ML23156A096

PR-002, 072 58FR31478 - Interest Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Applicant

ML23156A096
Person / Time
Issue date:	06/03/1993
From:	Chilk S NRC/SECY
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PR-002, 072, 58FR31478
Download: ML23156A096 (1)

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ADAMS Template: SECY-067 DOCUMENT DATE: 06/03/1993 TITLE: PR-002, 072 - 58FR31478 - INTERIM STORAGE OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION; SITE-SPECIFIC LICENSE TO A QUALIFIED APPLICANT CASE

REFERENCE:

PR-002, 072 58FR31478 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-002, 072 OPEN ITEM (Y/N) N RULE NAME: INTERIM STORAGE OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION; SITE-SPECIFIC LICENSE TO A QUALIFIED APPLICANT PROPOSED RULE FED REG CITE: 58FR31478 PROPOSED RULE PUBLICATION DATE: 06/03/93 NUMBER OF COMMENTS: 11 ORIGINAL DATE FOR COMMENTS: 08/17/93 EXTENSION DATE: 10/01/93 FINAL RULE FED. REG. CITE: 60FR20879 FINAL RULE PUBLICATION DATE: 04/28/95 NOTES ON FILE LOCATED ON Pl.

STATUS OF RULE TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 1 072 RULE TITLE: INTERIM STORAGE OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION; SITE-SPECIFIC LICENSE TO A QUALIFIED APPLICANT PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 93-112 SRM DATE: 05/24/93 SIGNED BY SECRETARY: 05/27/93 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 95-057 SRM DATE: 03/31/95 SIGNED BY SECRETARY: 05/07/95 STAFF CONTACTS ON THE RULE CONTACTl: C. WILLIAM REAMER MAIL STOP: 15G18 PHONE: 504-1640 CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-002, 072 (58FR31478)

In the Matter of INTERIM STORAGE OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION; SITE-SPECIFIC LICENSE TO A QUALIFIED APPLICANT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 05/27/93 05/27/93 FEDERAL REGISTER NOTICE - PROPOSED RULE 07/27/93 07/24/93 COMMENT OF ATOMS l WASTE (KEMP HOUC, EDITOR) ( 1) 08/13/93 08/09/93 COMMENT OF COMMONWEALTH EDISON (WILLIAM F. NAUGHTON) ( 2) 08/16/93 08/12/93 COMMENT OF DEPARTMENT OF ENERGY (DWIGHT E. SHELOR) ( 3) 08/17/93 08/16/93 COMMENT OF CUB - MADISON, WI (MR. DENNIS DUMS) ( 4) 08/17/93 08/16/93 COMMENT OF EDISON ELECTRIC INST.

(MR. STEVEN P. KRAFT) ( 5) 08/17/93 08/17/93 COMMENT OF TRANSNUCLEAR, INC.

(ALAN S. HANSON, PRESIDENT) ( 6)

- 08/17/93 08/17/93 LTR FROM NIRS TO REAMER/TREBY, OGC REQUESTING EXTENSION OF 30 TO 60 DAYS ON COMMENT PERIOD 08/18/93 08/16/93 COMMENT OF LAKE MICHIGAN FEDERATION (GLENDA L. DANIEL, ET AL) ( 7) 08/24/93 08/17/93 COMMENT OF U.S. COUNCIL FOR ENERGY AWARENESS (MARVIN S. FERTEL) ( 8) 09/08/93 09/08/93 NOTICE OF EXTENSION OF COMMENT PERIOD TO 10/1/93, PUBLISED AT 58 FR 48004 ON 9/14/93.

10/05/93 09/30/93 COMMENT OF NUCLEAR INFORMATION AND RESOURCE SERVICE (MARY OLSON) ( 9) 10/05/93 10/01/93 COMMENT OF MRS. JOHN SHILLINGLAW ( 10) 10/13/93 10/04/93 COMMENT OF ENVIRONMENTAL COALITION ON NUCLEAR POWER (DR. JUDITH H. JOHNSRUD, DIRECTOR) ( 11) 04/25/95 04/24/95 FEDERAL REGISTER NOTICE - FINAL RULE

DOCKET NUMBER PR ~ J- 11..

PROPOSED RULE...:;...;;....-- DOCK~TE

(~~ FR 3l'-!7r) US "C[7590-0l -PJ

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• 10 CFR Parts 2 and 72 r .,

RIN: 3150-AE64 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation at a Reactor Site; Site-Specific License to a Qualified Applicant AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its procedures to permit the Director of Nuclear Material Safety and Safeguards to issue a site-specific license to a qualified applicant for the interim storage of spent fuel in an independent spent fuel storage installaticn (ISFSI) at a reactor site following satisfactory completion of NRC safety and environmental reviews and after any public hearing on the application. The amendment eliminates the need for express Commission authorization for each ISFSI license. but does 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 rules of practice.

EFFECTIVE DATE: (30 days after publication)

2 ADDRFSSES: The documents referenced in this final rule are available for inspection and copying for a fee at the NRC Public Document Room, 2120 L Street. NW. (Lower Level). Washington. DC. Copies of NUREG-0575 and NUREG-1092 may also be purchased from the Superintendent of Documents, U.S.

Government Printing Office. P.O . Box 37082. Washington. DC. 20013-7028 .

Copies are also available from the National Technical Information Service.

5285 Port Royal Road. Springfield. VA. 22161.

FOR FURTHER INFORMATION CONTACT: C. William Reamer. Office of the General Counsel. U.S. Nuclear Regulatory Commission, Washington, DC 20555.

Telephone: (301) 415-1640.

SUPPLEMENTARY INFORMATION:

I. Background II. Sunmary of Proposed Rule III. Public Conments and the Corrrnission*s Response IV. Section-by-Section Analysis V. Environmental Impact : Categorical Exclusion VI . Paperwork Reduction Act Statement VII. Regulatory Analysis VIII. Regulatory Flexibility Act Certification IX. Backfit Analysis I . Background Under 10 CFR Part 72. the NRC will issue a specific license for the interim storage of nuclear power pla11t spent fuel in an independent spent fuel

3 storage installation CISFSI) if NRC dete~mines 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 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 (DOE) planned geologic repository for disposal of radioactive waste. Part 72 applies to site-specific licenses for storage of spent fuel in an ISFSI Cup to 20 years with renewal at the option of the NRC) or a monitored retrievable storage installation (MRS) (up to 40 years with renewal at the option of the NRC). Although Part 72 also applies to spent fuel storage in approved casks at an ISFSI at a reactor site pursuant to a general license (10 CFR Part 72, Subpart K), the general license is not covered or affected by this rulemaking.

On June 3, 1993 (58 FR 31478). the Commission proposed rulemaking to modify the Commission's procedures for the issuance of a specific ISFSI license to a qualified applicant. After considering the public comments received in response to the Commission's request. the Commission has decided to adopt the proposed rule as final with one clarification. Specifically, the final rule covers an ISFSI at a reactor site. (The proposed rule was not explicit on this point.)

II. Summary of Proposed Rule As set forth in its notice of proposed rulemaking (58 FR 31478-81). the Commission proposed to amend the procedures that authorize the NRC Director of Nuclear Material Safety and Safeguards (or the Director's designee) to issue a site-specific license for the interim storage of spE:,t cuel in an ISFSI under

i 10 CFR Part 72. This type of license would be issued 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 au,thorization for each ISFSI license, after the NRC review-and determination that a license should be issued under 10 CFR Part 72, but before the Director actually issued the license. However, the proposed rule would not affect, in any way, existing procedures for the NRC review or the opportunity for public hearing.

III. Public Comments and the Commission's Response In response to publication of the proposed rule and request for public comments, including extension of the public comment period (58 FR 48004; September 14, 1993), NRC received 11 written comments. (Copies of the comment letters are available for inspection in the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC). In some instances, similar comments were offered by more than one commenter, and comments were therefore grouped into the categories that are set forth below, together with the Commission's response.

1. Comment: The proposed rule forecloses public participation in important reactor spent fuel storage decisions.

Several comments took issue with the Commission's statement in the notice of proposed rulemaking that the amendment would not affect the opportunity for a public hearing provid2d in NRC's rules of practice. One

5 commenter argued the amendment would exclude public participation given that the existing procedure (i.e .. without the rule change) provides the public more opportunity for knowledge of an ISFSI license application because there is a second publication of notice and an open Commission meeting on the application. A second commenter expressed the view that the proposed rule should not be applied to its pending petition for hearings on the Calvert Cliffs ISFSI.

Another commenter criticized NRC for what the commenter called a refusal to open NRC doors to public participation on the spent fuel storage issue despite growing public opposition to spent fuel storage as a threat to the environment. That commenter cited public hearing requests from the Michigan Attorney General and citizens interested in the Palisades nuclear plant in a recent NRC storage cask approval rulemaking (58 FR 17948;' April 7, 1993) and argued other facilities were also experiencing public opposition to spent fuel storage or transportation plans.

Response: Commission procedures provide a broad opportunity for public participation in ISFSI decisions. The Commission is not changing the public participation process in any manner in this rulemaking.

Rather. these rulemaking amendments mainly affect future NRC proceedings in which the public chooses not to participate. In this regard, we should highlight the limiting language in amended§ 72.46(d) which begins with the words "If no request for a hearing or petition to intervene is filed ..

