ML20057B189

Requests Commission Approval of Proposed Rulemaking to Eliminate Requirement of Prior Commission Approval for Specific License for ISFSI Under 10CFR2 & 72.Notice of Proposed Rulemaking & Addl Info Encl

ML20057B189
Person / Time
Site:	Oconee, Surry, Robinson
Issue date:	09/14/1993
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
Shared Package
ML20056C203	List: ML20056C202 ML20057B149 ML20057B151 ML20057B154 ML20057B185 ML20057B189 ML20057B235
References
FRN-58FR31478, RULE-PR-2, RULE-PR-72 AE64-1-006, AE64-1-6, NUDOCS 9309200133
Download: ML20057B189 (35)

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The Commissioners T_QB:

IEOJ: 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:

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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) 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 Povember 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) . .

Oconee Nuclear Station (Duke Power Co. ) ; SECY-89-355 (November 28, 1989) (unopposed application) .

Contact:

Bill Reamer, OGC 504-1640 9309200133 930914 i ')' '

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- St. Vrain Nuclear Generating Station (Public 'yervice Co. l of Colorado); SECY-91-324 (October 16, 1991) (unopposed j application). )

i Moreover, like the four previous ISFSI licenses, the Calvert Cliffs license application was uncontested.1 ,

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 petition for leave to intervene is filed within the time prescribed. . . , the j 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 Register 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 expressly authorized to do so by the Commission.

10 CFR S 72.4 6 (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, cnd that the Director shall not issue an initial license for an ISFSI or MRS until expressly authorized by the Commission.

3 See Memorandum for Chairman Palladino, et al., from Victor Stello, Jr. , Executive Director for Operations, dated June 5,1986; subj: Backfitting and Immediate Effectiveness Provisions of 10 CFR

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issuance of any initial license for a DOE monitored retrievable storage facility (MRS) when it adopted the Part 72 one-step i 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 '.egally 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 NMSS to issue a specific license for an ISFSI under 10 CFR Part 72, after the NRC staff completes its public health and safety review, prepares an environmental assessment and 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 notice of proposed rulemaking explains the basis and purpose of l the proposed rule essentially as follows: l i

10 CFR 2.764 and 10 CFR 72.46, as they currently exis.,

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 l NRC reviews, as well as the completion of any public i 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 Commission decided that one-step licensing for such DOE j

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 Ccmmission 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) .

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< 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 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 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 Conaission review of the Board's decision, including tne right to request that the ef fectiveness 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

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

l The proposed rulemaking amendments are administrative in  !

nature, and therefore would not affect the scope of the  !

NRC's environmental assessnent or its comprehensive l public health and safety review of an application for a d

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. j i

Under the p;'. posed amendments, the Comn.ission'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 i responds.

COORDINATION:

I This paper has been coordinated with the Executive Director for  :

Operations who concurs in the paper's recommendation.

EFCOMMENDATION:

That the Commission:

1. AppJove publication of the- attached Notice of proposed Rulemaking (Enclosure 1).

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2. Ceftify e the proposed rule, if adopted, will not  ;

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have a negative economic impact on a substantial number of small entities, in order to satisfy requirements of the Regulatory Flexibility Act, 5 l U.S.C. 605(b).

3. Note:  ;

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a. The rulemaking would be published in the Federal Recister for a 75-day public comment

< period;

b. The appropriate Congressional committees will be informed (Enclosure 2);

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c. A public announcement (Enclosure 3) will be issued;

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 Regulatory 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.

1 4

/

William C. Parler General Counsel

Enclosures:

1. Notice of Proposed Rulemaking

2. Congressional Letters

3. Public Announcement

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[7590-01)

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 72 RIN: 3150-AE64 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Applicant ,

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to I

amend its procedures under which the Director of Nuclear j 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 l l

amendment is administrative in nature and would eliminate the need for express Commission authorization for each ISFSI license, i 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

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. ATTF: 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  !

I independent spent fuel storage installation (ISFSI) if NRC l 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

3 designed and constructed for interim spent fuel storage, after use of the nuclear fuel as a source of energy in a nuclear power 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 years with renewal at the option of the NRC) of spent fuel in an j l

ISFSI. This rulemaking proposes a change to improve the Commission's procedures for the issuance of a specific ISFSI i

license to a qualified applicant.

I Discussion l The Commission is proposing to amend the procedures that l 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 l

- 10 CFR Part 72, after the NRC completes a comprehensive, documented, public health and safety review; prepares an environmental assessment and determines that issuing the license wculd conform to all statutory and regulatory requirements; and after an opportunity for a public hearing has been offered and any requested hearing is complete. The amendment would end the current internal practice'under which the Director ebtained the Commission's express authorization for each ISFSI license, after the NRC review and determination that a license should be issued

4 under 10 CFR Part 72, but before the Director actually issued the license. The proposed rule would not affect, in any way, existing procedures for the NRC review or the opportunity for public hearing.

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

" Director of Nuclear 1..iterial 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." (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 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 licensing and regulation" for facilities other than nuclear reactors. The Commission is proposing to end the special exception, and give the Director comparable authority l to issue a license for the interim storage of spent fuel in an ISFSI.

The special exception was added to the Commission's rules in 1980. See " Licensing Requirements for the Storage of Spent Fuel in an Independent Fuel Spent Storage Installation," 45 FR 74693;

5 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 this type of DOE facility, the Commission directed that any license should not be effective until Commission review was complete. .

However, following enactment of the Nuclear Waste Policy Act of 1982, which made utilities primarily responsible for providing their own interim spent fuel storage, DOE elected not to pursue the option of large-scale, regional storaga facilities. Thus, in proposing to revise the internal procedure incorporating the special exception, the Commission would be eliminating a l 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 i

issued five specific licenses for storage of spent fuel in ISFSIs  !

I at reactor sites after obtaining express Commission authorization to do so. In particular, licenses were issued for interim spent fuel storage in an ISFSI at Surry Power Station (Virginia Electric and Power Co.), H.B. Robinson Unit 2 (Carolina Power and Light Co.), Oconee Nuclear Station (Duke Power Co.), Fort St.

Vrain Nuclear Generating Station (Public Service Co. of I

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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.

Because the current practice creates an additional, unnecessary layer of agency review, the Commission believes it can 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 comparable licensing actions, the Director, NMSS j will continue to carry out licensing of the interin storage of l spent fuel in an ISFSI under Commission supervision and i

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 l l

proposed significant licensing actions (which would include l l

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

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

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7 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 j 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 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 2.105, 72.46(a)). Among other things, the notice indicates that any persor. 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. They may request a hearing or provide ,

written ;omments before any final NRC action on an ISFSI license application (10 CFR 2.105). If a hearing on the application is l held before an Atomic Safety and Licensing Board, issuance of a ,

specific license for an ISFSI by NRC must await completion of the 9

8 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 4

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)).

This opportunity for public hearing, including the opportunity to request Commission review before issuance of a l i

specific license for interim storage of spent fuel in an ISFSI, l l

would therefore continue even if the internal changes proposed in j this document were adopted. Furthermore, as discussed below, i

these proposed amendments would not change, in any manner, the i l

scope of the agency's reviews of an application for a specific license for an ISFSI. l i

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9 Because these proposed amendments 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 Register, the NRC staff reviews the license application and applicant's supporting l

safety analysis report (SAR) describing the proposed ISFbI. This l

i comprehensive, technical review by the NRC staff addresses all relevant public health and safety matters including site i 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 ,

l waste confinement and management systems, measures to ensure the l protection of the public and occupational workers from radiation ,

and radioactive materials, analyses of potential accidents that might occur at the facility, and the applicant's plans for the conduct of ISFSI operations. In its review, the NRC staff may l

require further submittals from the applicant as necessary to i I

complete the ISFSI application, will thoroughly review all of the applicant's supporting technical information, and will l independently verify the applicant's safety analyses and design l l

calculations if necessary. To document its review and y conclusions, the NRC staff will prepare a comprehensive safety  :

evaluation report (SER) detailing its safety findings and l conclusions, as well as an environmental assessment (EA) for the l

l

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 proposed amendment.

Under the proposed amendments, the Commission's express authorization would continue to be required before issuance by the Director, NMSS, of any initial license for the acquisition, receipt or possession of spent fuel, high-level waste and associated radioactive material, for the purpose of storage at a monitored retrievable storage installation (MRS). l l

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

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 I application is the subject of a public hearing, then the Director v

would issue the license for an ISFSI only after an initial i 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.

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

12 (including any direction for issuance of any ISFSI license) pending that review (10 CFR 2.786, 2.788). If the Commission granted a stay, then the Director would not issue the license until the terms of the stay, if any, were met or until further order of the Commission.

