ML20214N969
| ML20214N969 | |
| Person / Time | |
|---|---|
| Issue date: | 09/12/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| REF-10CFR9.7 M860904, NUDOCS 8609170197 | |
| Download: ML20214N969 (13) | |
Text
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IN PESPONSE, PLEASE
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UNITED STATES NUCLEAR REGULATORY COMMISSION g
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W ASHIN GTON, D.C. 20555 o
September 12, 1986 OFFICE OF THE SECRETARY MEMORANDUM FOR:
Victor Stello, Jr.
Executive Director for Operations M
[hamuelJ. Chilk, Secretary FROM:
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION / DISCUSSION AND VOTE, 3:30 P.M.,
THURSDAY, SEPTEMBER 4,
- 1986, COMMISSIONERS' CONFERENCE ROOM, D.C. OFFICE (OPEN TO PUBLIC ATTENDANCE)
I.
SECY-86-195 - Denial of Petition for Rulemaking Concerning the Need and Safety of Shipments of Spent Nuclear Fuel (PRM-71-10)
The Commission, by a 5-0 vote, approved a response (as modified on the attached copy) denying a petition for rulemaking from the State of Wisconsin.
The petitions requested that the NRC establish a regulatory process for the evaluation and approval of individual shipments of spent nuclear fuel proposed by licensees.
The Commission has also approved a modified letter of response to the petitioner indicating the Commission's denial of the petition (copy attached).
The revised FRN and letter should be forwarded to SECY for signature and publication in the Federal Register.
(EDO)
(SECY Suspense:
10/6/86)
Attachments:
As stated cc:
Chairman Zech Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Carr Commission Staff Offices fDR - Advance VDCS - 016 Phillips i
PT9.7 PDR
i
[7590-01]
III.
PUBLIC CCMMENTS In resconse to the invitation for public comments on the petition for rulemaking, 44 comment letters were submitted to the NRC by State and local governments, individuals, public interest groups, and power and 1
other industrial companies. Of the 21 comment letters from State and local governments, 18 supported the need for the new regulatory process or some variation of it.
Those'who excressed reservations cited undue i
hardship associated with tne proposal, security problems, and undue delays associated with the proposed hearings. One Indian tribe noted the lack of any specific provision for involvement by Tribal governments.
Six of the seven individual commenters supported the rule for the reasons stated in the petition. The one who expressed reservations cited the lack of justification for the proposal. All six public interest groups supported the proposal for the reasons outlined in the petition. The 10 power com-panies and other industrial organizations that commented opposed the petition t
' citing lack of justification, cuplication, undue burcen, and lack of legal foundation.
In summation, 30 commenters supported tne petition primarily for the reasons given in the petition, anc 14 commenters opoosed the peti-j tion for lack of justification, duplication, security problems, undue burdens and delays, and lack of a legal foundation for the petitioner's proposal.
IV. CCNSIDERATION OF PETITION ISSUES c c u rs ssTo c^s %
The petitioner cites a number of a;;;..;-- in suoport of its request
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that the NRC adopt the proposals in the petition.
1.
Failure to consider safety or environmental risks of soecific 4
routes 5
Enclosure B O
[7590-01]
a II.
ISSUES RAISED The petitioner proposes a rule which would (1) prohibit unapproved spent nuclear fuel shipments; (2) reouire an application for approval which demonstrates (i) that the applicant will satisfy safety, safeguards, and routing requirements, (ii) that the shipment is necessary, (iii) that there are no unique risks along the proposed route, (iv) that alternatives to the shipment and route have been evaluated, and (v) that the proposed shipping cask will withstand all reasonably foreseeable incidents along the proposed route; (3) provide an opportunity for public participation in the approval decisfon; and (4) provide for adequate protection of the public healtn and safety.
ceT FS The petitioner elle;;; the existence of the following five conditions j
in su:: port of its claim that NRC needs to establish a regulatory process ',
for the evaluation and approval of individual shipments of spent nuclear
~
4 fuel proposed by licensees:
1.
No Federal agency considers the safety or environmental risks associated with selected routes; 2.
No Federal agency requires adequate safeguards to protect tne public in the event of an accident or of.ner emergency; 3.
The NRC does not regulate the carrier of spent nuclear fuel or consider its safety record; 4.
No Federal agency considers the need for or propriety of indivi-dual shipments of spent nuclear fuel; and 5.