If. on the other hand. an interested member of the public does want to participate in a hearing on an ISFSI license. then these rulemaking amendments will in no way limit the opportunity to do so. In addition. the amendments

6 will ;--;ot change the right of hearing participants to r~quest. Commission review before any ISFSI license is issued.

The public participation opportunities in NRC site-specific licenses for ISFSis were detailed in the Commission's notice of proposed rulemaking, as follows:

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 person whose interest may be affected may file a request for a hearing or a petition for leave to intervene. Potentially affected persons and entities have a right to obtain all relevant NRC staff safety documents. as well as all technical submissions of the license applicant. 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 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

I 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 10 days after the decision, without being required to obtain additional, express Commission authorization to do so (See 10 CFR 2.764(a) and Cb)).

The opportunity for public hearing described above, including the opportunity to request Commission review before issuance of a site-specific license for an ISFSI, will continue even with adoption of these rulemaking amendments. Accordingly, because the amendments have no effect at all on public participation, they would also have no retroactive effect on any petition regarding Calvert Cliffs.

Therefore, regarding the comment that NRC doors are closed to public participation generally on spent fuel storage issues. the Commission believes the true facts are quite different. With respect to the commenter's criticism of an unrelated 1993 NRC cask-approval final rule (58 FR 17948; April 7, 1993), involving a storage cask Ci .e., VSC-24) later used at the Palisades nuclear plant, which is not a relevant matter to be addressed in this rulemaking, the final rule and public participation procedures were recently upheld by the United States Court of Appeals for the Sixth Circuit. Kelley v.

Selin, No. 93-3613 (6th Cir., Jan 11, 1995)(" . . . [PJetitioners* assertion that the NRC attempted to shut them out of meaningful participation on the question of the use of the VSC-24 casks is meritless. "). The description of

8 and rationale for that rulemaking process can be found in the 1993 final rule.

(E.g., 58 FR 17962-63; April 7, 1993).

The Commission has been entrusted with the responsibility to protect the public health and safety, and to provide adequate assurance for public confidence, in the safe storage of spent nuclear fuel from nuclear power plants in the United States. It is NRC's responsibility as a regulator to verify the adequate protection of the public health, safety, and the environment, and to conduct its processes in the open with opportunity for full public participation. In carrying out its responsibilities. NRC will continue to rely on, among other things, a careful, comprehensive public health and safety examination of each ISFSI application, addressing NRC requirements covering site-related parameters, facility design, systems for protection against potential accidents, quality assurance and quality control.

worker training, emergency planning, and operating plans and programs to ensure protection of the public from radiation and radioactive materials. To provide further assurance, NRC will continue to rely on a broad, selectively applied program of nuclear plant inspections and compliance reviews, using resident inspectors stationed at each nuclear plant ISFSI site throughout the United States, supported by augmented, expert teams as may be necessary to judge the quality of licensee compliance with ISFSI requirements. NRC will also continue to conduct its ISFSI activities through an open regulatory process that demonstrates, at all stages, an objective and full consideration of public views and concerns.

2. Comment: There are growing technical problems which should lead NRC not to go forward with its ISFSI storage rulemaking proposal.

9 One commenter claimed that technical problems at existing ISFSis show dry storage will not prove to be a satisfactory solution to utilities' need for additional spent fuel storage capacity. The commenter claimed that dry casks at the Surry ISFSI were operating beyond their designed thermal, radiation and pressure limits; it also claimed that casks systems at Palisades and systems proposed for use elsewhere have inadequate thermal safety margin.

The commenter stated that internal NRC studies (CNWRA-93-0006, May 1993) raise other safety *problems that will increu~e spent fuel management costs which the public ultimately must pay. The commenter argued that, given the problems, NRC should not amend its ISFSI licensing procedures as proposed.

Response: Although the comment principally relates to specific plants and therefore seeks to present broader issues independent of the narrow procedural subject matter of this rulemaking, the following information is offered to address the stated concerns.

Spent fuel has been safely stored in independent storage casks at the Surry nuclear plant site for nearly seven years without, to date, serious incidents or reports of casks operating outside specified thermal radiation, or pressure limits. Moreover, the cask limits at Surry, which were measured at cask loading and are expected not to change significantly during normal operations, will continue to be monitored on a periodic basis. In addition, dry storage at the Palisades plant commenced about one and one-half years ago after a 1993 NRC rulemaking to approve the VSC-24 storage cask (58 FR 17948; April, 7, 1993). That rulemaking exhaustively covered a number of public comments relating to Palisades and, in particular, comments questioning thermal safety margins of the storage cask. NRC responses to those public comment~. particularly the response to comment 26, detail the basis for NRC

10 acceptance of the thermal margins for the VSC-24. As set forth in the response, the basis for NRC acceptance of the VSC-24 included assurance that cask thermal margins were calculated using conservative assumptions (e.g.,

sustained ambient temperatures of 100 °F over several days; little heat conduction through the ends of the canister; fuel clad temperatures based on a peak heat generation rate rather than an average rate; a fuel temperature criterion derived from long-term degradation mechanisms rather than short-term mechanisms that would have led to a much higher temperature standard).

Moreover, as indicated in the response, the calculated margins for the VSC-24 were significantly larger when more realistic assumptions were used in the calculations. 1 Thermal analyses and calculations have also been satisfactorily resolved with respect to another cask system, the NUHOMS dry storage system. Rulemaking was completed in January 1995 for the NUHOMS system, and the applicant and NRC staff analyses and calculations are available in the docket of that rulemaking. See Docket No. PR-72 (59 FR 28496)("List of Approved Spent Fuel Storage Casks: Addition")(see also 59 FR 65898).

Turning to the internal NRC study referenced in the comment that is the subject of this response, it is important to fully identify that the report is actually directed not at spent fuel storage at reactors, but rather at long-term geologic disposal of high-level waste and spent fuel over thousands of years. Consequently, the report does not draw conclusions that would be 1

On August 1, 1994, Consumers Power Company, the Palisades licensee, reported that two small crack-like indications and a slag-like indication had been discovered in review of radiographs of a weld in a component of a VSC-24 cask at the Palisades ISFSI. After additional analyses, the licensee concluded the cask met requirements and was capable of safely storing fuel for the 20-year license term. The licensee has nonetheless decided to remove from service and replace the cask.

] 1 directly relevant to decisions about interim storage of spent fuel in ISFSis or, more significantly, that would be contrary to the NRC's experience with such storage to date. As discussed elsewhere (e.g., 58 FR 17948; April 7, 1993; 55 FR 29181; July 18, 1990: 54 FR 19379: May 5, 1989) and as summarized below, NRC experience to date is that spent fuel can be safely stored under dry conditions over the 20-year licensed term of an ISFSI without presenting significant public health and safety risks.

Irradiated reactor fuel has been handled under dry conditions since the mid-1940's when fuel examinations began in hot cells. Light water reactor fuel has been handled in dry cells since the early 1960's, and some fuels have been in storage under dry conditions for approximately 20 years. Experience with storage of spent fuel in dry casks is extensive, and it is growing. Six nuclear power plant sites are already using dry cask storage: Virginia Power's Surry Station (500 assemblies): Carolina Power and Light's H:B.

Robinson Station (60 assemblies); Duke Power's Oconee Station (530 assemblies); Public Service of Colorado's Fort St. Vrain facility (1480 fuel elements); Consumers Power's Palisades plant (160 assemblies); and Baltimore Gas and Electric's Calvert Cliffs Station (190 assemblies). A seventh plant -

- Northern States Power's Prairie Island plant -- will begin loading assemblies in March 1995. As a result of the growing use of dry storage technology experience, NRC has over 35 staff years of experience in licensing ISFSI storage, further supported by the knowledge and experience of an outside pool of recognized, expert scientists and engineers to perform independent safety analyses of ISFSI systems and components proposed by licensees and vendors in the field.

12 The successful experience to date in the dry storage of spent fuel storage and the licensing of ISFSis in the United States. provides support for the Commission's belief there is reasonable assurance such storage and licensing can safely continue without the need for express Commission authorization of each ISFSI license at a reactor site. However. past successes provide no guarantee for the future. and the Commission therefore hastens to emphasize that the NRC staff -- under the Commission's active supervision. as described in this document will continue to bring to bear its full experience in the review. licensing, and inspection of ISFSis.

3. Comment: The Commission proposal would unacceptably reduce Commission oversight of the siting of ISFSis.

Several comments opposing the Commission proposal believe it will reduce NRC oversight of spent fuel storage, and they find that reduction unacceptable for several reasons. One comment reflecting this view stated that. because the federal government was unable satisfactorily to solve the high-level waste (HLW) management problem, and given the growing storage of spent fuel at reactor sites, there is increasing public concern over ISFSI storage and a consequent need for more, rather than less, Commission regulatory oversight of siting decisions. Another commenter stated that ISFSI licenses should have Commissioner review because Commission members have the responsibility to protect public health and safety and should not delegate it to the Director.

NMSS, or to anyone else.

Other comments argued the rule change was inappropriate because of the likelihood that the number of ISFSI licenses will increase in the future and the Commission-would therefore increasingly need to supervise the licensing process. One commenter, for example, observed that r'equiring the NRC staff to

13 explain all aspects of a specific ISFSI license to the Commissioners would necessary lead to a more careful review, and that this additional layer of review would become even more important as the number of ISFSis grew.

Another commenter argued that the Commission seemed to view its license approval review as "marginal to safety," and disagreed with this view on the ground that spen~ fuel storage in an ISFSI created a significant hazard to the public in the vicinity of the storage facility.