B. Licensino Requirements for ISFSIs (10 CFR 72.46).

The proposed amendment of 10 CFR 72.46(d) would delete the reference to "an ISFSI" in the last sentence of paragraph (d).

As amended, the sentence would continue to apply to licensing of the MRS. Thus, under the amendment, the Director, NMSS, would have delegated authority to issue a specific license for interin storage of spent fuel in an ISFSI. He/she 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.

Environmental Impact: Categorical Exclusion The NEC has determined that this proposed rule is the type g of action described in categorical exclusion 10 CFR 51.22 (c) (1)

13 i

and (3). Therefore, neither an environmental impact statement l

nor an environmental assessment has been prepared for this l proposed rule.

l l

1 Paperwork Reduction Act Statement l

l This proposed rule does not contain a new or amended R 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.

J 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 1

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14 license for interin 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 be significant 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.

1 Regulatory Flexibility Act Certification i

The proposed rule, if adopted, will not have a significant l

economic impact on a substantial number of small entities. The l l

proposed rule sets fcrth internal procedures of an administrative j 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 l 1

Standards set out in regulation issued by the Small Business Administration at 13 CFR Part 121. Thus, in accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities.

t 15 i

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 72.62, does not apply to this proposed rule and that a backfit analysis is not required because these amendments, if adopted, would not involve any provisions which would impose backfits as defined in 10 CFR 72.62(a) (see also 10 CFR 50.109).

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List of Subjects 10 CFR Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, j 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 naterials, 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. 553, l l

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

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

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

1 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 (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,

17 i 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 ,

i U.S.C. 2201(b), (i) , (o) , 2236, 2282) ; sec. 206, 88 Stat. 1246 (42 i

U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, l 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 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 ,

i 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 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. l l

2021b et seq.).

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

I S 2.764 Immediate effectiveness of initial decision directina issuance or amendment of construction permit or operatina license.

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18 (a) Except as provided in paragraphs (c) through (f) of this l 4

section, or as otherwise ordered by the Commission in special i

circumstances, an initial decision directing the issuance or '

amendment of a construction permit, a construction authorization, l 4

an operating license, or a license under 10 CFR Part 72 to store 1

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

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 d

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  :

, t 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

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appropriate, notwithstanding the filing or granting of a petition i for review, shall issue a construction permit, a construction i

authorization, an operating license, or a license under 10 CFR l 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 l of the decision.

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4 19 (c) An initial decision directing the issuance of an initial  :

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 of Nuclear Material Safety and Safeguards shall not issue an initial license for the construction and operation of a monitored  :

I retrievable storage installation (MRS) under 10 CFR Part 72 until r

! expressly authorized to do so by the Commission.

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PART 72 - LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF 1

SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE ,

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, i

948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 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 amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 584 6) ; 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, 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, 222 ,

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 (42 U.S.C. 10198).

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

S 72.46 Public hearings.

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

1 21 f proposed action and opportunity for hearing, the Director, Office of Nuclear Material Safety and Safeguards or the Director's ,

r designee may take the proposed action, and thereafter shall j promptly inform the appropriate State and local officials and [

publish a notice in the Federal Recister of the action taken. In ;

accordance with 5 2.764(c) of this chapter, the Director, Office

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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.

l Dated at Rockville, Maryland, this day of ,

l 1993. ,

l For the Nuclear Regulatory Commission.

l Samuel J. Chilk, Secretary of the Commission.

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ENCLOSURE 2 l

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Identical letter to:

Philip R. Sharp cc: Michael Bilirakis l Joseph J. Lieberman cc: Alan K. Simpson The Honorable Richard H. Lehman, Chairman Subcommittee on Energy and Mineral Resources I Committee on Natural Resources United States House of Representatives Washington, DC 20515 i

Dear Mr. Chairman:

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

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.

i Sincerely, ,

i 1

l Dennis K. Rathbun, Director Office of Congressional Affairs

Enclosure:

Federal Register Notice j cc: Representative Barbara Vucanovich  ;

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

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 t

the use of independent spent fuel storage installations, all ,

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

the Ft. St. Vrain nuclear power plant in Colorado (now being 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 i i

store fuel in an independent spent fuel storage installation and l

1

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

In addition, the present requirement that the public be given

i notice of the receipt of such an application and offered an opportunity for a public hearing would be retained. In the event i 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 participants would retain the right to request Commission review of l

the Board's decision, including the right to request that the I 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 l

10 days and without being required to obtain additional express i i

Commission authorization. j i

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

Commission, Washington, D.C. 20555, Attention: Docketing and i Service Branch.

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• SECY PAPER DISTRIBUTION /27

, MEETING j POLICY AFFIRMATION SECY-RULEMAKING I NOTATION Reviewed by l ADJUDICATORY NEGATIVE CONSENT l NOTE: Classified: Comissioners (1 each) ~

INFORMATION OGC (2), SECY (3), Central Files (1)

CLASSIFICATION l r

CHAIRMAN SELIN (2) EXEC DIR FOR OPERATIONS (3) 3 COMMISSIONER ROGERS (2) DEPUTY EXEC DIRECTORS (2) 2-ADMINISTRATION (1) (2)** I COMMISSIONER CURTISS (2)

CONTROLLER (3) l COMMISSIONER REMICK (3) _

COMMISSIONER DE PLANQUE (3) IRM (3) (4)**

SECY (10) (30-80 FOR MEETING) AE00 (5) l OGC (12) iS NUC MAT SAFETY & SAFEGUARDS (5)

INSPECTOR GENERAL (1) NUCLEAR REACTOR REGULATION (18)

LSSADMINISTRATOR(1) NUCLEARPEGULATORYRESEARCH(17)

CONGRESSIONAL AFFAIRS (2) 0FFICE OF CONSOLIDATION (1)

INTERNATIONAL PROGRAMS (2) 0FFICE OF ENFORCEMENT (1)

PUBLIC AFFAIRS (2) INVESTIGATIONS (2) 0FFICEOFPERSONNEL(1) i l

STATE PROGRAMS (2) SDBU/CR(1)

FEDERAL LIAISON PROG. MGR, SP (1) I DOCUMENT CONTROL DESK (1) i I  !

FILES CENTER (1) _

POLICY PLANNING (2)

REGIONAL OFFICES: (C&RBRANCH,SECY) ACRS(16)

RI - KING OF PRUSSIA (2) ACNW(6)

RII - ATLANTA (2) ASLBP(2)

RIII - CHICAGO (2) CAA (2)

RIV - DALLAS (2)

RV - SAN FRANCISCO (2)

• • If Rulemaking TOTAL HUMBER OF COPIES:

RETURN ORIGINAL TO: FS., -

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c. A public announcement (Enclosure 3) will be issued;

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 Regulatory 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.

l l

William C. Parler  !

General Counsel ,

Enclosures:

i

1. Notice of Proposed Rulemaking i

2. Congressional Letters  !

3. Public Announcement i

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RULEMAKING ISSUE i ron: The( N M PP W te)

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 I 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, i

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) l 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) .

- Oconee Nuclear Station (Duke Power Co. ) ; SECY-89-355 (November 28, 1989) (unopposed application) .

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Contact:

Bill Reamer, OGC l 504-1640 g l c:rD DTb&&V NOTE: TO BE MADE PUBLICLY AVAILABLE WHEN THE FINAL SRM IS MADE AVAILABLE.  !

4 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.2 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 Detition 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 Faderal Reaister of the action taken. In accordance with S 2.764 (c) of this chapter, the Directora l Office of Nuclear Material Safety and Safeguards shall I not issue an initial license for the construction and i 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 i 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, i regional spent fuel storage facilities; because Part 72 adopted a l one-step licensing process, the Commission directed that any license should not be effective until Commission review was complete.3 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.  !

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S_eg Memorandum for Chairman Palladino, et al., from Victor l Stello, Jr. , Executive Director for Operations, dated June 5,1986; subj: Backfitting and Immediate Effectiveness 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 NMSS to issue a specific license for an ISFSI under 10 CFR Part 72, after the NRC staff completes its public health and safety review, I prepares an environmental assessment and determines that license issuance would conform to all statutory and regulatory requirements, and after an opportunity for a public hearim 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 HMSS full l authority to issue licenses upon favorable completion of i 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 i commission decided that one-step licensing for such DOE l l

1 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 I 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 Safeguards shall not issue such an initial license until expressiv authorized to do so by the Commission.") (Emphasis added) .

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facilities should not be effective until Comm!ssion review was complete. DOE's subsequent programnatic 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 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 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 i 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 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 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 i 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

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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 i 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 l authorization would continue to be required before '

issuance by the Director, NMSS of any initial license to ,

DOE for an MRS. i 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.

l COORDINATION:

This paper has been coordinated with the Executive Director for Operations who concurs in the paper's recommendation.

