exception, requiring express Commission authorization in every case, is no longer needed.

Because the current practice creates an additional, unnecessary l

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h layer of agency review, the Commission believes it can simplify the ISFSI licensing process by eliminating the requirement for i

exprecs Commission authorization.

In addition, given that an l

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applicant for a specific ISFSI license is required under l

i Commission regulations (10 CFR Part 170) and the Independent j

l Offices Appropriations Act of 1952 (31 U.S.C.

483a) to pay application and license fees that cover the full cost of NRC review, the proposed amendment could save money that would i

otherwise be expended for unnecessary agency reviews.

i As with comparable licensing actions, the Director, NMSS l

will continue to carry out licensing of the interim storage of i

spent fuel in an ISFSI under Commission supervision and direction.

Specifically, under existing NRC procedures that would be unchanged by this rulemaking, the NRC staff is required to keep the Commission fully and currently informed about proposed significant licensing actions (which would include l

issuance by the Director, NMSS of a specific ISFSI license), and is also required to bring any significant question of policy to the Commission for resolution.

These internal mechanisms, which the Commission is not proposing to change, ensure that every l

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specific license for interim spent fuel storage in an ISFSI is issued under the supervision and direction of the Commission.

In addition, as discussed below, if the application for a specific ISFSI license is the subject of a public hearing, parties to the licensing proceeding will continue to have the opportunity to request Commission review of their concerns before any license is issued by the Director.

The proposed revision concerns only internal agency j

i procedures.

The Commission's existing opportunity for public hearing, as described below, would continue for specific ISFSI licenses.

Under the commission's rules of practice, after receipt of an application for a specific license for interim spent fuel storage in an ISFSI, the NRC publishes a notice of proposed action and opportunity for hearing in the Federal Register to potentially interested entities and persons (10 CFR f

2.105, 72.46(a)).

Among c'her things, the notice indicates that any person whose interest may be affected may file a request for i

a hearing or a petition for leave to intervene.

Potentially affected persons and entities have a right to obtain all relevant NRC staff safety documents, as well as all technical submissions of the license applicant.

They may request a hearing or provide written comments before any final NRC action on an ISFSI license application (10 CFR 2.105).

If a hearing on the application is f

held before an Atomic Safety and Licensing Board, issuance of a specific license for an ISFSI by NRC must await completion of the l

i

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hearing and the initial decision by the Board, and must be appropriately conditioned in light of the Board's findings and conclusions on the matters determined in the hearing (10 CFR 2.760).

Under NRC rules of practice, hearing participants have the right to request commission review of the Board's decision, including the right to request that the effectiveness of the Board's decision be stayed, and that the Commission undertake review before license issuance if they believe the facts warrant such a review (10 CFR 2.786, 2.788).

Of course, absent a stay request, under the general rule which the Commission is now proposing to restore, the Board's decision would be immediately effective, and the Director would issue the ISFSI license within l

10 days after the decision, without being required to obtain additional, express Commission authorization to do so (See 10 CFR 9

2.764(a) and (b)).

i This opportunity for public hearing, including the opportunity to request Commission review before issuance of a specific license for interim storage of spent fuel in an ISFSI, would therefore continue even if the internal changes proposed in this document were adopted.

Furthermore, as discussed below, these proposed amendments would not change, in any manner, the scope of the agency's reviews of an application for a specific license for an ISFSI.

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Because these proposed amendments are administrative in l

i nature, they are intended not to affect the scope of the NRC's 1

environmental assessment or its comprehensive public health and safety review of an application for a specific licence for an ISFSI.

Upon receipt of an ISFSI license application, after i

1 publishing a notice of docketing in the Federal Register, the NRC staff reviews the license application and applicant's supporting i

safety analysis report (SAR) describing the proposed ISFSI.

This comprehensive, technical review by the NRC staff addresses all relevant public health and safety matters including site characteristics affecting construction and operating requirements for the proposed ISFSI, criteria for and design of the proposed installation, operation systems of the facility, site-generated I

waste confinement and management systems, measures to ensure the protection of the public and occupational workers from rad 3ation and radicactive materials, analyses of potential accidents that i

might occur at the facility, and the applicant's plans for the conduct of ISFSI operations.

In its review, the NRC staff may j

l require further submittals from the applicant as necessary to

)

l complete the ISFSI application, will thoroughly review all of the applicant's supporting technical information, and will j

i independently verify the applicant's safety analyses and design

)

calculations if necessary.