ResQonse: While it is true the Commission believes its express authorization of each ISFSI license -- the internal procedure that is the subject of these rulemaking amendments -- is an unnecessary, additional layer of agency review, and therefore, can be eliminated without reducing public health and safety protection, the Commission's belief is based on its years of experience in supervision of the entire NRC licensing review process for ISFSis which the Commission will continue to oversee.

The anchor point of the NRC's internal review process to protect public health and safety from the potential risks of a proposed ISFSI is the NRC staff's technical review of the license application. As described in the notice of proposed rulemaking, that process is as follows:

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

14 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 necessary to complete the ISFSI application. will thoroughly rc*iew 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 CEA) for the 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 acti* ities would, in any way, be modified by this proposed amendment. (58 FR 31479; June 3, 1993). -

After issuance of an ISFSI license, NRC regulatory responsibilities during the 20-year license term include an inspection and enforcement program, providing for an NRC resident inspector at every licensed reactor site of an ISFSI in the United States, supplemented as necessary by teams of engineers and technical specialists, performing inspections in a wide variety of engineering and scientific disciplines, and ranging from civil and structural engineering to health physics and QJality assurance. By means of selective

15 examinations, NRC's inspection program seeks to ensure that each ISFSI licensee is meeting its responsibility for safe maintenance and operation of the ISFSI, in accordance with NRC regulations. The program is preventive in nature, and is designed to anticipate and preclude potentially significant public health and safety events or problems by identifying underlying safety concerns or latent vulnerabilities for prompt licensee management attention and adequate corrective action. NRC inspections supplement, rather than e supplant, the li~ensee's programs, so as to provide an independent check or verification of the effectiveness of those licensee programs and their strict conformance with NRC requirements.

The Commission, alone, is ultimately responsible and accountable for the successful regulation of spent fuel storage in licensed ISFSis to protect the public health and safety. These rulemaking amendments do not change in any .,;;

way the Commission's responsibility and accountability to the public and its elected representatives. Rather, in one respect, these amendments modify how the Commission will perform its responsibility Ci .e., they eliminate a Commission vote before issuance of an ISFSI license at a reactor site). After the amendments become effective, however, the Commission will still have, and will still continue to fulfill, the responsibilities to supervise and direct the NRC staff's performance of the licensing, inspection, and enforcement activities described above. The NRC staff is required to keep the Commission fully and currently informed about significant proposed licensing actions.

This means the Director, NMSS, must notify the Commission before issuance of any license for an ISFSI. The Director must also notify the Commission if the staff's inspection program reveals any significant public health and safety matter relating to ISFSI operations that are of regulatory concern. The NRC

16 staff is also required to bring any sign~ficant policy issue regarding ISFSI activities to the Commission's attention for resolution. This means the Commission will continue to make any decision involving any significant new ISFSI issues that may arise in the future. In addition, any member of the public who has specific concerns about a proposed ISFSI license can bring them to the Commission for resolution in NRC's public hearing process, as described previously in this notice. In short, through these mechanisms, which are adequate and we*11-suited for the purpose, the Commission will continue to perform all of its health and safety responsibilities to the public, and will ensure that ISFSI regulation by NRC continues to takes place under the Commission's supervision and direction. If new information becomes available that casts doubt on the adequacy of the oversight mechanisms, the Commission can and will take action which could include reversal of these rulemaking amendments.

4. Comment: ISFSI licensing should be the same as licensing for new reactors. an MRS or for the disposal repository which the Commission would need to specifically approve.

Several comments. opposing the proposed rule, express the view that the Commission should apply to specific ISFSI licenses the same Commission approval process it would use to license nuclear reactors, a monitored retrievable storage installation (MRS), and HLW disposal facilities.

One commenter, for example, stated that, given that the cumulative load of discharged irradiated spent fuel in a spent fuel pool could contain more radioactivity than an operating nuclear reactor, greater care should therefore be given to ISFSI licensing than to the reactor itself because the potential for release is greater. Another comment, adopting the view that ISFSI

17 licensing should be in the same category as licensing ~uclear reactors or amending such licenses. stated the Commission should not characterize Commission approval of ISFSI licenses as a "special exception." Other commenters stated that spent fuel is highly radioactive and its quantity increasing. Therefore. in their view, the requirement for Commission approval of ISFSI licensing, in addition to NRC staff review, as in the case of licenses to operate reactors, is consistent with the NRC's longstanding regulatory philo~ophy of redundancy of safeguards and defense-in-depth.

Several comments also opposed the proposed rule change on the ground that it would make ISFSI licensing less stringent than the licensing review afforded to disposal of spent fuel in a repository. One commenter. for example. stated that. in the absence of a viable disposal solution, storage of spent fuel in an ISFSI cannot be labeled "temporary," and should therefore be done under procedures comparably stringent to those for "permanent" disposal facilities.

Another commenter viewed elimination of Commission review to be at odds with the history of the MRS which was authorized only through Congressional action in the Nuclear Waste Policy Act and which could be constructed in the future only after further Congressional action. In this commenter's view. the amount of spent fuel stored at the various ISFSis under NRC license was approaching the amount that might be expected to be stored at the MRS.

Another commenter, who also compared the quantity of spent fuel stored in ISFSis to the capacity of an MRS, stated that NRC was not properly perceiving the inherent hazards in spent fuel storage operations.

Response: The Commission agrees in part with the thrust of the comments, that is, that NRC regulations as applied should achieve a comparable

18 level of protection for the public health and safety, wheth~r the NRC-licensed activity is operation of a nuclear power reactor. storage of spent fuel in an ISFSI or an MRS, or disposal of high-level radioactive wastes in a geologic repository. Significantly however, the goal of comparable protection does not mean ISFSI activities must be regulated by NRC's using the same NRC requirements as for reactors or geologic repositories.

Specifically, the public health and safety risks posed by ISFSI storage, described in various publicly availdole NRC documents identified below, are very different from the risks posed by the safe irradiation of the fuel assemblies in a commercial nuclear reactor, which requires that adequate protection of the public factor in the conditions of high temperatures and pressures under which the reactor operates. The risks of ISFSI storage are also very different from those posed by the safe disposal of the irradiated fuel in a geologic repository, which would require isolation of the wastes from the accessible environment for thousands of years.

Nuclear fuel irradiated in a power reactor is highly radioactive and produces considerable heat. However. after the minimum 1 year c,* cooling that precedes its storage in an ISFSI, cooling and some shielding requirements will decrease as a result of the natural decay process over time. See Generic Environmental Impact Statement on the Handling and Storage of Spent Light Water Power Reactor Fuel (NUREG-0575-V-1, August 1979) at 2-2. A fuel assembly cooled for 10 years after discharge from the reactor (typically the age of spent fuel actually placed in dry storage) generates approximately 500 watts of heat, which is on the order of the amount of heat generated by the light bulb in a flood lamp. In addition, its radiation dose rate is approximately one half the rate when it was discharged from the reactor.

19 ISFSis are therefore designed to adequately dissipate the remaining heat, provide sufficient shielding from the radioactivity, and safely confine any gaseous and particulate radioactive nuclides.

The potential ability of irradiated fuel to adversely affect public health and safety and the environment is largely determined by the presence of a driving force behind dispersion. Therefore, it is the absence such a driving force, due to the absence of high temperature and pressure conditions in an ISFSI (unlike a nuclear reactor operating under such conditions that could provide a driving force), that substantially eliminates the likelihood of accidents involving a major release of radioactivity from spent fuel stored in an ISFSI.

[DJuring normal [storage] operations the conditions required for the release and dispersal of significant quantities of radioactive materials are not present. There are no high temperatures or pressures present during normal operations of under design basis accident conditions to cause the release and dispersal of radioactive materials. This is primarily due to the low heat generation rate of spent fuel with more than the one year of decay before storage in an ISFSI required by the rule and with the low inventory of volatile radioactive materials readily available for release to the environs. (45 FR 74693; November 12, 1980).

Further, since its radioactive content is in the form of solid ceramic material (except for some gaseous fission products) encapsulated in high integrity metal cladding, spent fuel is relatively invulnerable to sabotage and natural disruptive forces. See Environmental Assessment for 10 CFR Part 72, "Licensing Requirements for the Independent Store]~ 1f Spent Fuel and

~o High-Level Radioactive Waste," at II-15 and 16 (NUREG-1092, August 1984); see also 45 FR 74693 (November 12, 1980).

Although the risks associated with ISFSis described above differ from those of nuclear power plant operation or geologic disposal, the Commission's regulatory responsibility to ensure adequate protection remains the same.

However, the manner in which it discharges those responsibilities will differ.

Significantly, because of the very different risks, the Commission would not automatically apply all regulatory requir2ments to ISFSis that it applies to other regulated activities. More particularly for this rulemaking, based on its experience to date, the Commission believes it can and should fulfill its public responsibilities, through the ISFSI licensing and inspection process described earlier in this notice, as supervised and directed.by the Commission, but without the need for specific Commission authorization of every ISFSI license in the future.

However, as discussed in response to comment 8, the NRC licensing experience that supports this rulemaking to eliminate specific Commission approval of ISFSI licenses is not sufficient to support a similar change for the MRS or for an ISFSI at other than a reactor site. Therefore, the Commission intends that NRC rules continue to require specific Commission authorization before issuance of a license for an MRS or a license for an ISFSI that is located at a site other than a reactor site.