4 RECOMMENDATION:

That the Commission: ,

1. Approve 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 l 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 Recrister for a 75-day public comment period; i  !

b. The appropriate Congressional committees will  ;

be informed (Enclosure 2);

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c. A public announcement (Enclosure 3) will be issued;

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 Regulatory 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.

William C. Parler General Counsel  !

Enclosures:

1. Notice of Proposed Rulemaking

2. Congressional Letters

3. Public Announcement l

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

Commission Staff Office comments, if any, should be submitted to the [

Commissioners NLT May 7, 1993, with an information copy to the Office of  ;

the Secretary. If the paper is of such a nature that it requires additional  ;

review and comment, the Commissioners and the Secretariat should be apprised i of when comments may be expected. ,

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DISTRIBUTION: )

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CAA OIG j PA i OCA  !

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NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 72 RIN: 3150-AE64 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Applicant 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 safety and Safeguards can issue a si'c e-specific license to a qualified applicant for the interim storage of spent fuel in 1 an independent spent fuel storage installation (ISFSI) following satisfactory completion of NRC safety and environmental reviews I and after any public hearing on the application.- The proposed  ;

amendment is administrative in nature and would eliminate the ..

, i need for express Commission authorization for each ISFSI license, i

but would not affect the scope of NRC review of an ISFSI license application or change the present opportunity for public hearing l 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 i

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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

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designed and constructed for interim spent fuel storage, after l use of the nuclear fuel as a source of energy in a nuclear power 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 years with renewal at the option of the NRC) of spent fuel in an  !

ISFSI. This rulemaking proposes a change to improve the Commission's procedures for the issuance of a specific ISFSI license to a qualified applicant.

Discussion l

The Commission is proposing to amend the procedures that authorize the NRC Director of Nuclear Material Safety and i

Safeguards (or the Director's designee) to issue a specific l i

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 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 any requested hearing is complete. The amendment would end the l 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

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4 under 10 CFR Part 72, but before the Director actually issued the license. The proposed rule would not affect, in any way, existing procedures for the NRC review or the opportunity for public hearing.

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 issue an initial license for the construction and operation of an

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

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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 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 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.

The special exception was added to the Commission's rules in 1980. See " Licensing Requirements for the Storage of Spent Fuel I l

in an Independent Fuel Spent Storage Installation," 45 FR 74693; I

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November 12, 1980. At that time, it was understood that an option under consideration by the Department of Energy (DOE) was the interin 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 this i l

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

should not be effective until Commission review was complete, j However, following enactment of the Nuclear Waste Policy Act of 1982, which made utilities primarily responsible for providing their own interin 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 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 particular, licenses were issued for interim spent fuel storage in an ISFSI at Surry Power Station (Virginia j Electric and Power Co.), H.B. Robinson Unit 2 (Carolina Power and Light Co.), Oconee Nuclear Station (Duke Power Co.), Fort St.

Vrain Nuclear Generating Station (Public Service Co. of 1

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6 Colorado), and Calvert Cliffs Nuclear Power Plant (Baltimore Gas and Electric Co.). On the basis of this experience, tl. .

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

Because tae current practice creates an additional, unnecessary layer of agency review, the CommisLion believes it can 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 regulaticns (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 thht would otherwise be expended for unnecessary agency reviews.

As with 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, NMS3 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

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7 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 I

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 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 2.105, 72.46(a)). Among other tnings, the notice indicates that any person whose interest may be affected may file a request for .

a hearing or a petitio Ivr 'e to intervene. Potentially affected persons and < ** ec 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 held before an Atomic Safety and Licensing Board, issuance of a specific license for an ISFSI by NRC must await completion of the

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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 Beard'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)).

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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9 Because these proposed amendments 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 Register, 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 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  !

protection of the public and occupational workers from radiation and radioactive materials, analyses of potential accidents that might occur at the facility, and the applicant's plans for the conduct of ISFSI operations. In its review, the NRC staff may l require further submittals frcn the applicant as necessary.to l l

complete the ISFSI applicati9n, will thoroughly review all of the ,

I applicant's supporting technical information, and will independently verify the applicant's safety analyses and design .!

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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 i

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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 proposed amendment.

Under the proposed amendments, the Commission's express authorization would continue to be required before issuance by the Director, NMSS, of any initial license for the acquisition, receipt or possession of spent fuel, high-level waste and associated radioactive material, for the purpose of storage at a monitored retrievable storage installation (MRS).

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 i retrievable storage installation (MRS) under 10 CFR Part 72. The 2

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i 11 I amendment would therefore eliminate the requirement of express 1 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 l

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 l

following satisfactory completion of NRC's environmental assessment and public health and safety review, without obtaining l

additional, express authorization from the Commission to do so. l 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.

l Under other provisions of the Commission's rules pertaining to the opportunity for public hearing that would not be changed, 1

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

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12 (including any direction for issuance of any ISFSI license) pending that review (10 CFR 2.786, 2.788). If the Commission granted a stay, then the Director would not issue the license until the terms of the stay, if any, were met or until further order of the Commission.

B. Licensina Reauirements for ISFSIs (10 CFR 72.46).

The proposed amendment of 10 CFR 72.46(d) would delete the reference to "an ISFSI" in the last sentence of paragraph (d).

As amended, the sentence would continue to apply to licensing of the MRS. Thus, under the amendment, the Director, HMSS, would have delegated authority to issue a specific license for interim storage of spent fuel in an ISFSI. He/she 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.

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Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c) (1) r

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. i 13 and (3). Therefore, neither an environmental impact statement i nor an environmental assessment has been prepared for this -

proposed rule. ,

Paperwork Reduction Act Statement l 4

This proposed rule does not contain a new or amended information collection requirement subject to the requirements of l

the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Existing requirements were approved by the Office of Management i

and Budget, approval numbers 3150-0136 and 0132. I r

Regulatory Analysis  :

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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 j 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 j before issuing a license to construct and operate an ISFSI. The amendments, if adopted, would authorize the Director to issue a- -

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14 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 be significant 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 of 1980, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities.

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Backfit Analysis l

l 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 '

is not required because these amendments, if adopted, would not involve any provisions which would impose backfits as defined in  ;

10 CFR 72.62(a) (see also 10 CFR 50.109).

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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. 553,

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

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PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS I

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1. The authority citation for Part 2 is revised to read as follows: 1 AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended I (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 (42 U.S.C. 10134 (f) ) ;

l 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, i

2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, i

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,

k 17 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), (i) , (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 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 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 (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.).

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

S 2.764 Immediate effectiveness of initial decision directina issuance or amendment of construction Dermit or operatina license.

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18 (a) Except as provided in paragraphs (c) through (f) of this 1

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) rough (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 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 l

initial decision, within ten (10) days from the date of issuance of the decision.

19 (c) An initial decision directing the issuance of an initial license for the construction and operation of a monitored retrievable storage installation (MRS) under 10 CFR Part 72 shall i

become effective only upon order of the Commission. The Director l 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 SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

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 (42 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 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, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (43 U.S.C. 10151, 10152, 20153, 10155, 10157, 10161, 10168).

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

(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 i

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 (42 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

o 21 l 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 initial license for the construction and operation of an MRS until expressly authorized to do so by the Commission. i l

l Dated at Rockville, Maryland, this day of ,

l 1993. {

For the Nuclear Regulatory Commission.

Samuel J. Chilk, Secretary of the Commission.

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ENCLOSURE 2 1

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. r Identical letter to: >

Philip R. Sharp ,

cc: Michael Bilirakis  !

Joseph J. Lieberman cc: Alan K. Simpson i

l The Honorable Richard H. Lehman, Chairman i Subcommittee on Energy and Mineral Resources  :

Committee on Natural Resources United States House of Representatives -

Washington, DC 20515 -

Dear Mr. Cnairman:

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

proposed rule would amend the NRC's regulations in 10 CFR Parts 2 i 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 is.3ue 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, i

Dennis K. Rathbun, Director- i Office of Congressional Affairs '

Enclosure:

Federal Register Notice

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cc: Representative Barbara Vucanovich j J

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I ENCLOSURE 3  ;

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w f NRC PROPOOES TO AMEND REGULATION GOVERNING LICENSING OF INDEPENDENT SPENT FUEL STORAGE INSTALLATION 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. I The provision was added in 1980 during the Commission's 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 i

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 1

the use of independent spent fuel storage installations, all i specifically authorized by the commission--for the surry nuclear power plant in Virginia, the H.B. Robinson nuclear power plant in j South Carolina, the Oconee nuclear power plant in South Carolina, the Ft. St. Vrain nuclear power plant in Colorado (now being decommissioned) and the Calvert Cliffs nuclear power plant in Maryland.

l 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

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prepara 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 i presiding Atomic Safety and Licensing Board. In addition, 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 licenst 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.

