ML20056C202
| ML20056C202 | |
| Person / Time | |
|---|---|
| Issue date: | 04/15/1993 |
| From: | Blaha J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Treby S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20056C203 | List: |
| References | |
| FRN-58FR31478, RULE-PR-2, RULE-PR-72 AE64-1-004, AE64-1-4, NUDOCS 9304280140 | |
| Download: ML20056C202 (1) | |
Text
-.
April 15, 1993 4'
MEMORANDUM FOR:
Stuart A. Treby Assistant General Counsel Agg /
for Rulemaking and fuel Cycle 7 00 FROM:
James L. Blaha Assistant for Operations Office of the Executive Director for Operations
SUBJECT:
DRAFT RULE ON COMMISSION APPROVAL OF A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72 As you requested in your memorandum of March 31, 1993, NMSS has reviewed the draft proposed rule to amend 10 CFR Parts 2 and 72, to eliminate any requirements for the Comission's express authorization prior to the staff's issuance of a specific license for independent spent fuel storage installations (ISFSI). We offer the following three general comments.
1.
Under the " Discussion" sections of both the Commission Paper and the Proposed Rule Federal Reaister notice, it may be useful to mention that DDE's decision not to pursue the option of large-scale, regional storage facilities was a result of the Nuclear Waste Policy Act of 1982 (NWPA).
The NWPA redirected the Nation's high-level waste (HLW) management efforts towards disposal of spent fuel in a repository, linked any interim Federal storage [i.e., monitored retrievable storage, (MRS)] to the schehle of the repository, and made utilities primarily responsible for providing their own interim spent fuel storage.
2.
With respect to proposed changes to 10 CFR 2.764(a) and (b), we do not believe there is any need to clarify these sections by explicitly incorporating "a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (.'Sr.9)."
Section 2.1117, of Subpart K, indicates that the provisions of ELbpart G are also applicable.
3.
In the "Backfit Analysis" section, shouldn't 10 CFR 72.62 be cited as not applying to this proposed rule 7 If you have any questions about these comments, please contact Fritz Sturz at 504-2684.
Orgnd sgrsd by
, James L G1ha James L. Blaha h[#
y Assistant for Operations 9
Office of the Executive Director for Operations Distribution:
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NUCLEAR REGULATORY COMMISSION a
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EDO Principal Correspondence Control FROM:
DUE: 04/14/93 EDO CONTROL: 0008736 DOC DT: 03/31/93 Stuart A. Treby FINAL REPLY:
OGC TO:
James L. Blaha FOR SIGNATURE OF:
- GRN CRC NO:
Blaha 4
DESC:
ROUTING:
REQUEST COMMENTS ON DRAFT RULE ON COMMISSION
{
APPROVAL OF A SPECIFIC LICENSE FOR AN ISFSI UNDER Taylor l
10 CFR PART 72 Sniezek Thompson DATE: 04/01/93 Blaha Beckjord, RES ASSIGNED TO:
CONTACT:
Nurley, NRR NMSS Bernero 3PECIAL INSTRUCTIONS OR REMARKS:
i i
.I 6
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EQB:
The Commissioners 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, 1993 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) 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 j
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:
'I Surry Power Station (Virginia Electric and Power Co.);
i 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).
Oconee Nuclear Station (Duke Power Co.); SECY-89-355 (November 28, 1989) (unopposed application).
St. Vrain Nuclear Generating Station (Public Service Co.
of Colorado); SECY-91-324 (October 16, 1991) (unopposed application).
l i
I r
2 Moreover, like the four previous ISFSI licenses, the Calvert Cliffs license application was uncontested.2 t
i 1
The NRC staf f's need to obtain express Commission authorization before issuing such an ISFSI license arises from 10 CFR 72.46(d),
which provides as follows:
l If no reauest for a hearina or cetition for leave to intervene is filed within the tit.$ orescribed.
., the
- Director, Office of Nuclear Material Safety and Safeguards or the Director's designee may take the l
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 acc rdance with 5 2.764 (c) of this chapter, the Director.