5. Comment: The cost savings for the agency and utilities are not an appropriate basis for the rulemaking amendments.

Several commenters took issue with the Commission's statement in the proposed rule that the amendments could save money that would otherwise be spent on u,1necessary agency reviews.

• On2 commenter characterized the prospect

21 of financial savings for the.agency and its licensees as "offensive," because it was being used to justify elimination of a "safety-related" review of ISFSis whose failure could lead to significant adverse consequences to the public health and safety. Another commenter similarly challenged the Commission's rationale for reducing the costs of duplicative Commission review on the ground that the Commission's responsibility is to protect the public health and safety, not the nuclear industry's financial well-being or its profitability for stockholders.

Response: As the foregoing responses to comments make clear, the Commission's experience to date leads it to believe it can fully perform its public protection responsibilities without specific authorization of every license for an ISFSI at a reactor site that is now required under the Commission's current process. The extra step of express Commission authorization for each specific license is a minor, ancillary matter in protecting public health and safety. If the Commission thought the additional step was needed for safety, then it would require the review step regardless of its cost.

Therefore, one consequence of the current process (i.e .. the process that includes the extra step of specific Commission authorization) is that someone is paying the bill for agency review steps that are not really needed.

Because Commission funding is recovered from the nuclear industry through license fees and the like, the people who are paying the bill are normally utility ratepayers. Significantly however, the Commission would have proposed these rulemaking amendments even if its costs were not recoverable and, in that case, the people paying the bill were the U.S. taxpayers.

22 The Commission has the. public interest responsibility to regulate effectively without imposing unnecessary or overly burdensome ~egulatory costs. Where, as here. the Commission can make rulemaking amendments that will allow it to perform its public health and safety responsibilities more efficiently, but do not diminish in any way the license applicant's obligation to demonstrate to NRC (and to any member of the public who is interested) that a proposed ISFSI is safe, then the Commission believes it should make those rulemaking amendments.

6. Comments: The revision is a useful simplification of existing procedures that does not create any impacts adverse to safety. Given the proven safety and reliability of ISFSis, NRC licensing procedures should not have layers of unnecessary reviews that are not used in other NRC licensing actions.

Several comments received on the notice of proposed rulemaking favor the NRC proposed rule change. One commenter stated the amendments do not change the fact that the license applicant must still undergo a comprehensive public health and safety review, environmental assessment and an opportunity for public hearing, in order to ensure the proposed ISFSI is sa~e and in compliance with NRC regulations. The commenter noted the only change would be elimination of Commissioner approval.

Another comment supporting the change stated it would make ISFSI procedures more like NRC licensing procedures for other types of facilities handling nuclear materials, and justified it on the basis of the safety and reliability of spent fuel dry storage in ISFSI. The commenter also noted the rule is consistent with Congress* intent in the Nuclear Waste Policy Act (Sec. 131(a)(2)) that directs the Federal government to expedite additional spent

fuel st0rage capacity and encourage dry storage technologies which have been proven to be safe. It further argued the change was in keeping with NRC initiatives elsewhere to reduce unnecessary regulatory burdens without reducing public health and safety protection. It also noted the only practical effect of the change was to eliminate mandatory Commissioner review in uncontested licensing action.

Response: The Commission generally agrees with this comment.

- However. the Commission notes that substantial reliance is being placed in this rulemaking on the demonstrated safety and reliability of dry storage at reactors in ISFSis to date. In this connection, although NRC has an important regulatory role outlined elsewhere in this notice. licensees have the primary responsibility for safe ISFSI operations. to protect the public health and safety, and to abide by NRC regulations. If circumstances warrant in a particular case. or if significant new information becomes available. the Commission could require specific Commission authorization before issuance of any ISFSI license in a future case.

7. Comment: The rule needs to reflect that DOE continues to pursue plans for interim storage.

The U.S. Department of Energy (DOE) submitted a comment expressing concern that the notice of proposed rulemaking printed in the Federal Register gave the erroneous impression that DOE is not pursuing plans respecting interim storage. In recounting the history of the MRS. the DOE states the Nuclear Waste Policy Act of 1982 (NWPA) adopted a policy of spent fuel disposal in repositories and did not authorize large-scale storage facilities.

DOE goes on to state that Congress amended the NWPA in 1987 to authorize an MRS subject to specific conditions. after DOE recommended a mandated MRS site-

24 specific proposal. The DOE comment also indicates that DOE plans continue to include interim storage. DOE requests the discussion accompanying the proposed rulemaking change should be revised to accurately reflect DOE's position.

Response: The rulemaking record should. be corrected to reflect the facts set forth in DOE's letter. The Commission did not intend any of its statements in the notice of proposed rulemaking to imply circumstances contrary to those described by DOE. -

8. Comment: The Commission's proposal not to extend the rule change to the MRS. thereby continuing the need for express Commission authorization before the Director could issue an MRS license, drew opposing views.

Several comments took opposing positions on the Commission's proposal not to eliminate Commissioner authorization for issuance of a license under Part 72 for the MRS. One commenter posited that an MRS might be simple in :i.

design and operation. much like an ISFSI, and therefore ought to be licensed by the Director, NMSS, without the need for specific authorization by the Commission. The comment recognized that the proposed MRS design might be more complex than an ISFSI, in which case the MRS license could be reviewed by Commission before issuance.

Another commenter. however, agreed with the Commission's proposal not to change the requirement for express Commission authorization of an MRS license, arguing the different procedure is justified by a fundamental difference between an ISFSI and an MRS. as those facilities are defined in Part 72.

Response: As the differing comments reflect. there is. at this time, no DOE license application or DOE-proposed design for an MRS that is before the Commission. In addition, the Commission has no basi: ~L speculate on any

25 interim storage design that DOE might propose for licensing, including whether it would be similar to the ISFSI facilities licensed by NRC to date.

Therefore, inasmuch as the Commission cannot now determine that NRC licensing experience with ISFSis would be directly applicable to an MRS, it has decided not to eliminate the requirement for express Commission authorization.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 Jf storage at an MRS by DOE. In this connection, the Commission notes that the DOE letter referred to in comment 7 does not disagree with this aspect of the NRC rulemaking amendments.

Similarly, various plans have received mention recently regarding possible private ISFSis at non-DOE sites (e.g., a new off-site ISFSI for the Prairie Island plant located within Goodhue County, Minnesota at a site not on Prairie Island). However, the Commission has no basis to speculate on these possible facilities or their designs. Therefore, since the Commission cannot determine that its ISFSI licensing experience would be directly applicable to these possible facilities, it has decided not to eliminate the rec Jirement for express Commission authorization 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 an ISFSI that is not located at a reactor site.

9. Comment: The Commission should not make rule changes that would result in an ISFSI being licensed by Agreement States.

One comment questions the proposed rule change on the ground that it might open ISFSI siting to licensing by Agreement States which may not be technicully prepared to handle the responsibility.

26 Response: The proposed rule does ~ot open ISFST~ to licensing by Agreement States. As the comment correctly notes. a number of States have agreements with the Commission or its predecessor. the Atomic Energy Commission. pursuant to section 274 of the Atomic Energy Act of 1954. These agreements typically provide for the Commission to discontinue. and the State to assume. responsibility for regulating certain nuclear materials in order to protect the public health and safety. However. under section 274 of the Act.

the Commiss~on will not discontinue regulatory responsibility for special -

nuclear materials in quantities sufficient to form a critical mass. Because spent nuclear* fuel may contain special nuclear materials in such quantities.

Agreements States therefore have no authority to license spent fuel storage in an ISFSI. *i*

The Commission's exclusive authority to license ISFSis is reflected in§ 72.8 of NRC regulations which provides that "Agreement States may not issue licenses covering the storage of spent fuel in an ISFSI . . . . " The foregoing regulation would be unchanged by this rulemaking.

IV. Section-by-Section Analysis This portion of the notice contains a section-by-section analysis of the rulemaking amendments. A comparable analysis was provided in the notice of proposed rulemaking for these amendments (58 FR 31478; June 3. 1993). The following analysis. among other things, clarifies that the rulemaking amendments apply only to an ISFSI located at a reactor site.

A. Rules of Practice (10 CFR 2.764).

The Commission is amending 10 CFR 2.764(c) to modify the references in the section to "an independent spent fuel storage installation CISFSI)" by

27 adding at the end of each of.the references the words "located at a site other than a reactor site." As amended, the provision continues to apply in the future to licensing of an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or licensing of a monitored retrievable storage installation (MRS) under 10 CFR Part 72. The amendment eliminates the requirement of express Commission authorization before issuance by the Director of NMSS (or the Director's designee) of each initial license e for interim storage of spent fuel in an iSFSI at a reactor site. The general rule applies under which the Director, NMSS, has delegated authority, when no public hearing on the application has been requested, to issue a license for an ISFSI at a reactor site 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 amendment to 10 CFR 2.764, if the application is the subject of a public hearing, then the Director will issue the license for an ISFSI at a reactor site 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) are being clarified to explicitly incorporate "a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI) at a reactor site" to thereby cover any application for a specific ISFSI license at a reactor site that is the subject of a public hearing.

Under other provisions of the Commission's rules pertaining to the opportunity for public hearing that are not being changed, a party to the hearing coL:ld request Commission review and ask the Commission to stay the

28 effectiveness of the Board's decision (including any direction for issuance of any ISFSI license at a reactor site) 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. Licensing Requirements for ISFSis (10 CFR 72.46).