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7,dxlmJssis~.sl pts N0TATI0N V 0 T E F h'o*N'P(

RE_SPONSE SHEET

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4E64-/

TO:

SAMUEL J. CHILK, SECRETARY OF THE COMMISSIONPb4 FROM: THE CHAIRMAN

SUBJECT:

SECY-93-112 - PROPOSED RULEMAKING TO ELIMINATE REQUIREMENT OF PRIOR COMMISSION APPROVAL FOR A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72 l

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APPROVED V DISAPPROVED ABSTAIN Nor PARTICIPATING REQUEST DISCUSSION COMMENTS: i 1

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,PblL T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: COMMISSIONER ROGERS SECY-93-112 - PROPOSED RULEMAKING TO  !

SUBJECT:

ELIMINATE REQUIREMENT OF PRIOR COMMISSION APPROVAL FOR A SPECIFIC LICENSE FOR AN ISFSI  !

UNDER 10 CFR PART 72 l l

APPROVED M' 50 0 DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION l

COMMENTS: %g, l

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/ d/L j T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION l t

FROM: COMMISSIONER DE PLANQUE  :

SUBJECT:

SECY-93-112 - PROPOSED RULEMAKING TO '

ELIMINATE REQUIREMENT OF PRIOR COMMISSION APPR0'/AL FOR A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72  :

i APPROVED xx DISAPPROVED ABSTAIN

, NoT PARTICIPATING REQUEST DISCUSSION COMMENTS:

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<?hsA L O mn SIGNATURE RELEASE VOTE /xx / May 12, 1993 DATE WITHHOLD VOTE / /

ENTERED ON "AS" YES xx NO

% {u% lmc {sc i /.sc, L g /3 N0TATI0N V0TE ([ caf//7qff RESE NSE. SHEET FJo-w/% RJG,68 4G/yJ PbL SAMUEL J. CHILK, SECRETARY OF THE COi4f4ISSION T0:

FROM: COMMISSIONER CURTISS

SUBJECT:

SECY-93-112 - PROPOSED RULEMAKING TO ELIMINATE REQUIREMENT OF PRIOR COMMISSION APPROVAL FOR A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72 APPROVED DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:

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F' SIGNATURE RELEASE VOTE /X / f-f3-93 l

. DATE i WITHHOLD VOTE / / l ENTERED ON "AS" YES x No

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designed and constructed for interin spent fuel storage, after use of the nuclear fuel as a source of energy in a nuclear power reactor, until its shipmen't to the U.S. Department of Energy's planned geologic repository for disposal of radioactive vaste.  :

I 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. This rulemaking proposes a change to the -

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

Discussion 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 10 CFR Part 72, after the NRC completes a comprehensive, documented, public health and safety review; prepares an 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 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 ISPSI license, after the NRC review and determination that a license should be issued c

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NUCLEAR REGULATORY COMMISSION 3

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i W ASH INGT ON . D.C. 20555

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• May 24, 1993 OFFICE OF THE SECRETARY f MEMORANDUM FOR: William C. Parler General Counsel ,

e FROM: Samuel J. Chilk, Secret 6 l

SUBJECT:

SECY-93-112 - PROPOSED RULEMAKING g TO ELIMINATE REQUIREMENTS bF PRIOR COMMISSION APPROVAL FOR A SPECIFIC LICENSE FOR AN ISFSI UNDER 10 CFR PART 72 The Commission (with all Commissioners agreeing) has approved puclication of the Notice of Proposed Rulemaking with the f:11owing edit:

On page 3, line 7 of the notice, the word " improve" should be deleted.

The Notice of Proposed Rulemaking should be forwarded to the p Secretary for signature and publication in the Federal Recrister.d ,

(OGC) (SECY Suspense: 6/18/93) cc: The Chairman Commissioner Rogers -

Commissioner Curtiss Commissioner Remick Commissioner de Planque J EDO OIG Office Directors, Regions, ACRS, ACNW (via E-Mail)

ASLBP (via FAX) l l

SICY NOTE: THIS SRM, SECY-93-112, AND THE VOTE SHEETS OF ALL COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 10 )

WORKING DAYS FROM THE DAT3 OF THIS SRM j i

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[7590-01) l i

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 72 RIN: 31S0-AE64 1 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; j Site-specific License to a Qualified Applicant  ;

I l l AGENCY: Nuclear Regulatory Commission.

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ACTION: Proposed rule. i l

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SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to l

\

amend its procedures under which the Director of Nuclear j Materials Safety and Safeguards can issue a site-specific license to a qualified applicant for the interim storage of spent fuel in l 1

an independent spent fuel storage installation (ISFSI) following 1

l satisfactory completion of NRC safety and environmental reviews and after any public hearing on the application. The proposed I amendment is administrative in nature and would eliminate the l 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 l l

provided for in the NRC's rules of practice.

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DATE: The comment period expires (seventy-five days after publication in the Federal Register). Comments received after j this date will be considered if it is practical to do so, but the l

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Commission is able to ensure consideration only for co==ents received on or before this date. ,

I ADDRESS: Submit cotanents to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. ATTN: Docketing and Services Branch. l Hand deliver comments to: 11555 Rockville Pike, Rockville,  :

i Maryland between 7:45 am and 4:15 pm Federal workdays. i 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.

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i SUPPLEMENTARY INFORMATION:

Background .

Under 10 CFR Part 72, the NRC will issue a specific license I 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 i

6 L

3 designed and constructed for interim spent fuel storage, after 1 use of the nuclear fuel as a source of energy in a nuclear power 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 years with renewal at the option of the NRC) of spent fuel in an ISFSI. This rulemaking proposes a change to the Commission's procedures for the issuance of a specific ISFSI license to a qualified applicant.

Discussion 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 10 CFR Part 72, after the NRC completes a comprehensive, docu:ented, public health and safety review; prepares an 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 any requested hearing is complete. The amendment would end the current internal practice under which the Director obtained the I

Commission's express authorization for each ISFSI license, after l l

the NRC review and determination that a license should be issued 1

1

b 4

under 10 CFR Part 72, but before the Director actually issued the license. The proposed rule would not affect, in any way, existing procedures for the NRC review or the opportunity for i public hearing.

f 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 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." (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 licenses upon favorable completion of NRC reviews, as well as the completion of any public hearing on the license application. j Under the Energy Reorganization Act of 1974 (42 U.S.C. 5801, 5845), the Director's functions are delegated by the Commission i

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.

The special exception was added to the Commission's rules in 1980. See " Licensing Requirements for the Storage of Spent Fuel in an Independent Fuel Sp'ent Storage Installation," 45 FR 74693;

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November 12, 1960. At that time, it was understood that an i option under consideration by the Departnent 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 this ,

type of DOE facility, the Commission directed that any license should not be effective until Commission review was complete.

However, following enactment of the Nuclear Waste Policy Act of 1982, which made utilities primarily responsible for providing 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 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 t

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

Vrain Nuclear Generating Station (Public Service Co. of h

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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.

Because the current practice creates an additional, unnecessary layer of agency review, the Commission believes it can 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 l Commission regulations (10 CFR Part 170) and the Independent Offices Appropriations Act of 1952 (31 U.S.C. 483a) to pay  ;

I 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. i As with 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  ;

I 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 i the Commission for resolution. These internal mechanisms, which the Commission is not proposing to change, ensure that every i

1 7

specific license for interi= spent fuel storage in an ISFSI is issued under the supervision and direction of the Commission. In j addition, as discussed below, if the application for a specific l

ISFSI license is the subject of a public hearing, parties to the  !

I licensing proceeding will continue to have the opportunity to  !

request Commission review of their concerns before any license is i l

issued by the Director, j l

The proposed revision concerns only internal agency l l

procedures. The Commission's existing opportunity for public j 1

hearing, as described below, would continue for specific ISFSI '

i licenses. Under the Commission's rules of practice, after l 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 l

Register 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 l

1 of the license applicant. They may request a hearing or provide i 1

written comments before any final NRC action on an ISFSI license l application (10 CFR 2.105). If a hearing on the application is l

held before an Atomic Safety and Licensing Board, issuance of a l

i specific license for an ISFSI by NRC must await completion of the I

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8 hearing and the initial decision by the Board, and must be l 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 i

request, under the general rule which the Commission is now l proposing to restore, 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 -

I additional, express Commission authorization to do so (See 10 CFR  :

2.764(a) and (b)).

This opportunity for public hearing, including the opportunity to request commission review before issuance of a -

t 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.

a - . _ _

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Because these proposed amendments 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 Register, 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 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 protection of the public and occupational workers from radiation and radioactive materials, analyses of potential accidents that might occur at the facility, and the applicant's plans for the ,

conduct of ISFSI operations. In its review, the NRC staff may require further submittals from the applicant as nccessary 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

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 proposed amendment.