Office of Nuclear Material Safety and Safecuerds shall not issue an initial license for the construction and 1
operation of an ISFSI or an MRS until expressly f
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 i
license should not be effective until Commission. review was I
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 l
withdrawn before any licensing board hearing or initial decision, and the application was therefore uncontested.
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
i 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.
8 Egg Memorandum for Chairman Palladino, et al., from Victor Stello, Jr., Executive Director for Operations, dated June 5,1986;.
i subj: Backfitting and Immediate Effectiveness Provisions of 10 CFR Part 72.
See also Final Rule on Licensing Requirements for the Storage of Spent. Fuel. in an ' Independent : Spent Fuel Storage i
Installation, 45 F.R.
74,693, 74695 (November 12, 1980) ("Section 2.764.
has been amended by adding a new paragraph (c) ' which
3 i
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:
i 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 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, 4
prepares an environmental assessment and determines that license i
issuance would conform to all statutory and regulatory
)
requirements, and after an opportunity for a public hearing has been offered (including the completion of any such hearing if one is held).
i 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 l
Commission decided that one-step licensing for such DOE facilities should not be effective until Commission e
review was complete.
DOE's subsequent programmatic decision was not to pursue the option of large-scale, regional storage facilities.
- Thus, in proposing to 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 Safecuards shall not issue such an initial license until expressly authorized to do so by the Commission. ") (Emphasis added).
I
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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 interim 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 i
Commission authorization to do so in each instance. This experience also supports the Commission belief the j
special exceptia 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 Corrission supervision and direction.
The proposed revision concerns only internal agency i
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 j
appropriately conditioned in light of the Board's i
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 1
- 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 issue the ISFSI license within 10 days after the decision, without being required to obtain additional, express Commission authorization to do so.
See 10 CFR 2.764(a) and (b).
l
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The proposed rulemaking amendments are administrative in nature, and therefore would not effect 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 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 rulemak.7g 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, 1993 SRM to which this paper responds.
COORDINATION:
This paper has been coordinated with the Executive Director for Operations who concurs in the paper's recommendation.
RECOKMENDATION:
That the Commission approve the attached notice of proposed rulemaking and associated attached documents.
William C.
Parler General Counsel
Enclosures:
1.
Notice of Proposed Rulemaking 2.
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i
NUCLEAR REGULATORY COMMISSION 10 CFR 2.764, "Immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license" 10 CFR 72.46, "Public Hearings" AGENCY:
Nuclear Regulatory Commission ACTION:
Proposed rule
SUMMARY
The Nuclear Regulatory Commission (NRC) is proposing to amend its procedures under which the Director of Nuclear Materials l
Safety and Safeguards can issue a site-specific license to a qualified applicant, for interim storage of spent fuel in an independent spent fuel storage installation (ISFSI),
following
)
I satisf actory completion of NRC safety and environmental reviews and
)
i after any public hearing on the application.
The proposed amendment is administrative in nature, 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.
I DATE:
The comment period expires (seventy-five days after publication in the Federal Register). Comments received after this
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date will be considered if it is practical to do so, but the 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 a.m. and 4:15 p.m. Federal workdays.
Copies of comments may be examined at the NRC Public Docume'It Room, 2120 L Street, NW (Lower Level), Washington, DC.
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, 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
3 Energy Act of 1954 (42 U.S.C.
2011 et seq.) and the Commission's regulations.
An ISFSI is facility specifically designed and constructed for such interim spent fuel storage, after use of the nuclear fuel as a source of energy in a nuclear power reactor, before its shipment to the U.S.
Department of Energy's planned geologic repository for disposal of radioactive vaste.
Part 72 is limited in scope to the temporary storage (up to 20 years with renewal at the option of the NRC) of spent fuel in an ISFSI.
Ti.is rulemaking is for the purpose of proposing a change to improve the Commission's procedures for issuance of a specific ISFSI license to a qualified applicant.