To document its review and conclusions, the NRC staff will prepare a comprehensive safety evaluation report (SER) detailing its safety findings and conclusions, as well as an environmental assessment (EA) for the

4 10 proposed specific license for interim' storage of spent fuel in an ISFSI.

As noted, interested members of the public may obtain copies of these documents from NRC.

None of these NRC staff technical activities would, in any way, be modified by this i

proposed amendment.

Under the proposed amendments, the Commission's express l

1 authorization would continue to be required before issu'.ce by the Director, NMSS, of any initial license for the acquisition, l

receipt or possession of spent fuel, high-level waste and associated radioactive material, for the purpose of storage at a 1

monitorea retrievable storage installation (MRS).

j Section-by-Section Analysis This portion of the notice of proposed rulemaking contains a section-by-section analysis of proposed amendments.

i A.

Rules of Practice (10 CFR 2.764).

I The Commission is proposing to amend 10 CFR 2.764(c) to eliminate the references in the section to "an independent spent fuel storage installation (ISFSI)."

As amended, the provision would continue to apply in the future to licensing of a monitored retrievable storage installation (MRS) under 10 CFR Part 72.

The i

i

11 amendment would therefore eliminate the requirement of express Commission authorization before issuance by the Director of NMSS (or the Director's designee) of each initial license for interim storage of spent fuel in an ISFSI.

The general rule would thus apply under which the Director, NMSS, would have delegated authority, when no public hearing on the application has been requested, to issue a license for an ISFSI under 10 CFR Part 72 following satisfactory completion of NRC's environmental assessment and public health and safety review, without obtaining additional, express authorization from the Commission to do so.

Purther, under the proposed amendment to 10 CFR 2.764, if the application is the subject of a public hearing, then the Director I

I would issue the license for an ISFSI only after an initial decision of the Atomic Safety and Licensing Board directing issuance of the license, but without the Director being required to obtain the additional, express authorization of the Commission to do so.

In this connection, 10 CFR 2.764(a) and (b) would be clarified to explicitly incorporate "a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage j

installation (ISFSI)" to thereby cover any application for a specific ISFSI license that is the subject of a public hearing.

i Under other provisions of the Commission's rules pertaining to the opportunity for public hearing that would not be changed, i

a party to the hearing could request Commission review and ask the Commission to stay the effectiveness of the Board's decision i

+

12 t

t (including any direction for issuance of any ISFSI license) f pending that review (10 CFR 2.786, 2.788).

If the Commission granted a stay, then the Director would not issue the license i

until the terms of the stay, if any, were met or until further 1

order of the Commission.

B.

Licensino Reauirements for ISFSIs (10 CFR 72.46).

i i

The proposed amendment of 10 CFR 72.46(d) would delete the

~

reference to "an ISFSI" in the last sentence of paragraph (d).

l As amended, the sentence would continue to apply to licensing of l

the MRS.

Thus, under the amendmenc, the Director, NMSS, would i

have delegated authority to issue a specific license for interim i

storage of spent fuel in an ISFSI.

He/she would not be required i

to seek the express authorization of the Commission to do so.

However, the Director's authority would continue to be subject to the limitation that the Commission will be fully and currently informed and will address any significant questions of policy relating to a specific license for interim storage of spent fuel in an ISFSI.

~

Environmental Impact:

Categorical Exclusion i

I The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1)

I

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13 and (3).

Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.

4 Paperwork Reduction Act Statement This proposed rule does not contain a new or amended information collection requirement subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.).

Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0136 and 0132.

Regulatory Analysis The Nuclear Regulatory Commission is proposing to make changes to internal procedures that are administrative in nature.

The changes will not have any significant impact on the public health and safety or the U.S. economy.

The proposed changes would create no new regulatory burdens, or result in the use of resources by NRC licensees or by the staff of the NRC or an Agreement State.

The Commission's current procedures require the-Director, NMSS, to obtain express authorization of the Commission before issuing a license to construct and operate an ISFSI.

The amendments, if adopted, would authorize the Director to issue a i

a

14 i

license for interim storage of spent fuel in an ISFSI without seeking express authorization from the Commission to do so.

Under either alternative, the economic costs are not expected to f

be significant in terms of time and resources expended by the Commission and other persons.

However, the costs of the proposed t'

amendments, in this regard, are likely to be less than the costs of the current procedure since the amendments would reduce the layers of agency review.

The foregoing discussion constitutes the regulatory analysis for this proposed rule.

1 I

Regulatory Flexibility Act Certification i

The proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities.

The j

proposed rule sets forth internal procedures of an administrative nature for issuance of licenses for ISFSIs.