The amendment of 10 CFR 72.46(d) modifies the reference to "an ISFSI" in the last sentence of paragraph Cd) by adding at the end of the reference the words "located at a site other than a reactor site." As amended, the sentence continues to apply to licensing of an ISFSI located at a site other than a reactor site or licensing of the MRS. Thus, under the amendment, the Director, NMSS, will have delegated authority to issue a specific license for interim storage of spent fuel in an ISFSI at a reactor site. He/she is not required to seek the express authorization of the Commission to do so.

However, the Director's authority will 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 at a reactor site.

V. Environmental Impact: Categorical Exclusion The NRC has determined that this rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l) and (3). Therefore. neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

29 VI. Paperwork Reduction Act State1nent This 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.

VII. Regulatory Analysis The Nuclear Regulatory Commission ~s making 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 amendments 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 will authorize the Director to issue a license for interim storage of .spent fuel in an ISFSI at a reactor site without seeking express authorization from the Commission to do so. The costs of the amendments, in this regard, are likely to be less than the,costs of the current procedure since the amendments will reduce the layers of agency review. The foregoing discussion constitutes the regulatory analysis for this final rule.

VIII. Regulatory Flexibility Act Certification The final rule does not have a significant economic impact on a substantial number of small entities. The rule sets forth internal procedures of an administrative nature for issuance of licenses for ISFSis at reactor

30 sites. 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 final rule will not have a significant economic impact upon a substantial number of small entities.

IX. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 72.62, does not apply to this rule and that a backfit analysis is not required because these amendments do not 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 protect**on, 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. 552 and 553, the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Parts 2 and 72.

31 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 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, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), Ci),(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 lA 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 a,1d vec. 29, Pub. L.85-256,

12 71 StHt. 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*§ 2. 764, paragraphs (a), (b) and Cc) are revised to read as follows:

§ 2.764 Immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.

(a) Except as provided in paragraphs Cc) through (f) of this section. or as otherwise ordered by the Commission in special circumstances. an initial decision directing the issuance or amendment of a construction permit. a construction authorization. an operating license. or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI) at a reactor site 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§ 2.786 or upon its own motion.

(b) Except as provided in paragraphs (c) through (f) of this section. or as otherwise ordered by the Commission in special circumstances, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards. as appropriate. notwithstanding the filing or granting of a petition for review, shall issue a construction permit. a construction authorization, an operating license, or a license under 10 CFR Part 72 to

33 store spent fuel in an independent spent fuel storage installation (ISFSI) at a reactor site, or amendments thereto, authorized by an initial decision, within ten (10) days from the date of issuance of the decision.

(c) An initial decision directing the issuance of an initial license for the construction and operation of an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or 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 an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or a monitored retrievable storage installation (MRS) under 10 CFR Part 72 until expressly authorized to do so by the Commission.

PART 72 - LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

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

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. 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,

34 137, 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), Cd). 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. 145C~J. 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 Kand Lare 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 §72.46, paragraph Cd) is revised to read as follows:

§ 72.46 Public hearings.

Cd) If no request for a hearing or petition for leave to -*:1tervene is filed within the time prescribed in the notice of proposed action and opportunity for hearing, the Director, Office of Nuclear Material Safety and Safeguards or the Director's designee may take the proposed action, and thereafter shall promptly inform the appropriate State and local officials and publish a notice in the Federal Register of the action taken. In accordance with§ 2.764(c) of this chapter, the Director, Office of Nuclear Material Safety and Safeguards shall not issue an initial license for the construction

35 and operation of an ISFSI located at a site other than a reactor site or an MRS until expressly authorized to do so by the Commission.

Dated at Rockville, Maryland. thisdV~day of Ci?:~/ . 1995.

?; '

For the Nuclear Regulatory Commission.

JoWl'C. Hoyle .

Secretary of the Commission.

ENVIRONMENTAL COALITION ON NUCLEAR Dr. Judith Johnsrud, Director ~ ~ Averue, State Colleoe, Pa. 16803 814-237-3900 usN1/c ' (5 tt'F ~ j 1_-'-11o'_ ,

October 4, 1993

/ /

Secretary of the Commission *93 OCT 13 A11 :07 U.S. Nuclear Regulatory Commission RE: 58 FR 48004 Washington, D.C. 20555 If.!

Dear Madam or Sir:

The following comments are submitted on behalf of the Pennsylvania-based Environmental Coalition on Nuclear Power CECNP> in response to 58 FR 48004, "Proposed Rule: Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation CISFSI>; Site-Specific License to a Qualified Applicant."

The commenter represents ECNP on Pennsylvania's State Advisory Committee on "Low-Level" Radioactive Waste {but does not speak for the Committee or the Commonwealth). I have also recently participated, with other "relevant stake-holders," in the first of a scheduled series of closed door "dialogues" {not open to the public) on DOE's spent fuel management options. These meetings were sponsored by the Nuclear Waste Programs Office of the National Association of Regulatory Utility Commissioners, presumably as part of their cooperative agreement with DOE and at the request of the Secretary to report recommenda-tions relating to the interim storage of highly radioactive spent fuel.

I have just returned this weekend from extended travel to find, belatedly, the notice of extension of comment period on this related topic. While we greatly appreciate the NRC's extension of the time tor comment on this rule, I do want to mention that often NRC notices of meetings and comment deadlines arrive in citizens' mailboxes at or after the date of an event or due date tor comment. In this instance, having been away, I respectfully request that these comments be given consideration by the Staff. I want to suggest that the provision of a fax number in NRC's FR notices {as we understand has been done for the Commission's Enhanced Rulemaking on Residual Radioactivity> might facilitate response for those members of the public for whom timely access to NRC announcements is difficult or limited.

Comment on Summary and Background Discussion:

The NRC proposes to eliminate a requirement for Commission authorization tor issuance at a site-specific license tor a renewable (hence undefined) interim period of ISFSI storage of highly-irradiated spent reactor fuel,

• The ahanse is described . as "administrative in nature" and, it is claimed, would not affect the scope at NRC review or change opportunity for public hearing.

We recommend against this change in authorization requirement. Highly irradiated "spent" reactor fuel is perhaps the most dangerous consequence at the uses at nuclear energy, short of all-out nuclear war and catastrophic reactor accidents. Its management and control are not a trivial responsibility to be shunted off to some faceless bureaucratic civil servant, The "special exception" to the Commission's general practice of delegating full authority for license issuance, which is found at 10 CFR 2.764(c) and 72.46Cd>, is among the Commission's wisely conservative regulations, with the authority -- and the responsibility -- clearly lodged with those in charge. It should be retained.

This is particularly so because spent fuel management is approaching a stage A MAY 1 D 1994 1 cknowledged by card .. ,,, m*ncscsnu,,. ..,_

deemed tta crisistt by the generators, viz., the 1998 contractual deadline tor DOE to begin accepting ttoldest fuel firsttt ttspenttt reactor fuel from licensees.

At this time, DOE has no permanent high-level waste repository and nowhere tor spent fuel to be stored. Various proposals currently in consideration include onsite pool or dry cask storage for a projected 140 years (as at the Palisades reactor>; DOE weapons facility sites or DOD decommissioned military bases; a yet-to-be-found, built, and licensed MRS site; the Yucca Mountain site or Nevada Test Site. Or, if a Mobile Universal Cask System or Multi-Purpose Cask or Canister is used, we may find ourselves with a spent fuel equivalent of the infamous garbage barge or the much ridiculed but sinister MX on rails circling round and round. High-level waste without a home: a haunting image of a lethal shadow menacing the future, with no final grave.

No matter how excellent staff review, or trustworthy the discretion of a Director of Nuclear Material Safety and Safeguards <NMSS), for a matter this important the final decision to authorize issuance of an initial license for construction and operation of spent fuel storage (whether ISFSI, MRS, or other form) should reside with the Commissioners themselves, as does the issuance of a license to operate a reactor. This approach is consistent with NRC's long-standing regulatory philosophy of redundancy of safeguards (in decision-making in this instance) and defense in depth (of the decision process).

As ttspenttt fuel pools continue to fill up for so long as reactors continue to operate, there will be more and more such decisions to be taken. Commission-ers will increasingly need to exercise a careful supervisory control over this licensing process rather than abandon it to an underling. Rather than regard-ing this requirement as ttan additional, unnecessary layer of agency reviewtt <at 31479, column 1), the NRC should specifically retain and strengthen it, especi-ally as quantities of highly irradiated fuel increase. To do otherwise is an arbitrary, indeed capricious, relinquishing of the Commission's responsibility to safeguard the public's health and safety and quality of the environment.

The argument of financial savings for the agency and its licensees is offensive when applied to safety-related review and the power to authorize action that may adversely affect public health and safety. If the proposed change is adopted but the scope and quality of staff review and NMSS approval later prove to be faulty, the consequences of a failure of an interim spent fuel storage facility could be devastating, far outweighing any putative savings for the Commission and its licensees in the short run.

Certainly the history of bureaucratic decision-making by the NRC staff has been replete with instances of abuse of authority. At least the Commissioners, although they come and go, are not faceless bureaucrats and may more readily be held accountable for the actions of the Commission during their tenure.