Under the proposed amendments, the Commission's express authorization would continue to be required before issuance by the Director, NMSS, of any initial license for the acquisition, receipt or possession of spent fuel, high-level waste and associated radioactive material, for the purpose of storage at a ,

1 monitored retrievable storage installation (MRS). ]

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i Section-by-Section Analysis l 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).t* 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 l

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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

(

i 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 r

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 l installation (ISFSI)" to thereby cover any application for a ,

specific ISFSI license that is the subject of a public hearing. l i

Under other provisions of the Commission's rules pertaining '

l to the opportunity for public hearing that woald 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  !

i

12 (including any direction for issuance of any ISFSI license) pending that review (10 CFR 2.786, 2.788). If the Commission granted a stay, then the Director would not issue the license '

until the terms of the stay, if any, were met or until further order of the Commission.

B. Licensina Recuirements for ISFSIs (10 CFR 72.46).

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

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

As amended, the sentence would continue to apply to licensing of the 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/she 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 i

informed and will address any significant questions of policy relating to a specific license for interim storage of spent fuel in an ISFSI.

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1 Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type j l

of action described in categorical exclusion 10 CFR 51.22 (c) (1)

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i 13 and (3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this  !

proposed rule.

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 l 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 j before issuing a license to construct and operate an ISFSI. The amendments, if adopted, would authorize the Director to issue a l

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14 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 be significant 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 i

the regulatory analysis for this proposed rule. l 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 of 1980, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities.

15 Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 72.62, does not apply to this proposed rule and that a backfit analysis is not required because these amendments, if adopted, would not i involve any provisions which would impose backfits as defined in 10 CFR 72.62(a) (see also 10 CFR 50.109).

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, P

Special nuclear material, Waste treatment and disposal.

10 CFR Part 72 - Manpower training programs, Nuclear materials, occupational safety and health, Reporting and ,

t 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. 553,

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

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS

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.

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 i

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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17 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 )

l U.S.C. 2201(b), (i) , (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 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, l

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 (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.).

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

S 2.764 Immediate effectiveness of initial decision directina issuance or amendment of construction permit or operatina license.

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(a) Except as provided in paragraphs (c) through (f) of this I section, or as otherwise ordered by the Commission in special circumstances, an initial decision directing the issuance or l 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 r

(ISFSI) shall be effective immediately upon issuance unless the 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 upon petition for review filed by any party pursuant to S 2.786  ;

or upon its own motion. j (b) Except as provided in paragraphs (c) through (f) of this l section, or as otherwise ordered by the Commission in special l circumstances, the Director of Nuclear Reactor Regulation or '

i 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 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, authcrized by an initial decision, within ten (10) days from the date of issuance (

of the decision.

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- 1 e i 19 (c) An initial decision directing the issuance of an initial 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 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 i SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

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3. The authority citation for Part 72 continues to read as l 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 (42 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 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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l e l 20 2951 (42 U.S.C. 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 i U.S.C. 4332); Secs. 131, 132, 133, 135, 137, 141, Pub. L.97-425, 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), j (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 (42 U.S.C. 10198).

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

S 72.46 Public hearinas.  ;

(d) If no request for a hearing or' petition for leave to l intervene is filed within the time prescribed in the notice of ,

I

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21 1 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 l promptly inform the appropriate State and local officials and publish a notice in the Federal Reaister of the action taken. In 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 7/7 [hday of May i

1993.

ar Regulatory Commission.

FoytheNuc f e L" '

famuel J. Chi k',

Secretary of he Commission. ]

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2,72. [jg TOMS & WASTE bdYb 3N7k / l 310 DOMER ST #1

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• G01) 589-5892

• FAX 270-0804 . .

l iNsc" l July 24,1993

'93 JUL 27 oe :07  ;

Samuel Chilk, Secretary to the Commission .

US Nuclear Regulatory Commission .

Washington DC 20555 j Attn: Docketing and Licensing Branch

Dear Mr. Chilk:

i 4

On July 5, the NRC annoimced a proposed rulemaking that would delimit the }

agency's control over at-reactor projects for dry storage of spent fuel, reducing l potential public oversight from formal licensing proceedings at the Commission  :

level to a mere staff review under the authority of the Director of NMSS (58 FR  !

31478 ff.). This momentous decision would be accomplished by deleting the i reference to "an ISFSI"in the last sentence of paragraph (d) of 10 CFR 72.46. The  :

agency has determined that the decision will have no significant environmental  !

impact. [

I

1. Crowing Public Opposition }

This position to the contrary, a growing public community has come to see . l reactor spent fuel storage as one of the greatest threats anywhere on'the nation's j environmental horizon. Already hundreds of state officials and citizen j intervenors have been angered by the NRC's steadfast refusal to open its doors to i public participation on this supremely important issue. Two years ago, over 60  ;

Michigan citizens were refused in their request for public hearings on the q Palisades ISFSI. Since then, the level of public opposition to this project has been j

steadily climbing. For three years, Minnesota state officials and a broad spectrum of community organizations have exercised unceasing opposition to  !

the Prairie Island ISFSI in the courts, the state agencies, and the legislature. l Most recently, in a June 5 letter occasioned by petitions from over 100 neighbors  ;

of the Calvert Cliffs plant, Clarence W. Blount, chairman of the Economics and i Environmental Affairs Committee of the Maryland Senate, echoed long-standing l requests for hearings on the Calvert Cliffs ISFSI. In a few more months, the t Maryland Safe Energy Coalition petition for hearings on this ISFSI will be a year  !

old with no NRC response in sight. It is now unclear to us whether this proposed l rulemaking would apply retroactively to our petition.

Elsewhere across the nation, high levels of public concern over reactor spent fuel issues continue unabated. Noteworthy examples include the oncoming fuel  ;

shipments from Shoreham and. Brookhaven on Long Island, the residual fuel .l contents in the Three Mile Island Unit 2 pressure vessel, the unrelieved capacity _

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problems in the Millstone spent fuel pool in Connecticut, and the lack of a spent fuel management program in the expedited Yankee Rowe decommissioning in Massachusetts. ,

i During this recent startup period for ISFSI projects, the nuclear industry has been l the beneficiary of the NRC's refusal to allow an adversary process for public .

inquiry into the licensability of these facilities. The agency's decision to  !

permanently prohibit any such inquiry on into the future has the inevitable j appearance of a declaration of an open seasors for ISFSI projects. This wholesale j exemption will strike many observers as an extraordinary abrogation of the ,

NRC's responsibility to the public that can only be compared to its ill-fated and now withdrawn attempt at a Below Regulatory Concern policy. ,

We might note that, beginning with the 88 NUHOMS modules planned and half constructed at Oconee, the 120 modules planned and half constructed at Calvert  ;

Cliffs, the presently operating modular vault system at Fort St. Vrain, and so on  ;

across almost two dozen actual and proposed ISFSI sites, the industry has taken on the responsibility of managing in dry storage a quantity of spent fuel that is at least the equivalent of the 1000-odd containers that might be expected at an away-from-reactor Monitored Retrievable Storage facility. In sharp contrast to the NRC's present decision on ISFSIs, however, the Nuclear Waste Policy Act of '

1987 mandated two acts of Congress as a requirement for an MRS license.

Somehow it would appear that the NRC's perceptions of the inherent hazards and regulatory responsibilities in spent fuel storage operations are seriously at odds with those of Congress.

i

2. Technical Issues Policy questions aside, there is also a growing agenda of technical problems at  ;

presently operating ISFSIs. NRC documents have given evidence that various of the casks at the Surry ISFSI are already operating beyond their designed thermal, I radiation, and pressure limits after only a few years of pilot testing. Palisades 'j opponents have pointed to the 4 F thermal safety margin in the VSC-24 cask ,

design. In the case of the NUHOMS system which has been chosen by the operators of five nuclear plants, Frederick Sturtz, chief of the NRC's Irradiated Fuels Section, said in a letter to Pacific Nuclear last December 15 that "little if any significant safety margin remains" in this design as a result of non-conservative thermal calculations.

Indeed, there is a growing insistence among the NRC's own experts that the present state of spent fuel science amounts to hardly more than Day One of a long and dangerous voyage into the unknown. Most recently, a masterful 72-page review of the present state of the science, prepared for the Commission by the Center for Nuclear Waste Regulatory Analyses in San Antonio, represents an important breakthrough in official candor.