Owners of nuclear power reactors do not fall within the scope of the definition of "smal.' entities" set forth in section 601(3) of the Regulatory i

Flexibility Act (15 U.S.C. 632) or the Small Business Size t

Standards set out in regulation issued by the Small Business Administration at 13 CFR Part 121.

Thus, in accordance with the l

4 Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the NRC hereby certifies that this rule, if promulgated, will not have a i

significant economic impact upon a substantial number of small t

entities.

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15 Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 72.62, i

does not apply to this proposed rule and that a backfit analysis i

is not required because these amendments, if adopted, would not l

involve any provisions which would impose backfits as defined in 10 CFR 72.62(a) (see also 10 CFR 50.109).

j i

l List of Subjects 10 CFR Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 72 - Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirements, Security measures, Spent fuel.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.

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16 the Nuclear Regulatory Commission is proposing to adopt amendments to 10 CFR Parts 2 and 72.

i PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND

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ISSUANCE OF ORDERS i

k 1.

The authority citation for Part 2 is revised to read as follows:

AUTHORITY:

Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.

2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.

5841); 5 U.S.C.

552.

i Sec. 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C.

2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114 (f),

Pub.

L.97-425, 96 Stat. 2213, as amended (42 U.S.C.

10134 (f) ) ;

sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C.

4332); sec. 301, 88 Stat. 1248 (42 U.S.C.

5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C.

2132, 2133, 2134, 2135, 2233, 2239).

Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073, (42 U.S.C. 2239).

Sections 2.200-2.206 also issued under secs. 161b, i, o,

182,

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186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C.

2201(b), (1), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 t

U.S.C. 5846).

Sections 2.600-2.606 also issued under sec. 102, Pub.

L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719 also issued under 5 U.S.C.

554.

Sections r

a 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C.

557.

Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub.

L.97-425, 96 Stat. 2232, 2241 (42 U.S.C.

10155, 10161).

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C.

552.

Sections 2.800 and 1

2.808 also issued under 5 U.S.C.

553.

Section 2.809 also issued under 5 U.S.C 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).

Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C.

2239); sec. 134, Pub. L.97-425, 96 Stat.

a 2230 (42 U.S.C. 10154).

Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239).

Appendix A also issued under sec.

6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).

Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C.

2021b et seq.).

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2.

In S 2.764, paragraphs (a), (b) and (c) are revised to read as follows:

E 2.764 Immediate effectiveness of initial decision directino issuance or amendment of construction permit or operatino license.

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18 (a) Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special t

circumstances, an initial decision directing the issuance or i

amendment of a construction permit, a construction authorization, an operating license, or a license under 10 CFR Part 72 to store I

spent fuel in an independent spent fuel storage installation (ISFSI) shall be effective immediately upon issuance unless the l

presiding officer finds that good cause has been shown by a party I

why the initial decision should not become immediately effective, subject to review thereof and further decision by the Commission i

upon petition for review filed by any party pursuant to S 2.786 or upon its own motion.

(b) Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special circumstances, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, notwithstanding the filing or granting of a petition for review, shall issue a construction permit, a construction i

authorization, an operating license, or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI), or amendments thereto, authorized by an initial decision, within ten (10) days from the date of issuance of the decision.

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(c) An initial decision directing the issuance of an initial 4

license for the construction and operation of a monitored retrievable storage installation (MRS) under 10 CFR Part 72 shall-become effective only upon order of the Commission.

The Director 4

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of Nuclear Material Safety and Safeguards shall not issue an initial license for the construction and operation of a monitored retrievable storage installation (MRS) under 10 CFR Part 72 until expressly authorized to do so by the Commission.

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PART 72 - LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF i

SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE i

3.

The authority citation for Part 72 continues to read as follows:

AUTHORITY:

Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (4 2 U.S.C.

2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, i

Pub. L.86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.

5841, 5842, 5846); Pub. L.95-601, sec. 10, 92 Stat.

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20 2951 (42 U.S.C.

5851); sec. 102, Pub. L.91-190, 83 Stat. 853~(42 U.S.C.

4332); Secs. 131, 132, 133, 135, 137, 141, Pub. L.97-425, j

96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L.

100-203, 101 Stat. 1330-235 (43 U.S.C.

10151, 10152, 10153, 10155, 10157, 10161, 10168).

Section 72.44(g) also issued under secs. 142 (b) and 148(c),

(d), Pub. L.

100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C.

10162(b), 10168 (c), (d).

Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C.

2239); section 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).

Section 72.96(d) also issued under sec. 145(g), Pub. L.

100-203, 101 Stat. 1330-235 (42 U.S.C.

10165(g).