Discussion The Commission is proposing to amend its procedures which
)
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 10 CFR Part 72, after the NRC completes a comprehensive, documented public health and safety review, prepares an environmental assessment and j
determines that license issuance would conform to all statutory and
)
regulatory requirements, and after an opportunity for a public hearing has been offered (including the completion of any such hearing if one is held).
The amendment would end the current internal practice under which the Director, in the past, obtained
4 the Commission's express authorization for each ISFSI license, after the NRC review and determination that a license should be issued under 10 CFR Part 72, but before the Director actually issued the license.
However, the amendment is designed not to affect, in any way, existing procedures for the Imc review or the opportunity for public hearing.
The existing rule, which is the subject of this rulemaking and which reflects the internal practice the Commission is proposing to change, now provides in pertinent part that the NRC " Director of Nuclear Material Safety and Safeguards shall not issue an initial license for the construction and operation of an.
. ISFSI under 10 CFR Part 72 until expressly authorized to do so by the Commission."
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 licenses upon favorable completion of NRC reviews, as well as the 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 I
licensing and regulation" for facilities other than nuclear reactors.
Thus, in this rulemaking, the Commission is proposing to end the special exception described above, and thereby give the Director comparable authority to issue a license for the interim storage of spent fuel in an ISFSI.
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The special exception which the commission is proposing to
- change, was added to the Commission's rules in 1980.
See
" Licensing Requirements for the Storage of Spent Fuel in an l
Independent Fuel Spent Storage Installation," 45 F.R.
74,693, 74,695 (November 12, 1980).
At that time, it was understood that an option under consideration by the Department of Energy (DOE) was the interim storage of spent fuel in a number of large, regional spent fuel storage facilities.
Anticipating that the one-step licensing process in Part 72 would be used for licensing such DOE facilities, the Commission directed that any license should not be effective until Commission review was complete.
However, since that time, DOE has 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 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 interim spent fuel storage option subsequently change.
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.
In particular, licenses were issued for interin spent fuel storage in an ISFSI at Surry Power Station (Virginia Electric and Power Co.), H.B. Robinson Unit 2 (Carolina
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Power and Light Co.), Oconee Nuclear Station (Duke Power Co.), Fort i
St.
Vrain Nuclear Generating Station (Public Service Co.
of Colorado), and Calvert Cliffs Nuclear Power Plant (Baltimore Gas and Electric Co.).
On the basis of this experience, the Commission believes the special exception, requiring express Commission authorization in every case, is no longer needed. Therefore, since the current practice creates an additional, unnecessary layer of agency review, the Commission believes it can simplify the 1SFSI 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, NMSS will continue to carry out licensing of the interim storage of 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 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
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resolution. These internal mechanisms, which the Commission is not proposing to change, ensure that every specific license for interim spent fuel storage in an ISFSI is issued under the supervision and direction of the Commission.
Further, 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 procedures.
The Commission's existing opportunity for public hearing, as described below, would therefore 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 Recister to potentially interested entities and persons.
10 CFR 2.105, 72.46(a). Among other things, the notice indicates that any person whose interest may be affected may file a request for 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, and they may request a hearing or provide written l
comments before any final NRC action on an ISFSI license application.
If a hearing on the application is held before an Atomic Safety and Licensing Board, issuance of a I
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specific license for an ISFSI by NRC must await completion of the 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.
Under NRC rules of practice, hearing participants have the right to request Commission review of the Board's decision, inMuding 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 2.78 6, 2.78 8.
Of course, absent such a stay
- request, under the general rule which the Commission is now proposing to restore, the Board's decision would be immediately ef fective, and the Director would issue the ISFSI license within 10 days after the
- decision, without being required to obtain i
additional, express Commission authorization to do so.
Me 10 CFR 2.764(a) and (b).
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The opportunity for public hearing described above, 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 notice were adopted.
- Further, as discussed below, the proposed amendments in this rulemaking 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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Since the amendments proposed in this rulemaking are administrative in nature, they are intended not to 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.