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This study, Characteristics of Spent Nuclear Fuel and Cladding Relevant to High-Level Waste Source Term (CNWRA 93-0006, May 1993) raises dozens of disturbing problems in the areas of spent fuel chemistry, physics, radiology, and j engineering. Not the least of the authors' concerns is the likelihood that dry l storage will represent a serious negative contribution to the long-term goals of i spent fuel management:

l The dry em ironment has the potential of producing such problems as funher fuel cladding oxidation, increased cladding stresses and creep deformation as a result of rod internal pressure, and volume expansion of fuel due to air permeating through any pinholes and incipient cracks in the cladding. These possible spent fuel and cladding alteration modes could be quite accelerated under dry storage conditions, since the temperatures are much higher than in wet storage. (p. 4-H)

The study estimates that 5,000 fuel rods will have become breached at the time of  ;

dry storage and concludes that interactive pellet / cladding / container corrosion is l

" inadequately addressed in current source-term models."

)

To cite only one other problem raised by these authors, we are aware of the j ongoing trend towards the use of higher-enriched, higher-burnup fuels which l will continue for another decade in the case of Presurized Water Reactors, according to DOE data. In one graph (Figure 4-3), the San Antonio study l presents alarming evidence that cesium-134 and europium-134 cctivi? M ael l rod cladding increases by a power of 2 as a function of fuel burnup. In other words, far from getting our spent fuel problems under control, federal and state regulators a decade from now will be coping with exponential crowth rates in i spent fuel problems all the way down the line to an ultimate repository as a l result of ongoing trends in industry operations. Potential public-sector costs  !

deriving from these trends are ominous. l

3. Conclusion I conclude that the NRC's proposed licensing exemption for reactor spent fuel storage projects is most unfortunate and untimely, and I urge you to rescind this action. It's hard to imagine an agency decision in recent years that is going to have a greater environmental impact. I'm confident that this position is shared by many state officials and public-interest organizations.

Yours sincerely, YhW Kemp Houck  ;

Editor copies to: Sen. Paul Wellstone Sen. Paul Sarbanes ,

Rep. Howard Wolpe J Dennis Dums, Wisconsin CUB Counsel l

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4 i

t John Glynn, Maryland People's Counsel George Crocker, Prairie Island Coalition Against Nuclear Storage ,

Willie Hardacker, Blue Dog Law Office Richard Ochs, Maryland Coalition for Safe Energy  !

Eric Epstein, TMI Alert Mary Sinclair, Palisades Watch Gail Steinbring, Massachusetts Citizen Action Network Bob Fulkerson, Nevada Citizen Alert '

Jim Riccio, Public Citizen  :

Kerry Cooke,20/20 Vision Beatrice Brailsford, Snake River Alliance P

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AE')f/ -1 s Commonwaalth Edison

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\d%jf. Downers Grove. filinois 60515 (firF rt 3 l'/ 7P) ]

August 9,1993

'93 P.' 13 A10 :14 Mr. Samuel J. Chilk. Secretary U. S. Nuclear Regulatory Commission Washington D. C. 20555 -

Attention: Docketing and Services Branch

Subject:

Proposed Rulemaking to 10 C. F. R. Parts 2 and 72 to Eliminate the Requirement for Express Commission Authorization Before issuing a License for an Independent Spent Fuel Storage Installation (ISFSI),58 Fed. Reg. 31478 (June 3,1993)

Commonwealth Edison Company supports the proposed amendments to 10 C. F. R.

parts 2 and 72 which allow the Director of Nuclear Materials Safety and Safeguards to issue a site-specific license to a qualified applicant for the interim storage of spent fuel in an ISFSI without express authorization from the NRC Commissioners. After the amendments, the applicant for such a license remains subject to a comprehensive public health and safety review, environmental assessment, and an opportunity for public hearing. The NRC, therefore, completes a detailed review to ensure that the proposed installation is safe and in compliance with NRC regulations. The current practice of requiring NRC Commissioner approval creates an unnecessary layer of agency review and expenditure of licensee funds.

In summary, CECO believes that this revision is a useful simplification of existing procedures that does not create any impacts adverse to safety.

Sincerely, M

William F. Naughton, irector Strategic Licensing Policies & Issues h:wpdsts:rulecoml:1

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• AUG 1% 1993 73 ~ 16 J 53 Secretary U.S. Nuclear Regulatory Commission Attention: Chief, Docketing and Services Branch Washington, DC 20555

Dear Sir:

The U.S. Department of Energy (DOE) is responding to the U.S.

Nuclear Regulatory Commission's proposed rule on " Interim Storage ,

of Spent Fuel in an Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Applicant," published for ,

public commenc on June 3, 1993, (58 FR 31478) with the comment l

below.

In the SUPPLEMENTARY INFORMATION under Discussion, the third i paragraph contains the following statement: l l

"However, following enactment of the Nuclear Waste 'l Policy Act of 1982, which made utilities primarily i responsible for providing their own interim spent fuel I 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 exemption, 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 j spent fuel storage option subsequently change."  !

As written, this section implies that DOE has not and is not pursuing a Monitored Retrievable Storage Facility (MRS) as a near-tem interim storage option. With the enactment of the '

Nuclear Waste Policy Act of 1982, the Nation's policy became to dispose of Spent nuclear fuel in geologic repositories and DOE was authorized to develop the first such repository. Large-scale storage facilities were not authorized by that law. DOE, however, recommended that an MRS be authorized in a mandated site-specific proposal to Congress. Subsequently, in the Nuclear Waste Policy Amendments Act of 1987, an MRS was authorized subject to specific conditions. DOE plans have continued to include an MRS for interim storage, and DOE has been working with the Office of the Nuclear Waste Negotiator to seek a state or Indian Tribe to host such a facility. We are requesting that the discussion be revised to accurately reflect the DOE position.

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• 1 2 i If you have any questions, please call Priscilla Bunten at I (202) 586-8365. i l

Sincerely,  ;

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Dwight n. Shelor Associate Director for Systems and Compliance Office of Civilian Radioactive  :

Waste Management i cc:

C. Haughney, NRC l I

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August 16, 1993 l Samuel Chilk, Secretary to the Commission l

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Licensing Branch

Dear Secretary Chilk:

Re: Interim Storage of Spent Fuel in an Independent )

Spent Fuel Storage Installation; Site Specific License to a Qualified Applicant l

The Commission's two major arguments in support of its j proposal to eliminate the need for Commission authorization for I each ISFSI license fail badly in being persuasive, since the  ;

l subject of the Commission's attention in this proposed amendment to {

its rules is nothing less than what Ivan Selin has categorized as j the " sword of Damocles" - nuclear waste.

l The Commission proposes to eliminate Commission authorization for ISFSI licenses because "the current practice creates an additional, unnecessary layer of agency review." This may be the  ;

l view of the nuclear industry and compliant bureaucrats, but it is clearly not the view of the public that is being forced to directly l concern itself with the safety, health, environmental and ethical I i

issues which exist because of the inability of a monopolistic industry and government to solve the radioactive waste management l l

problem.

l The public of the midwest calls for more. Commission oversight

! of the siting of radioactive waste storage facilities - not less.

l What price public confidence in the Commission? The Commission's attempt to abrogate its position as final decision maker on where radioactive waste should be stored smacks of its further retreat under the pressure of monopolistic dynasties threatened by competition from energy producers that generate low cost  !

~ .

electricity without creating radioactive wastes.

Point Beach, Prairie Island, and Palisades have each reached the third wall of spent fuel storage capacity. Having run out of room in their spent fuel pools after racking and re-racking and having run out of promises that the federal government will soon begin carting the waste of a million legacies away for disposal, the managers of these plants have been forced, they say, by economics, to lacrease on-site storage of spent fuel wastes by using dry storage technology.

Despite the availability of a new technology to handle an old problem, the nuclear industry is desperate for ways to subdue the increasing restlessness of rating agencies that struggle daily with gauging the level of regulatory oversight of nuclear waste management. The "mid-life crisis" being experienced by nuclear managers searching for ever creative ways to insure the profitability of shareholders investments in aging nuclear plants has led the nuclear industry to call upon the Commission to relax regulatory oversight of ever growing quantities of high level e

radioactive wastes at the sites of reactors. The Commission's current proposal was well scripted by the nuclear industry.

For the public in the midwest which has witnessed the Prairie Island site threatened by flood, the Palisades plant inoperable due to disintegrated and brittle fuel rods, and the Point Beach plant first. in the midwest and second in the nation in the number of NRC fines in 1992, the Commission's claim that an additional layer of review is unnecessary is whole heartedly rejected. The storage of high level radioactive waste on the shores of the Mississippi River and Lake Michigan requires the greatest vigilance by the public and ,

the government.