Subpart J also issued under secs. 2(2), 2(15), 2(19),

117(a), 141(h), Pub. L.97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C.

10101, 10137(a), 10161(h)).

Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C.

10153) and sec. 218(a), 96 Stat. 2252 (4 2 U.S.C. 10198).

4.

In S72.46, paragraph (d) is revised to read as follows:

E 72.46 Public hearinas.

(d)

If no request for a hearing or petition for leave to intervene is filed within the time prescribed in the notice of

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proposed action and opportunity for hearing, the Director, Office of Nuclear Material Safety and Safeguards or the Director's designee may take the proposed action, and thereafter shall promptly inform the appropriate State and local officials and publish a notice in the Federal Recister of the action taken.

In accordance with S 2.764(c) of this chapter, the Director, Office of Nuclear Material Safety and Safeguards shall not issue an i

initial license for the construction and operation of an MRS until expressly authorized to do so by the Commission.

1 Dated at Rockville, Maryland, this day of l

For the Nuclear Regulatory Commission.

Samuel J.

Chilk, Secretary of the Commission.

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l ENCLOSURE 2

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Identical letter to:

Philip R.

Sharp cc:

Michael Bilirakis Joseph J. Lieberman cc:

Alan K. Simpson The Honorable Richard H.

Lehman, Chairman Subcommittee on Energy and Mineral Resources Committee on Natural Resources United States House of Representatives Washington, DC 20515

Dear Mr. Chairman:

In the near future, the Nuclear Regulatory Commission (NRC) intends to publish in the Federal Reaister the enclosed proposed rule.

The proposed rule would amend the NRC's regulations in 10 CFR Parts 2 and 72.

Specifically, the proposed rule would eliminate the need for express Commission authorization for each license for an independent spent fuel storage installation (ISFSI), by authorizing the NRC staff to issue such a license following satisfactory completion of the NRC safety and environmental reviews and after a public hearing, if requested, on the application.

The proposed rule is administrative in nature, would not affect the scope of NRC review of an ISFSI license application, and would not change the present opportunity for public hearing provided for in the NRC rules of practice.

The Commission believes the proposed rule would simplify the ISFSI licensing process, and could save money that would otherwise be expended for unnecessary agency reviews.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs

Enclosure:

Federal Register Notice cc:

Representative Barbara Vucanovich C

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NRC PROPOSES TO AMEND REGULATION GOVERNING LICENSING OF INDEPENDENT SPENT FUEL STORAGE INSTALLATION J

The Nuclear Regulatory Commission is proposing an amendment to its regulation governing the licensing of an independent spent fuel storage installation (ISFSI) to eliminate a requirement that the Commission itself authorize the issuance of such licenses.

The provision was added in 1980 during the Commission's i

consideration of a proposed final rule.

At that time, the Department of Energy was considering establishing a large number of regional spent fuel storage facilities, an option the Department later decided not to pursue.

In 1988, the Commission extended the requirement, together with the one-step licensing process contained in the regulation, to the requirements governing licensing of a Monitored Retrievable Storage Facility (MRS), when and if such a facility is proposed by the Department of Energy.

To date, five separate licenses have been issued authorizing the use of independent spent fuel storage installations, all l

specifically authorized by the Commission--for the Surry nuclear power plant in Virginia, the H.B. Robinson nuclear power plant in South Carolina, the Oconee nuclear power plant in South Carolina, the Ft.

St.

Vrain nuclear power plant in Colorado (now being i

decommissioned) and the Calvert Cliffs nuclear power plant in Maryland.

As proposed, the amendment would keep intact the requirement that the NRC staff conduct a detailed review of any application to store fuel in an independent spent fuel storage installation and

prepare a Safety Evaluation Report and Environmental Assessment detailing the results of the review.

In addition, the present requirement that the public be given notice of the receipt of such an application and offered an opportunity for a public hearing would be retained.

In the event a public hearing were held, a license could not be issued until the proceeding was complete and an Initial Decision was issued by the presiding Atomic Safety and Licensing Board.

In addition, hearing P

participants would retain the right to request Commission review of the Board's decision, including the right to request that the effectiveness of the Board's decision be stayed and that the Commission undertake review before license issuance.

Absent such a stay request, the Board's decision would be immediately effective and the staff could issue the license within 10 days and without being required to obtain additional express Commission authorization.

Written comments on the proposed amendments to Part 72 of the Commission's regulations should be received by (date). They should be addressed to the Secretary of the Commission, Nuclear Regulatory Commission, Washington, D.C.

20555, Attention:

Docketing and Service Branch.