Comment on Role of NRC Hearing Process:

As for the ability of members of the affected public to obtain a hearing before this agency's administrative law judges and hearing panels, recent changes in the NRC's Rules of Practice that curtail capability to participate in a licensing proceeding, as well as provisions of the 1992 Energy Policy Act,

militate against any truly effective participation by intervenors that will affect the outcome of a proceeding. In the history of NRC reactor licensing and license amendment proceedings, there are few instances in which intervenors have prevailed on substantive issues. But the promises of thorough staff review and public hearings are shallow indeed for those of us who have experienced firsthand the shortcomings of NRC license proceedings.

We note, too, that the wording (at 31479, column 2) merely suggests that potentially affected persons, as defined by the NRC, have "a right to request a hearing" but it doesn't guarantee that they will get one. Nor are many individuals or other entities financially capable of marshalling the resources necessary to put on a full-scale intervention sufficient to prevail on the merits. NRC proceedings virtually define the term "an exercise in futility."

When we read Cat 31479, column 3) of "notice of docketing," "comprehensive technical review," and "all relevant health and safety matters," this commenter recalls those exact terms applied to the Three Mile Island, Unit 2, operating license application -- and the gross defects of the safety review that failed to identify the complex system breakdowns and sequence of "highly improbable events" that led to the March 28, 1979, accident. We can anticipate that, in ISFSI approval, the arrogance of engineers will again prevail with assurances that failure modes are too improbable to be considered credible and hence will be disallowed from public scrutiny, even if there is a public hearing.

Language has significance, and we find Cat 31479, column 3) the use of qualifiers (such as the word "may" rather than a mandatory "shall") that bode ill for public protection from regulatory failures. Moreover, an Environmental Assessment is not an Environmental Impact Statement; it may be less costly but is also less complete, will almost inevitably be accompanied by a Finding of No Significant Impact, and will carry a lesser weight in law. For spent fuel storage, a full EIS is essential and should not be categorically excluded.

Comment on NRC Regulatory Relaxation and other issues:

Some of us avoid unpleasant events in our lives by the exercise of simple prudence. Prudence is the least we should be able to expect from the heads of an agency that bears so awesome a responsibility. Adoption of extra, not fewer, measures of conservatism is what we should be able to expect of the Commission.

This proposed rule change is yet another of NRC's relaxations of its regulatory requirements deemed to be marginal to safety. But there is nothing about highly irradiated "spent" nuclear fuel to justify any but the absolutely most restrictive regulatory stance that the Commission can devise. The Commission must take into consideration here the impacts of its intent to eliminate regulatory requirements marginal to safety (including but not limited to plant physical protection, quality assurance, emergency response planning, environmental qualification of electrical equipment, fire protection, access to restricted areas, sabotage and terrorist attacks, and radiation protection).

The accumulation of spent fuel in storage facilities that have not with-stood the test of time (or any real test of their competency under adverse or even normal conditions) creates an extremely significant hazard in the vicinity

of all nuclear power facilities where the irradiated fuel may be stored. Long after a reactor has ceased operation, been decommissioned, and perhaps even dismantled and removed from a site, there is reasonably high probability that the "spent" fuel -- long-lived high-level radioactive waste -- stored in an onsite or near-site ISFSI will remain there far into the future for Jack of another place to put it, or the money to move it there. or for the inability to remove it safely from an inadequately designed and tested "interim" storage facility.

Who will hold title and possession? Who will pay for failures, future decontamination, and injury to persons or property? How long is "temporary" storage, and what assurance has NRC now of availability of any permanent "disposal" facility in the foreseeable? If no reactor is operating or present at a site, how does NRC hold responsible the nuclear utility to whom an operating license had been issued? If a licensee should decide, under the terms of a DOE contract, to turn over its "spent" fuel to DOE -- and the reactor site land on which it sits -- how will the Commission determine future issues of title, possession, and liability associated with an ISFSI? As the Commission divests itself of regulatory responsibilities (and costs> that are thrown upon the states, what assurances has the NRC that "spent" fuel will continue to be safely isolated at an ISFSI?

An ISFSI may end up being as permanent a facility as an MRS or even as a geologic repository; it should be licensed no Jess rigorously and restrictively than a reactor or any other type of waste storage or disposal.

Our conclusion: NRC must strengthen, not weaken, all aspects of ISFSI regulation, must produce a full EIS on each case, and must guarantee public adjudicatory hearings and alter its licensing rules of practice to provide for full and fair adjudicatory proceedings in which all "spent" fuel issues are subject to examination by all parties. Any less than the most rigorously protective rules regulating the management, storage, and "disposal" of highly irradiated "spent" nuclear reactor fuel will be an agency action that qualifies as arbitrary, irresponsible, capricious, and contrary to Jaw and Congressional intent to protect health, safety and the environment under the Atomic Energy Act of 1954 as amended, National Environmental Policy Act of 1969, Energy Reorganization Act of 1974, Resource Conservation and Recovery Act of 1976, and Clean Air Act of 1990.

Sincerely,

/µd/'/h ,LI/~~

Judith H. Johnsrud, Ph.D.

Director, ECNP

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• 93 OCT - 5 A9 :39 Nuclear Information and Resour.ce service 1424 16th Street, N.W., Suite 601, Washington, D.C. 20036 (202) 328-0002 Comments on NRC Proposed Rule: Parts 2 and 72 Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation; Site Specific License to a Qualified Applicant Federal Register Notice Thurs. June 3, 1993, (extended) FR58:No 105 pg 31478--81.

Submitted by Mary Olson, NIRS Radioactive Waste Project September 30, 1993 We appreciate the extension of time and the opportunity to comment. Both the proposed rule and the comment extension notice take the position that because the proposed change is primarily administrative, it has no impact. We would like to preface the following comment with the statement that it is exactly the administration of Commission policy and rules that has impact upon the role which the public has or does not have, in regulatory decisions, including licensing.

The discussion of the proposed rule change states that since 1980 there have been only two exceptions to an otherwise uniform situation where of the Director of Nuclear Material Safety and Safeguards grants licenses, other than nuclear power plants. These exceptions have been for Independent Spent Fuel Storage Installations (ISFSI), and Monitored Retrievable Storage (MRS) facilities, thus the Commission itself gave approval for these licenses. The current proposal would remove the exception for the site-specific ISFSI, while retaining it for the MRS licensing process.

In our view, this so-called administrative simplification is not appropriate given the NRC's job to protect public health and safety. A single fuel pool with a cumulative load of discharged irradiated fuel contains as many times more radioactivity than the operating reactor core does on any one day. This cumulative total of the highly concentrated radipactivity in irradiated fuel should be the Commission's PRIMARY CONCERN. To reprioritize this responsibility for oversight to the same level as the licensing of a medical lab or a nuclear laundry is a mistake. In fact, in our view, greater care, attention and stringency should be given to ANY accumulation of irradiated fuel--even from only a single operating unit, than is given to the licensing of the reactor itself. The ongoing potential for release of radioactivity is greater.

In addition, the prospect that these facilities could be licensed under the Agreement State Program is deeply disturbing. Recent revelations by a Congressional Hearing held by Representative Synar of Oklahoma in the p... .. - . .-. all into question the competence of the state 1978 ' * - 1993

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programs to handle licenses such as for medical labs, let alone large percentages of the androgenic radioactivity which must be stewarded for the rest of meaningful time.

Given the current situation where prospects for a viable "disposal solution" are remote, any place that radioactive waste is put cannot be credibly dubbed "temporary." It is as likely that this material will stay there, as go somewhere else. Therefore we believe that the Commission should apply the same stringency in siting a so-called temporary storage facility as is accorded to a permanent repository.

The fact that the proposed rule applies only to site-specific ISFSI is indicative of the dependent nature of the generic dry-cask licenses upon the operating license of a nuclear power plant 1* At this point the only prospect for an application for a site-specific ISFSI which makes sense to this reviewer would fall into one of three categories:

1) A reactor site that for some reason decided to innovate and order a cask that was not generically approved under the generic at-reactor dry cask rule. 2) A non-reactor site that is not DOE operated, or 3) a non-reactor, non-MRS, DOE site.

It should be noted that both 2 and 3 could apply to the situation of a site that was formerly a reactor site, but the reactor is no longer operating and the former licensee is relieved of their licenses. This is then a non-reactor site. Without the operating or possession licenses of the reactor, the generic general dry cask license does not apply. The only distinction between a site-specific ISFSI and an MRS would be found in the definitions in the beginning of Part 72:

ISFSI: "complex designed and constructed for the interim storage of spent nuclear fuel and other radioactive materials associated with spent fuel storage." MRS: "a complex designed, constructed, and operated by DOE for the receipt, transfer, handling, packaging, possession, safe guarding, and storage of spent nuclear fuel aged for at least one year and solidified high-level The following cites show the dependence of the generic dry cask rule on the operation of a reactor at the site: 10 CFR 72 Subpart K--General License for Storage of Spent Fuel at Power Reactor Sites. The title specifies: "at Power Reactor Sites." 72.210--Persons authorized to possess or operate nuclear power reactors under part 50. 10CFR72.218--application for termination of operating license "must contain a description of how the spent fuel stored under this general license will be removed from the reactor site."

10CFR72.212 Limits to fuel that the general licensee is authorized to possess at the site under the specific license for the site. Cites need to review tech specs and unresolved safety issues--50.59 Part 73--physical protection of plants and materials, physical security plan--

73.55--radiological sabotage, protection of vital equipment --protected area, restricted access, patrol, reactor emergency plan, quality assurance program, radiation protection program-- all areas where the fuel storage program must be integrated with and may depend upon the existing programs for the reactor operation.

waste resulting from civilian nuclear activities, pending shipment to a HL W repository or other disposal."