The Commission's second argument for dispensing with Commission authorization of ISFSI licenses is not based on safety or public health concerns, but rather is based on the Commission's concern for the financial well being of the ISFSI license applicant. This argument is rejected by the public for that reason alone. The NRC's responsibility is the protection of the public and

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, I.

the environment from the effects of nuclear power. It is not the NRC's responsibility to weaken rules which regulate the industry so that competition is deterred.

Furthermore, the licensing fees that the nuclear industry I

would save by the adoption of this proposal won't go very far towards saving the industry from escalating O&M costs associated with a degrading fleet of reactors. Brittle reactor vessels, degraded steam generators, and cracks in control rod drive  ;

mechanisms require substantial investments in labor, equipment and hopefully, NRC inspections and regulatory oversight.

The Commission should not amend its rules as proposed. It should, however, amend its attitude regarding oversight of nuclear waste issues. The Commission should increase its oversight of l where radioactive wastes are stored, rather than attempt to avoid making the final decision about whether high level radioactive  !

, waste should be stored on the edge of the Great Lakes and waterways of the nation, j The Commission's proposal to reduce, rather than bolster, its  !

level of oversight following the May 28, 1993 decision by Minnesota Judge Roland Amundson that the Prairie Island ISFSI "is properly ,

classified as one in which waste is permanently stored,"

3 strengthens the resolve of the public to review the proposals of the Commission and of the nuclear industry. Attempts to reduce bureaucratic oversight result in increased public oversight. What is at stake here is of too great of importance for the Commission to acquiesce to the nuclear industry's demands.

4 Sincerely, I

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Dennis ums desearch Director d

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6(Mh. inn man '!)J- l993 i

August 16,1993 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555  ;

Attention: Docketing and Service Branch Re: Edison Electric Institute / Utility Nuclear Waste and Transportation Program Comments on Proposed Rule" Interim Storage of Spent Fuel in an Independent Spent Fuel Storage  ;

installation; Site-Specific Ucense to a Qualified Applicant," 58 i Fed. Rea. 31.478 (June 3.1993) -l

Dear Mr. Chilk:

l The Edison Electric Institute (EEI) and its Utility Nuclear Waste and Transportation Program (eel /UWASTE) are pleased to submit comments on the Nuclear Regulatory Commission's (NRC) proposed rule entitled " Interim Storage of Spent Fuel in an independent Spent Fuel Storage Installation; Site-Specific Ucense to a Qualified Applicant." ..

n EElis the association of the nation's investor-owned utilities. Its members ' generate approximately 78% of the nation's electricity. eel /UWASTE is a separately funded - 1 activity within eel and represents the vast majority of electric utilities with nuclear ,

energy programs. eel /UWASTE takes actions necessary to ensure that safe,  ;

environmentally sound, publicly acceptable, cost effective radioactive waste -

management and disposal, and _ nuclear materials _ transportation systems are l maintained and developed in a timely manner.  :

i i

i

1 Mr. Samuel J. Chi!k August 16,1993 Page 2 ,

I l

eel /UWASTE strongly supports the proposed rule. Given the proven safety and ,

reliability of ISFSis, it is appropriate that NRC licensing procedures be no more  ;

rigorous than those employed for other types of materials licenses. Moreover, i deletion of unnecessary licensing procedures for ISFSis located at commercial .

power reactors is in keeping with the NRC's initiative to reduce unnecessary '

regulatory burden on licensees resulting without in any way reducing the protection for public health and safety and common defense and security. )

l If you have any questions concerning our comments, please do not hesitate to l contact us. l Sincerely, MP Steveh P. Kraft ~[!!

7 Director, Nuclear Waste and Transportation SPK/ctf Enclosure i

i 1

Edison Electric Institute Utility Nuclear Waste and Transportation Program Comments on Proposed Rule

" Interim Storage of Spent Fuel in an independent Spent Fuel l Storage Installation; Site-Specific License to a l Qualified Applicant" l 58 Fed. Reg. 31,478 (June 3,1993) l l

Provided below are the comments of the Edison Electric Institute (EEI) and its Utility Nuclear Waste and Transportation Program (eel /UWASTE) on the Nuclear Regulatory Commission's (NRC) proposed rule entitled " Interim Storage of Spent Fuel in an indepen-dent Spent Fuel Storage Installation; Site-Specific Ucense to a Qualified Applicant."

eel is the association of the nation's investor-owned utilities. Its members generate approximately 78% of the nation's electricity. eel /UWASTE is a separately funded activity within eel and represents the vast majority of electric utilities with nuclear energy l programs. eel /UWASTE takes actions necessary to ensure that safe, environmentally

! sound, publicly acceptable, cost effective radioactive waste management and disposal, and nuclear materials transportation systems are maintained and developed in a timely manner. ,

1. Comments on the Proposed Rule l eel /UWASTE strongly supports the proposed rule.

The proposed rule would eliminate mandatory full Commission review and express Commission authorization required by 10 CFR SS 2.764(c) and 72.46(d) (1993) prior to granting a site-specific independent spent fuel storage installation (ISFSI) license. Given the detailed analysis conducted by the NRC staff in licensing the ISFSis, we agree that mandatory Commission review of site-specific ISFSI licenses is an unnecessary 1 procedural step.

Adoption of the proposed rule will eliminate the costs associated with mandatory Commission review and reduce delay in granting ISFSI licenses, which are currently anticipated to utilize dry storage technologies. This proposed rule is consistent with con-gressionalintent expressed in sections 131(a)(2) of the Nuclear Waste Policy Act (NWPA), ,

in which Congress made formal findings that "the Federal Government has the ]

responsibility to encourage and expedite . . . the addition of needed new storage capacity I at the site of each civilian nuclear power reactor."' The proposed rule also supports the 1

Nuclear Waste Policy Act of 1982 6131(a)(2),42 U.S.C. 610151(a)(2) (1988). j

._ _ _ _ __ _ - = _ _ _ .__ _ _ _ _ _

j purpose of NWPA S 133, which is to " assist and encourage the development . . . of l alternate interim spent fuel storage technologies at each reactor site? Such technologies l were defined specifically to include dry spent fuel storage techniques.3 .

l i

Dry storage technologies have been proven safe by extensive research and experience in storing spent nuclear fuel. The Idaho Nuclear Engineering Laboratories began extensive testing of such technologies in 1964 and have since 1971 safely stored spent fuel using a variety of dry storage technologies.' Similar extensive testing and experience in other countries reinforces the U.S. conclusion that dry storage technologies are extremely safe and reliable? Growing experience with safe storage of spent fuel at ISFSis on the site of five commercial power reactors further supports that conclusion.6 Extensive testing and study of dry storage technologies demonstrates they are extremely safe and benign, and due to the simplicity of their passive design and operation, they can be expected to function with an extremely low probability of incident The proposed rule retains site-specific licensing for ISFSis not located on the site of licensed reactors, or not making use of generally licensed dry storage casks, with the full panoply of public participation--notice, hearings, and participation in licensing procedures as intervenors. The only effect of the proposed rule is to eliminate the mandatory full Commission review of uncontested licensing actions.

As the Notice of Proposed Rulemaking indicates, the NRC's rules of practice in 10 CFR Part 2 still provide for full prelicensing public participation and right to request review of the Atomic Safety and Licensing Board's initial decision by the full Commission.

i e

i 2

H.R. Rep. No. 785,97th Cong., 2d Sess., pt.1, at 41 (1982). ,

3 Id2 at 81-82.

l U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory Research, l NUREG-1092. Environmental Assessment for 10 CFR Part 72. *Licensina a Reauirements for the Indeoendent Storace of Soent Fuel and Hiah-Level .

j Radioactive Waste 11-3 (1984).

5 U.S. Department of Energy, Office of Civilian Radioactive Waste Management, DOE /RW-0220. Final Version Dry Cask Storaae Study 1-72 to I-75 (1989).

6 See List of Approved Spent Fuel Storage Casks, Additions, Final Rule,58 Fed.

Reg.17,948,17,949 (1993). j 7

Congress of the United States, Office of Technology Assessment, Manaaina the Nation's Commercial Hiah Level Radioactive Waste 59 (1985).

i

1 Ill. Conclusion The proposed rule supports the NRC's objective of eliminating unnecessary procedural rules which do not contribute to increased safety or efficiency.a eel /UWASTE urges the  :

NRC to adopt the proposed rule eliminating mandatory Commission review of ISFSI ,

~

licenses for interim storage of spent fuel.

i 9

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See Reducing the Regulatory Burden on Nuclear Ucensees Final Rule,57 Fed.

Reg. 39,353 (1993) and Elimination of Requirements Marginal to Safety, Solicitation of Public Comments,57 Fed. Reg. 4,166 (1993).

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nugust 17,1993 .'

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Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Services Branch Ref: 10CFR Parts 2 and 72 Proposed Rule (Fed. Reg. Vol. 58, No.105. June 3,1993)

Dear Sir:

Transnuclear, Inc. submits the following comments with regard to the Proposed Rule to amend the 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).