Upon receipt of an ISFSI license application, after publishing a notice of docketing in the Federal Peaister, the NRC staff reviews the license application and applicant's supporting safety analysis report (SAR) describing the proposed ISFSI.
This comprehensive, technical review by the NRC staff addresses all j
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 waste confinement and management systems, measures to ensure the j
protection of the public and occupational workers from radiation and radioactive materials, analyses of potential accidents that j
might occur at the facility, and the applicant's plans for the conduct of ISFSI operations.
In its review, the staff may require further submittals from the applicant as necessary to complete the ISFSI application, will thoroughly review all of the applicant's supporting technical information, and will 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 proposed specific license for interim storage of spent
10 fuel in an ISFSI.
As noted, interested members of the public may obtain copies of these documents from NRC.
None of these staff technical activities would, in any way, be modified by the proposed I
procedural amendment that is the subject of this rulemaking.
I i
Under the proposed amendments, the Commission's express authorization would continue to be required before issuance by the
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Director, NMSS of any initial license for the acquisition, receipt j
or possession of spent fuel, high-level waste and associated radioactive material, for the purpose of storage at a monitored retrievable storage installation (MRS).
There follows a detailed
)
description of the proposed rulemaking amendments.
i Section-by-Section Analysis This portion of the notice of proposed rulemaking contains a section-by-section analysis of proposed amendments.
A. Rules of Practice (10 CFR 2.764).
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
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.
Further, under the proposed amendment to 10 CFR 2.764, if the application is the subject of a public hearing, then the Director 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 installation (ISFSI)" to thereby cover any application for a specific ISFSI license that is the subject of a public hearing.
e Under other provisions of the Commission's rules pertaining to the opportunity for public hearing that would not be changed, a
party to the hearing could request Commission review and ask the Commission to stay the effectiveness of the Board's decision l
v 12 (including any direction for issuance of any ISFSI license) pending that review.
10 CFR 2.786, 2.788.
If the Commission granted such j
a stay, then the Director would not issue the license until the terms of the stay, if any, were net or until further order of the commission.
B.
Licensina Recuirements for ISFSIs (10 CFR 72.46).
The proposed amendment of 10 CFR 72.4 6 (d) would delete the j
reference to "an ISFSI" in the last sentence of paragraph (d).
As amended, the sentence would continue to apply to licensing of the j
MRS.
Thus, under the amendment, the Director, NMSS would have delegated authority to issue a specific license for interim storage of spent fuel in an ISFSI.
He would not be required 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.
1 Environmental Impact:
Categorical Exclusion l
The NRC has determined that this proposed rule is the type of l
action described in categorical exclusion 10 CFR 51.22 (c) (1) and
13 (3).
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.
Paperwork Reduction Act Statement This rule contains no information collection requirements and, therefore, is nut subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
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 i
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 license for interim storage of spent fuel in an ISFSI without seeking express authorization from the Commission to 'do so.
Under either j
alternative, the economic costs are not expected to be significant, I
4
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14 in terms of time and resources expended by the Commission and other persons.
However, the costs of the proposed 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.
Regulatory Flexibility Act Certification The proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities.
The 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 "small entities" set forth in section 601(3) of the Regulatory Flexibility Act (15 U.S.C.
632) or the small Business Size Standards set out in regulation issued by the Small Business Administration at 13 CFR Part 121.
Thus, in accordance with the Regulatory Flexibility Act, the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities.
Backfit Analysis
15 The Nuclear Regulatory Commission has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule and that a
backfit analysis is not required because these amendments, if adopted, do not involve any provisions which would impose backfits as defined in 10 CFR 50.109 (a) (1).
1 List of Subjects 1
10 CTR 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 CTR Part 72 Manpower training programs, Nuclear materials, occupational safety and health, Reporting and recordkeeping requirements, l
Security messitres, Spent fuel.
F-the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, ^he Energy Reorganization Act of 1974, as amended, and 5 U.S.C.
553, the i
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16 Nuclear Regulatory Commission is proposing to adopt amendments to 10 CFR Parts 2 and 72.