The key differences are that the MRS is defined as operated by DOE, is a site of potential processing and is linked to a permanent site: "pending shipment." It would seem that the ISFSI--which may be operated commercially or by DOE, of the two, has greater opportunity to be come a long-term "temporary" installation, and therefore should be very closely regulated.

If the decision is that the Commission's approval is meaningless, we will wonder at the reason that the exception is retained for the MRS licensing process, at the very least it insures public meetings and activities noticed in the Federal Register.

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 72 *93 SEP -8 P3 :35 RIN: 3150-AE64 Interim Storage of Spent Fuel in an *' l Independent Spent Fuel Storage Installation; Site-Specific License to a Qualified Applicant AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule; Extension of public comment period.

SUMMARY

On June 3, 1993 (58 FR 31478), the Nuclear Regulatory Commission (NRC) published for public comment a proposed rule to amend its procedures under which the Director of Nuclear Materials Safety and Safeguards can issue a site-specific license to a qualified applicant for the interim storage of spent fuel in an independent spent fuel storage installation (ISFSI) following satisfactory completion of NRC safety and environmental reviews and after any public hearing on the application. The comment period for this proposed rule was to have expired on August 17, 1993.

The Commission received a joint request from three organizations, requesting the Commission to extend the public comment period. The joint request states in pertinent part that

"[t]he proposed rule appears to make the opportunity for site-specific analysis and judicial review more remote than it

2 We and several organizations concerned about the trend toward long-term dry storage at reactors would like the opportunity to obtain a greater understanding of the proposed rule and its implications."

The Commission's intention underlying the proposed rule, as explained in the notice of proposed rulemaking, is to make procedural changes that are essentially administrative in nature; the proposed changes would not affect the scope of NRC site-specific reviews or change current public hearing opportunities.

Therefore, it would be of particular interest for NRC to understand fully the basis for public comments that appear to suggest (as indicated by the above-quoted comment) the proposed rule would actually do the contrary. Accordingly, the Commission finds that it is reasonable to extend the public comment period 45 days to October 1, 1993, in order to allow all interested

- persons adequate time fully to provide their views.

DATE: The comment period has been extended and now expires October 1, 1993. Comments received after this date will be considered if it is practical to do so, but the commission is able to ensure consideration only for comments received on or before this date.

3 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.

Dated at Rockville, Maryland, this .f...!-day of 1993.

lear Regulatory Commission.

ilk, the Commission.

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'fa to-w §I U.S. Council for Energy Awareness (f)

Swte400 1776 I Street, NW

..93 n,r; 24 P 4 :oo Washington, OC 2<XXJ6-2495 (202) 293-0770 Marvin S. Fertel Vice President Technical Programs 'I FAX (202) 785-4019

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(202) 785-4113 l

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 Applicant

Dear Mr. Chil.k.:

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 concerned 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. The 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 Commission could rule on a more complex MRS if required.

If you have any questions or would like clarification on our comments, please call Felix Killar or me.

Sincerely, cc: Felix Killar OCT 1 1993 A Kno I ged by card ...............""._"_"_..

LAKE MICHIGAN FEDERATION~6~61~~~~~;PR 2-J--71

(§EJ f yZ_ 3 lL/78-j Fl!li\RD Janws D. l;riffith August 16, 1993 1

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• 93 AUG ~ P4 :11 First Vic<> Presid ent Courtney Van Lopik Attention: Docketing and Licensing Branch St>cond Vice Pres ident John V. Farwell IV Treasurer Samuel Chilk Timothy H. Brown Secretary to the Commission St->cretary U.S. Nuclear Regulatory Commission Henry T. Chandler Past Prt>s ident Washington, D.C. 20555 LeP Botts Jand S. Boyd Re: Proposed Rule Ramona ( 'raig Paul Culha,w, Ph.D. 10 CFR Parts 2 and 72

• s*

Kae Donlevy Kath leen M. Evans Finklwint>r hnston Mic ael Kraft , Ph.D.

Robert Kueny

Dear Secretary Chilk:

Frank Lahr Lin da L Long Di>a11 S. McNeil The Nuclear Regulatory Commission (NRC) is proposing to amend its procedures T homas J Murphy. Ph.D. under which the Director of Nuclear Materials Safety and Safeguards (NMSS) can Frank Nesbitt, Jr.

Jone NoyPs issue a site-specific license for interim storage of spent fuel in an independent El len Partridge Charl es Il. Purter spent fuel storage installation (ISFSI). The amendment would eliminate the Milan Racic Jame Schaefer requirement of express Commission authorization before issuance by the Director Cam ille Stauber of NMSS of each initial license for interim storage of spent fuel in an ISFSI (but STAFF not for a monitored retrievable storge installation (MRS)).

Glenda I.. Daniel ExPc utive Director Sophia H. Twichell The Lake Michigan Federation, a four- state, non-profit environmental Assista nt Director and organization focusing on Lake Michigan protection, opposes this proposed rule.

Oevelopnwnt Assoc iate Andrew J. Comai E

. s Program Spec iali st

• K. Roemer The NRC characterizes this rule change as an administrative amendment which

• ~ttorney would have no effect on the scope of NRC review of an ISFSI license application Kathlee n M. Bero Southeast Wisconsin Director nor change the present opportunity for public hearing provided in NRC's rules.

Daniel E. Burke Assis tant Director.

The Lake Michigan Federation respectfully disagrees. The proposed revision Sou th eas t Wiscc,nsin impacts much more than administrative internal agency procedures.

Brun* N. .l nh11so n Northt->ns t V./iscon sin Direct or Tanya Cabala Michigan Director 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.

Citizen Action to Save a The express Commission authorization provides the public with more opportunity 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 current rule, would be eliminated.

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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 terms 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.

&~/.~

Glenda L. Daniel Executive Director L

Bruce ohns Director,

AUG-17-1993 16:29 FROM NIRS-WASHINGTON,DC TO 3015043200 P.01 DOCKET NUMBER PROPOSED RULE Pft 2- J-- 12

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c. William Reamer, Stuart Treby Otfice of Gener~l Cuwi~el US NRC Washington, DC 20555 fax# 301-504-3200 This is a brief comment on and raqueat for a JO to 60-day extension en the comment period tor the Proposed Rule on Interim Storage of Spent Fuel in an Independent Spent Puel Storage Installation; Site Specific License to a Qualified Applicant 58 FR 105:31476 June 3, 1993.

The proposed rule appears to make the opportunity for site-specific analysis and judicial review more remote than it now is. We and several organizations concerned about the trend toward long-term 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 hd.vnlM In n .( ;IIUM fl/)tt.-tau.r.l,.n.r P.ftD'tfV tmlir.v.

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-B§- TRANSNUCLEAR, INC.

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.

Transnuclear also agrees with the proposal to retain the need for the Commission's 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.

OCT 1 1993 Acknowledged by card ...................'"__..,,

TWO SKYLINE DRIVE* HAWTHORNE, NEW YORK 10532-2120 TELEPHONE: 914-347-2345

• FAX: 914-347-2346

• TELEX: 681-8082

S t~L!G 1 f . ~- ' f/il.il..faTf:!:Y COMMISSIOl'f DOC\ 1:i *' ~, S:!,',,1..-'~ ~~GTION OH;('. Ci !,:~ ~!'.(,' ::TARY U- ~-bi:: ~Ct,l\.it:-:'.ON

August 17, 1993 Page Two 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 Kand L of 10CFR Part 72.

Sincerely, A-~ <;If~

Alan S. Hanson President ASH:laz NRC.ltr

70 1 Pennsylvania Avenue, NW Washington D.C. 20004-2696 Tel ephone 202-508-5000

• 93 AUG 17 P12 :02 DH EDISON ELECTRIC INSTITUTE 60th Anniversary 1 g J J -1 g g J 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 License to a Qualified Applicant," 58 Fed. Reg. 31,478 (June 3. 1993)

Dear Mr. Chilk:

The Edison Electric Institute (EEi) and its Utility Nuclear Waste and Transportation Program (EEI/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 License to a Qualified Applicant."

EEi is the association of the nation's investor-owned utilities. Its members generate approximately 78% of the nation's electricity. EEI/UWASTE is a separately funded activity within EEi and represents the vast majority of electric utilities with nuclear energy programs. EEI/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.

OCT 1 1993 Acknowledged by card ..................................

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Mr. Samuel J. Chilk August 16, 1993 Page 2 EEI/UWASTE strongly supports the proposed rule. Given the proven safety and reliability of ISFSls, it is appropriate that NRC licensing procedures be no more rigorous than those employed for other types of materials licenses. Moreover, deletion of unnecessary licensing procedures for ISFSls 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.

If you have any questions concerning our comments, please do not hesitate to contact us.

Sincerely, S~ ~ ~.L._.L/t~_j _

Director, Nuclear Waste and Transportation SPK/ctf Enclosure

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 License to a Qualified Applicant" 58 Fed. Reg. 31,478 (June 3, 1993)

Provided below are the comments of the Edison Electric Institute (EEi) and its Utility Nuclear Waste and Transportation Program (EEI/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 License to a Qualified Applicant."