The public has no opportunity for meaningful par.icioation with respect to tne decision to transport scent nuclear fuel.
4 Enclosure B
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[7590-01]
u m mvoN g
In its first d ' ;2 9 ", the petitioner, in speaking of spent nuclear
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fual shipments over the last 18 months, states that "no federal agency has considered...the safety or environmental risks associated with :ne selected routes...."
Petition at 4.
Later, the petitioner argues that "the NRC does not independently consider the safety of the particular d
route, does not evaluate the potential safety and environmental ris's of the snipment...."
I_c at 6.
Finally, in describing what it considers to be "a significant gap in the regulatory program," the petitioner states that "no agency considers risks' associated with specific routes." M.
The petition would require that an applicant for spent nuclear fuel ship =ent approval evaluate alternatives to the proposed route and demon-strate tnat the proposed shipment, including its route, is the alternative which provides the least risk of radiological exposure to the public.
The 00T has specific regulations for the routing of spent nuclear fuel by road which require, with certain exceptions, that the carrier operate over preferred routes which include interstate highways and State-designated alternate routes. The routes are selected after consiceration is given to minimization of radiological risk.
The routing rule was upneld by the Second Circuit Court of Appeals in City of New York v. Geoartment of Transoortation, 715 F.2d 732 (2nd Cir.1933), cert. denied, 104 S. Ct. 1403 (1934).
In upholding the COT regulation, the Court stated that the Ha:ardous Materials Transportation Act (hMTA) does not require that the safest means be used in transporting scent fuel or any otner ha:ardous material but only requires the DOT to promulgate rules tnat provice for adeouate safety.
M.at740. Inus, no Federal agency, under the HMTA, could require a licensee to show that the proposed shipment is the alternative which pro-vides the least risk as long as tne shipment provides for adequate safety
,as prescribec under tne 00T routing rules.
6 Enclosure B
[7590-01]
4 e
containment problem.
Furthermore, tne large mass of the cask would slow itt cooling, thereby reducing any potential for camage.
I 2.
Protection of the Public in Emeroencies conytwTo cov The petitioner's second Skgetic is that no Federal agency requires
" adequate safeguards to protect against emergencies," and that "NRC...only gives cursory attention to emergency planning." Petition at 5 and 6.
i The Federal plan for providing adequate safeguards to protect against radiological emergencies is described in a Federal Register notice issued by the FEMA on September 12, 1984 (49 FR 35396). The plan describes how 12 Federal agencies that have resources and capabilities to respond to a i
radiological emergency will work together and will work with State govern-ments and private organizations during an emergency response.
The plan, known as the Federal Radiological Emergency Response Plan i
(FRERP), describes how the Federal Government will respond to State requests for assistance during a major radiological emergency, how the Department I
of Energy (CCE) will maintain radiological monitoring and assessment suo-port to the State and local governments, and how tne other Feceral agencies are prepared to augment tne DOE suoport, if necessary. The FRERP has been tested by the Federal agencies and proven viable. NRC has issued a general statement of Policy on NRC Response to Accidents Occurring During the Transportation of Radioactive Material (49 FR 12335, March 29, 1934).
The scope of the FRERP specifically includes Federal response to I
transcortation accidents involving radioactive materials. One of the FRERP planning assumptions is tnat State or local governments have primary responsibility for determining and implementing any measures to protect life, orocerty, and the environment in any areas not within tne boundaries of a fixed nuclear facility.
In,a transportation accident, tne State er 4
4 10 Enclosure B
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[7590-01]
of radiological accicents. Approximately 400 persons are trained each year.
d.
NRC, through ORAU, offers --
A ten week program for State health pnysicists, training about 20 participants per year.
e.
Colorado Training Institute offers --
A three-day seminar and a two week course on all phases of hazardous materials transportation incident response, in-cluding radioactive materials. Originally funced by a grant from COT, but*now an independent State-run program.
On a training related issue, the 00T highway routing regulation re-quires that drivers of vehicles carrying spent nuclear fuel receive emer-i gency action training within the 2 years preceding that transportation.
The training must include the properties and hazards of the spent nuclear fuel and the procecures to be followed in tne event of an accident or other emergency. The 007 regulation also reouires the driver to have a copy of the mandatory route plan including telechone numbers wnich will access emergeacy assistance in each State to be entered.