After consideration of public comments, a final rule and notice of final rulemaking will be prepared and published.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS 1.
The authority citation for Part 2 continues 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.
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 (4 2 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
17 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, 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 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 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 are also issued under secs.135, 141, Pub. L. 97-4 2 5, 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 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. 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 (4 2 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.).
2.
In S 2.764, paragraph (c) is revised to read as follows:
E 2.764 Imnediate effectiveness of initial decision directina issuance or amendment of construction oermit or operatina license.
e 18 (a) Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special circumstances, an initial decision directing the issuance or amendment of a construction permit, a construction authorization, an operating license, or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI) shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown by a party why the initial decision should not become immediately effective, subject to review thereof and further decision by the Commission 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, nothwithstanding the filing or granting of a petition for review, shall issue a consruction permit, a construction 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.
(c) An initial decision directing the issuance of an initial license for the construction and operation of a
monitored
l 19 retrievable storage installation (MRS) under 10 CFR Part 72 shall i
become effective only upon order of the Commission.
The Director 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.
PART 72 LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE 3.
The authority citation for Part 72 continues to read as follows:
i 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, l
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, Pub.
L.86-373, 73 Stat. 688, as amended (42 U.S.C.
2021); sec. 201, as l
amended, 202, 206, 88 Stat.1242, as amended,1244, 124 6 (42 U.S.C.
5841, 5842, 5846); Pub.
L.95-601, sec. 10, 92 Stat. 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. 97-4 2 5, 96 Stat.
i
4 20 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, j
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),
i 117(a), 141(h), Pub.
L.97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C.
10101, 10137(e), 10161(h)).
4.
In 572.46, paragraph (d) is revised to read as follows:
S 72.46 Public hearinas.
I (d)
If no request for a hearing or petition for leave to intervene is filed within the time prescribed in the notice of 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
]
k 4
e 21 accordance with 5 2.764 (c) of this chapter, the Director, Office of Nuclear Material Safety and Safeguards shall not issue an initial license for the construction and operation of an MRS until expressly authorized to do so by the Commission.
Dated at Rockville, Maryland this day of For the Nuclear Regulatory Commission Samuel J.
- Chilk, Secretary of the Commission
4GM-/
\\
hd/h NOTE FOR BILL REAMER, OGC Attached is a draft public announcement of the proposed amendment to Part 72 which would delete the requirement that the Commission authorize issuance of a license for the use of an independent Please let me have any comments spent fuel storage installation.
and/or suggestions before including a draft with your Commission paper.
Frank Ingram - OPA 4/22/93 - 504-2240 l
i
4 NRC PROPOSES TO AMEND REGULATION GOVERNING LICENSING OF INDEPENDENT SPENT FUEL STORAGE INSTALLATION I
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.
f The provision was added in 1980 during the Commission's f
At that time, the consideration of a proposed final rule.
i Department of Energy was considering establishing a large number an option the of regional spent fuel storage facilities, Department later decided not to pursue.
the Commission extended the requirement, together In 1988, 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 f acility is proposed by the Department of Energy.
five separate licenses have been issued authorizing To date, the use of independent spent fuel storage installations, all specifically authorized by the Commission--for the Surry nuclear power plant in Virginia, the H. B. Robinson nuclear power plant the Oconee nuclear power plant in South in South Carolina, Vrain nuclear power plant in Colorade (now Carolina, the Ft. St.
and the Calvert Cliffs nuclear power plant being decommissioned) in Maryland.
the amendment would keep in tact the As proposed, requirement that the NRC staff conduct a detailed review of any application to store fuel in an independent spent fuel storage
4 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 In the event opportunity for a public hearing would be retained.
a public hearing were held, a license could not issue until the proceeding was complete and an Initial Decision was issued by the In addition, presiding Atomic Safety and Licensing Board.
hearing 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 i
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 D.C.
20555, Attention:
Regulatory Commission, Washington, Docketing and Service Branch.
--r.
m
-A-r