We concur completely with the amendments proposed by the NRC. While Transnuclear has not been, and will not be, an applicant for a site-specific license of the type under consideration, we have been involved in several other licensing actions under 10CFR Part 72. It has been our experience that the NRC has often had difficulties responding in a timely fashion to license applications because of limited technical resources and unduly cumbersome administrative procedures. The proposed amendments, if adopted, will help address this problem in that they eliminate an unnecessary layer of agency review. The amendments will free valuable time of the Commission to concentrate on issues important to safety rather than on administrative procedures and will therefore contribute to improved nuclear safety. j Transnuclear also agrees with the proposal to retain the need for the Commission's 1 express authorization before issuance of any initial license for the purpose of storage at a -

monitored retrieval storage installation (MRS). A MRS as defined in 10CFR Part 72 is

. fundamentally different from an ISFSI and should be treated differently as originally intended.

The proposed amendments have the salutary effect of helping to emphasize the' distinction between an ISFSI and a MRS and the way in which each would be treated under 10CFR Part

72. .

., :4 siM TWO SKYLINE DRIVE

• HAWTHORNE. NEW YORK 10532-2120 TELEPHONE: 914 347-2345

• FAX: 914-347-2346

• TELEX: 681-8082

l l

l August 17, 1993 f Page Two l l

i We are pleased to see that the NRC is trying to address issues of efficient utilization of its limited resources. The proposed amendments are a helpful beginning. It is our hope that the NRC will next address some of the cumbersome and unfair processes codified in the ,

recently enacted Subparts K and L of 10CFR Part 72. l Sincerely, u

Alan S. Hanson (W

President ASH:laz I

NRC.ltr i

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E:ESTA LAKE MICHIGAN FEDERATION 1.4eMM 2Fn

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August 16,1993 g[C

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ret \ n e Presioent .

Attent. ion: Docketm.g and L.icensmg Branch mnm ... m uo,

- <ona \ se President ens rar c m Samuel Chilk 1-asurer

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Secretary to the Commission

~+'ar v U.S. Nuclear Regulatory Commission

~ T aaad'er Washington. D.C. 20555 e ast President "S"s"Lvn Re: Proposed Rule

?""7'i'n*f en D. 10 CFR Parts 2 and 72 see Donlevy athleen M Evans herrv fmkbemer ilan J.shnston 1.cnaci Aran. Ph o

Dear Secretary Chilk:

oben Auenv

<anx unr lln*lg The Nuclear Regulatory Commission (NRC) is proposing to amend its procedures

nom s > uurony. en o under which the Director of Nuclear Materials Safety and Safeguards (NMSS) can  !

' rank Nesbitt.Jr~ j ene soves issue a site-specific license for interim storage of spent fuel in an independent spent fuel storage installation (ISFSI). The amendment would eliminate the j

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";',*aff,';,, requirement of express Commission authorization before issuance by the Director l cumae si.uoer of NMSS of each initial license for interim storage of spent fuelin an ISFSI(but

,wr not for a monitored retrievable storge installation (MRS)). l

)

'.lenda L Daniel j","""O';',', ' The Lake Michigan Federation, a four- state, non-profit environmental

\ssistant Director and organization focusing on Lake Michigan pmtection, opposes this proposed rule.

Development Associate 4 Andrew J Comal y ,";,'l'C'",5P"=' 'Ile NRC characterizes this rule change as an administrative amendment which stet Attorne> would have no effect on the scope of NRC review of an ISFSIlicense application Y$"iwYsonsmDiryto, nor change the present opportunity for public hearing provided in NRC's rules.

Tslin*tTr'enor.

The Lake Michigan Federation respectfully disagrees. The proposed revision soutneoi wisconsm impacts much more than administrative intemal agency procedures.

Bruce N Johnson

%rtheast %inconsm Direcor it,'JlaNryto, This rule change is not just administrative simplification but rather is a means to further exclude the public from participation and involvement in licensing interim storage of spent fuel in an ISFSI.

Citi:en Action to Save a The express Commission authorization provides the public with more oppommity Great Lake for knowledge of the application as well as involvement in the kprocess.A second publication of the license application, which is required under the cunent rule, would be eliminated.

1. $0R$o8 0%

wmeo an % manne in,.coccytico r.no 39 L Van Buren St. . suite 2215 + Chicago IL 60605 = 312 939.0838 FAX 312 939.2708

'/ F FHk st.

• Grean Bav. M154304 414 499 0220

• F AX 414 499 R899

.47 W Vironia St. + ruite 307 + Milwaukee. WI 53204

• 414 271.5059

• FAX 414 271.0796 U3 W. Western Ave. + Suite 201

• Muskegon. MI 49440 616 722.5116

• FAX 616 722.4918

- A Further, the Commission meetings are by law open to the public. This is not true ,

for the Director's decisions.

This rule proposal reflects the policy decision that ISFSI licensing, because it is temporary, is in the same category of " principal licensing and regulation for facilities other than nuclear reactors." The rule proposal, according to the publication, would end the "special exception" for ISFSIs.

LMF contends that this rationale is incorrect. The ISFSI is not a "special exception." Rather the application for ISFSI licensing should be treated in the same category as licensing nuclear reactors or amending such licenses.

Licensing interim storage of spent fuel in an ISFSI should have Commission  :

review. Its members have the responsibility to review the application in tenns of ,

the public health and safety, and the rule should not be changed to delegate this important responsibility to the Director of NMSS ("or the Director's designee").

This rule proposal is another indication that the NRC's responsibility, under the Atomic Energy Act, to safeguard the public health and safety and to involve the ,

public in these important decisions, is given short shrift.  !

Sincerely, ]

s /sc j Glenda L. Daniel ]

Executive Director <

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Director, east Wisconsin Office N

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                                                                                                            . . em August 17,1993 Mr. Samuel Chilk Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555

Reference:

58FR31478 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Appheant

Dear Mr. Chilk:

These comments are submitted by the U.S. Council for Energy Awareness on behalf of its Facilities Operations Committee (FOC). These comments were prepared in response to the U.S. Nuclear Regulatory Commission's (NRC) request for comments on the proposed rule for interim storage of spent fuel in an independent spent fuel storage installation (ISFSI). The FOC membership consists of the owners and operators of fuel fabrication facilities, conversion facilities, uranium enrichment plants, material processing facilities, as well as transporters and other related service and supply facilities. A subset of the FOC membership is comprised of the non-utilities who have entered into the standard contract for the disposal of spent nuclear fuel and/or high level waste. Therefore, they are concemed with the continuing storage of spent fuel. The FOC has reviewed the proposed rule and endorses the concept that the Director of Nuclear Materials Safety and Safeguards can issue a site-specific license to a qualified applicant for an ISFSI and eliminate the need for express Commission authorization for each ISFSI. We believe, however, that the proposed rule does not go far enough. 'Ihe Director of Nuclear Materials Safety and Safeguards should also be permitted to issue a license for the construction and operation of a monitored retrievable storage (MRS) installation. As proposed for an ISFSI (10CFR2.764(b)), the Commission would still retain the right under special circumstances to issue the license. This would allow the Director of Nuclear Materials Safety and Safeguards to issue licenses for MRSs which are simple in design and operations--similar to the ISFSI--while the Comrmssion could rule on a more complex MRS if tequired. If you have any questions or would like clarification on our comments, please call Felix Killar or me. Sincerely, cc: Felix Killar

     .       Nb &l)

AUG-17-1993 16:29 FRCr1 NIRS-WASHINGTON.DC TO 3015043200 P.U1

                                                    ,ca<snuusen                            e1EN-/

xc =.e sute PR 2 e72 jyg y  ; LWMmt) t=1 n v 0, . , _ , _ , _ _ . Nuclear Information and Resoufce Service 142416th Street, N.W., Suite 601, Washington, D.C. 20036 (202) 328 0002" August 17, 1993 C. William Reamer, Stuart Treby , office of Gunwrul Counwel US NRC Washington, DC 20555 fax f 301-504-3200 This is a brief comnent on and request for a 30 to 60-day extension on the comment period for the Proposed Rule on Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; site Specific License to a Qualified Applicant i 58 FR 105:31476 June 3, 1993. The proposed rule appears to make the opportunity for site-specific l analysis and judicial review more remote than it now is. We and I several organizations concerned about the trend toward long-tern dry storage at reactors would like the opportunity to obtain a greater understanding of the proposed rule and its implications. Sincerely, Diane D'Arrigo Nuclear Information and Resource Service Bruce Johnson Lake Michigan Federation Mary Sinclair Don't Waste Michigan i yygg y a my m.wj,y ,m gh,}}