49 CFR 55 177.325(c)-(d). The recuired training for escorts, applicable to all modes of transport, includes the following five subjects:
(1) security en route, (2) communications, (3) radiological considerations, (4) response to contingencies, and (5) response to threats.
3.
NRC Regulation of tae Carrier i.O H T C NTIO'V y
The petitioner's tnird l;; tten that "the NRC does not regulate A
the carrier or consider its safety record" fails to recognize that the CGT cerforms tnis function.
Petttien at 6.
CGT 1mooses regulations tnat relate to both tne ha:arcous nature of the cargo and the safety ascects 15 Enclosure B
[7590-01]
d i
safety ha:ards, and States and municipalities along the route may be ex-posed to substantial liability and costs for emergency response without any opportunity to question tne propriety of the shipment." Petition I
at 7.
Tne petitioner requests that an applicant for approval of an in-dividual spent nuclear fuel shipment be required to demonstrate that "the 4
proposed shipment is necessary to meet the requirements of the licensee's operating license or required minimum fuel storage cacacity." Petition at 2.
Ass c/tTioN t
i A State agreed with Wisconsin's a7"': s that there are significant gaps in tne regulatory program regarding shipment of spent nuclear fuel.
1 Scecifically, There should be a Federal policy designed to minimize spent i
i nuclear fuel shipments prior to the operation of a commercial t
I nuclear waste repository; and There should be a Federal regulatory system for evaluating the need for spent nuclear fuel shipments prior to the operation of j
l i
a repository.
I
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A State senator supported that view by noting tnat spent nuclear i
j fuel sni;ments which have been and are ceing made to tne Morris Storage l
Facility will have to be removed from Morris and transported again when i
the U.S. Government develops an interim storage facility or a disposal i
facility. He believes this raises the serious question of the necessity of shipments to Morris. An individual agreed by noting that shipments of l
scent nuclear fuel from Monticello, Minnesota to Morris, Illinois are being made only for economic gain since the storage pool at Monticello has about 4 more years of space left in it at current use rates.
l A cublic interest group asserted that there snould be c0nsiceration given to tne need for the snipments and tne safety and environmental risks 18 Enclosure B j
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-,. -, -.. ~,.... -, - - - - -, - - - -,.., - ~ -
[75g0-01]
the case of the additional controls sought by the petitioner, the technical benefits would be measured in terms of the value of normal and accidental exposures avoiced. While the costs of the new approval procedure pro-posed in the petition have not been quantified, it is the Commission's judgment that, because of the small technical benefits available under any foreseeable circumstances, a favorable cost / benefit balance could not be obtained.
5.
Opoortunity for Meaninoful Public Particioation c.o u r m 1'on/
The petitioner's final :ligtic,a in support of the proposal is that "the public has no opportunity for meaningful input into the decision to transport waste, as this decision is wholly within the discretion of the licensee." Petition at 7.
The petitioner requests that the "NRC exercise '
its regulatory authority to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum...." g at 1.
A State commenter reported that two public discussions held in advance of spent nuclear fuel shipments from the State had some constructive results.
l The utility involved was able to demonstrate that it had reviewed alternate means of addressing its storage problems, and State agencies, the utility, and the carrier were spurred by public concern to take safety precautions beyond the minimum required by Federal regulations. Based on this experi-ence, the State suggested three reasons for a positive response to the
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Wisconsin petition:
Open discussion of the issues may result in a greater range of choices, both formal and informal; Fears that public participation would somenow get out of hand and undermine rational, technically-sound decision making are 23 Enclosure B
[7590-01]
k A utility, after considering the NRC regulatory framework, safeguards / safety studies, and the safeguards / safety record, recommended that current requirements be reduced.
VI. NRC CONCLUSION The petition was examined in the context of the Memorandum of Under-standing (MOU) between NRC and 00T dated June 8,1979 (publisned July 2, 1979; 44 FR 38690), by which transportation regulatory functions are divided between the two agencies in the interest of completeness and avoidance of duplication of effort. Where the MOU calls for the DOT to lead in some particular area, such as in the regulation of carriers of radioactive material and the routes over which they travel, NRC does not consider its regulations or its regulatory programs to be deficient t
because they do not duplicate that control..The Commission concludes that its existing regulation of the transportation of spent nuclear fuel, when viewed in the context of the combined programs of NRC, COT, 00E, FE.vA and the c eates, is sufficient to provide adequate assurance against t G M TG H TIcN $
unreasonacle risk to tne health and safety of the public. The % -
- c., y c o IN t N..,
- the petition are therefore not accepted by the Commission as adequate justification for the changes requested in the petition.
The Commission also concludes that the procedures suggested in the petiton would not significantly serve to improve the protection of the public against unreasonaole risk from the transportation of racioactive matarials.
33 Enclosure B L
[7590-01]
e For the above reasons, tne NRC has cenied this petition.
f n/ $ G ItT
(.' 5 n-IE
/4 TTp u H 60)
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Dated at Washington, DC, this cay of
, 1956.
For the Nuclear Regulatory Commission.
Samuel J. Cnilk, Secretary of the Commission.
O t
34 Enclosure B
ENCLOSURE A Draft Denial Letter Carl A. Sinderbrand, Esquire Assistant Attorney General Department of Justice State of Wisconsin P.O. Box 7857 Madison, WI 53707
Dear Mr. Sinderbrand:
This letter responds to the petition for rulemaking (PRM-71-10), which you submitted to the Nuclear Regulatory Commission (NRC) on behalf of the State of Wisconsin in December 1984, requesting that the NRC expand the scope of its regulations pertaining to spent nuclear fuel transport to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum prior to the approval of the shipment and route,
- e. o r s a nt. t GC G O In support of the petition you !';;;d a number of deficiencies in the transpor-p tation regulatory programs of the entire Federal regulatory system and the NRC program in particular.
These alleged deficiencies, as consolidated from the petition, can be described as follows:
1.
No Federal agency considers the safety or environmental risks associated with selected routes; 2.
No Federal agency requires adequate safeguards to protect the public in the event of an accident or other emergency; 3.
The NRC does not regulate the carrier of spent nuclear fuel or consider its safety record; 1
ENCLOSURE A S
P-a 1
4.
No Federal agency considers the need for or propriety of individual shipments of spent nuclear fuel; and 5.
The public has no opportunity for meaningful participation with respect to the decision to transport spent nuclear fuel.
NRC published a notice of receipt of your petition in the Federal Register on February 4, 1985, 50 FR 4866, and requested comments.
Forty-four comments were received and were provided to you by letters dated April 24, 1985 from J. M. Felton and May 24, 1985 from John Philips.
The NRC has considered the petition and the public comments submitted in support and opposition to it.
For the reasons specified in the enclosed Federal Register Notice, the Commission has found that the justification provided in the petition for the new procedure requested for individual approval of spent nuclear fuel shipments is insufficient for that purpose and that the suggested procedure) would not significantly serve to improve the protection of the public against
unreasonable risk from the transportation of radioactive materials.
Therefore, your petition is denied.
s tv s e rt T Q
Sincerely,
[ HrmueGO)
Samuel J. Chilk Secretary of the Commission
Enclosure:
Federal Register Notice Denying Petition 2
ENCLOSURE A
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[ fort L 6 TTE R W
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While (76 Al f / Alc-the State of Wisconsin's petition for rulemaking, COM")I$e tainly recognize the concern on the part of Wisconsin and other States 5
r a e.
about the transportation of spect nuclear fuel and high level radioactive waste. The transportation of spent nuclear fuel is an issue which will affect many States. A safe and reliable spent nuclear fuel transportation system will be an important element for a successful nuclear waste disposal program.
While)/elievffhattheexistingfederalsystemprovidesadequate b
r a c conew s s s* A/
protection of the public health and safety, j' realizei he desire of Stdte,s t
for greater participation in the transportation regulation process.
If States desire an additional degree of confidence that spent nuclear fuel is rue c.,u%c.uca<
being transported safely within their borders, itsuggeststhat States examine the inscection and escort program of the State of Illinois.
Each spent nuclear fuel shipment traveling in Illinois is inspected by the State's Department of Nuclear Safety to assure that all appif cable federal and state radiation protection requirements are met. The Illinois State Police inspect and escort trucks carrying these shipmenis.
The Illinois Commerce Commission inspects rail shipments. This inspection and escort program provides Illinois with an added measure of assurance that spent nuclear fuel is being transported safely without, it appears, imposing burdensome procedures on licensees and carriers, i
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