EEi is the association of the nation's investor-owned utilities. Its members generate approximately 78% of the nation's electricity. EEI/UWASTE is a separately funded activity within EEi and represents the vast majority of electric utilities with nuclear energy programs. EEI/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.

I. Comments on the Proposed Rule EEI/UWASTE strongly supports the proposed rule.

The proposed rule would eliminate mandatory full Commission review and express Commission authorization required by 10 CFR §§ 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 ISFSls, we agree that mandatory Commission review of site-specific ISFSI licenses is an unnecessary 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-gressional intent 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 at the site of each civilian nuclear power reactor. 111 The proposed rule also supports the 1

Nuclear Waste Policy Act of 1982 § 131(a)(2), 42 U.S.C. § 10151(a)(2) (1988).

purpose of NWPA § 133, which is to "assist and encourage the development . . . of alternate interim spent fuel storage technologies at each reactor site. 2 Such technologies were defined specifically to include dry spent fuel storage techniques. 3 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. 4 Similar extensive testing and experience in other countries reinforces the U.S. conclusion that dry storage technologies are extremely safe and reliable. 5 Growing experience with safe storage of spent fuel at ISFSls 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 o.feration, they can be expected to function with an extremely low probability of incident.

The proposed rule retains site-specific licensing for ISFSls 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.

2

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

3 Id. at 81-82.

4 U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory Research, NUREG-1092, Environmental Assessment for 10 CFR Part 72. "Licensing Requirements for the Independent Storage of Spent Fuel and High-Level Radioactive Waste 11-3 (1984).

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

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

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

7 Congress of the United States, Office of Technology Assessment, Managing the Nation's Commercial High-Level Radioactive Waste 59 (1985).

Ill.Conclusion The proposed rule supports the NRC's objective of eliminating unnecessary procedural rules which do not contribute to increased safety or efficiency. 8 EEI/UWASTE urges the NRG to adopt the proposed rule eliminating mandatory Commission review of ISFSI licenses for interim storage of spent fuel.

8 See Reducing the Regulatory Burden on Nuclear Licensees, 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}.

D CKET NUMBER ROPOSED RULE PR :2-d-72 16 N. Carroll St.. Suite 300 c)rFR 31'-l1 rJ Madison. WI 53703 (600) 251 -3322 CITIZENS' UTILITY BOARD "93 August 16, 1993 Samuel Chilk, Secretary to the Commission 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 The Commission's two major arguments in support of its proposal to eliminate the need for Commission authorization for each ISFSI license fail badly in being persuasive, since the subject of the Commission's attention in this proposed amendment to its rules is nothing less than what Ivan Selin has categorized as the "sword of Damocles" - nuclear waste.

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 view of the nuclear industry and compliant bureaucrats, but it is clearly not the view of the public that is being forced to directly concern itself with the safety, health, environmental and ethical issues which exist because of the inability of a monopolistic industry and government to solve the radioactive waste management problem.

The public of the midwest calls for more Commission oversight of the siting of radioactive waste storage facilities - not less.

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 OCT 1 1993 .

Acknowledged by card, ...............................

.S. 1 CLE~ll R*"GUI. ORY COMM!SSIOI\

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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 increase 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 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 9 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

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 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 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.

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,"

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.

Sincerely, 6~~

Research Director

DOGKET NUMBER PROPOSED RULE PR :;.._ tf- 7 2..

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Department of Energy Washington, DC 20585 AUG l ~ 1993

• 93 A'G 16 A10 :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 comment on June 3, 1993, (58 FR 31478) with the comment below.

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

"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 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 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-term 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.

OCT 115m Acknowledged by card ..................................

7

2 If you have any questions, please call Priscilla Bunton at (202) 586-8365.

Sincerely, l

Dwight . Shelor Associate Director for Systems and Compliance Office of Civilian Radioactive Waste Management cc:

C. Haughney, NRC

e Commonwealth Edison 1400 Opus Place Downers Grove, Illinois 60515 oo:.i*:~r NL'!:1SER Pt1OPOSED RULE

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August 9, 1993 PR  ::i- tr 1

• 93 AUG 13 A10:14 Mr. Samuel J. Chilk, Secretary U. S. Nuclear Regulatory Commission F'° l-- : ~ *  ; ~ .. V { , i; r( ' ~

Washington D. C. 20555 [hiCl"i  !"4~ ,  ; ,, VICf l"', M **

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,

~!h~ Strategic Licensing Policies & Issues h:wpclocs:rulecoml:1 oc, 1 1993 knowledged by card ..................................

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• 93 JUL 27 P4 :07 Samuel Chill<, Secretary to the Commission ,_ rr ,, . . r US Nuclear Regulatory Commission Washington DC 20555

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Attn: Docketing and Licensing Branch

Dear Mr. Chilk:

On July 5, the NRC announced a pr~posed rulemaking that would delimit the agency's control over at-reactor projects for dry storage of spent fuel, reducing 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 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.

1. Growing Public Opposition This position to the contrary, a growing public community has come to see reactor spent fuel storage as one of the greatest threats anywhere on the nation's environmental horizon. Already hundreds of state officials and citizen intervenors have been angered by the NRC's steadfast refusal to open its doors to public participation on this supremely important issue. Two years ago, over 60 Michigan citizens were refused in their request for public hearings on the Palisades ISFSI. Since then, the level of public opposition to this project has been 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.

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 Environmental Affairs Committee of the Maryland Senate, echoed long-standing requests for hearings on the Calvert Cliffs ISFSI. In a few more months, the 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 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 contents in the Three Mile Island Unit 2 pressure vessel, the unrelieved capacity OCT 1 1993 Acknowledged by card .._,,1111111NmN-*11u

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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.

During this recent startup period for ISFSI projects, the nuclear industry has been 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 appearance of a declaration of an open season for ISFSI projects. This wholesale 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.

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, radiation, and pressure limits after only a few years of pilot testing. Palisades 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.

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 engineering. Not the least of the authors' concerns is the likelihood that dry storage will represent a serious negative contribution to the long-term goals of spent fuel management:

The dry environment has the potential of producing such problems as further 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. 4-11)

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 "inadequately addressed in current source-term models."

To cite only one other problem raised by these authors, we are aware of the ongoing trend towards the use of higher-enriched, higher-burnup fuels which 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 presents alarming evidence that cesium-134 and europium-154 activity in fuel 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 growth rates in spent fuel problems all the way down the line to an ultimate repository as a result of ongoing trends in industry operations. Potential public-sector costs deriving from these trends are ominous.

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.

~~~xly, Kemp Houck Editor copies to: Sen. Paul Wellstone Sen. Paul Sarbanes Rep. Howard Wolpe Dennis Dums, Wisconsin CUB Counsel

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

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 72

• 93 MAY 27 P3 :42 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 site-specific license to a qualified applicant for the interim storage of spent fuel in an independent spent fuel storage installation (ISFSI) following satisfactory completion of NRC safety and environmental reviews and after any public hearing on the application. The proposed amendment is administrative in nature and would eliminate the need for express Commission authorization for each ISFSI license, but would not affect the scope of NRC review of an ISFSI license application or change the present opportunity for public hearing provided for in the NRC's rules of practice.

DATE:

J-1 11 /1 3 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. 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

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 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 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.

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.

Under the Energy Reorganization Act of 1974 {42 U.S.C. 5801, e 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 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 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 e 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 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

6 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 4t will continue to carry out licensing of the interim storage of spent fuel in an ISFSI under Commission supervision and direction. Specifically, under existing NRC procedures that would be unchanged by this rulemaking, the NRC staff is required to keep the Commission fully and currently informed about proposed significant licensing actions (which would include issuance by the Director, NMSS of a specific ISFSI license), and is also required to bring any significant question of policy to the Commission for resolution. These internal mechanisms, which the Commission is not proposing to change, ensure that every

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 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 person whose interest may be affected may file a request for a hearing or a petition for leave to intervene. Potentially affected persons and entities have a right to obtain all relevant NRC staff safety documents, as well as all technical submissions of the license applicant. 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

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

2. 7 64 (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.

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 require further submittals from the applicant as necessary to complete the ISFSI application, will thoroughly review all of the applicant's supporting technical information, and will independently verify the applicant's safety analyses and design calculations if necessary. To document its review and conclusions, the NRC staff will prepare a comprehensive safety evaluation report (SER) detailing its safety findings and conclusions, as well as an environmental assessment (EA) for the

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 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 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.

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

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 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

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 e 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 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,

• 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,

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 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,

17 186, 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 lA 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§ 2.764, paragraphs (a), (b) and (c) are revised to read as follows:

§ 2.764 Immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.

18 (a) Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special circumstances, an initial decision directing the issuance or amendment of a construction permit, a construction authorization, an operating license, or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI) shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown by a party why the initial decision should not become immediately effective, subject to review thereof and further decision by the Commission upon petition for review filed by any party pursuant to§ 2.786 or upon its own motion.

(b} Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special circumstances, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, notwithstanding the filing or granting of a petition for review, shall issue a construction permit, a construction authorization, an operating license, or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI), or amendments thereto, authorized by an initial decision, within ten (10} days from the date of issuance of the decision.

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 SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

3. The authority citation for Part 72 continues to read as e 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.

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, 2222, 2224 (42 u.s.c. 10101, 10137(a), 10161(h)). Subparts Kand Lare 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 §72.46, paragraph (d) is revised to read as follows:

§ 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

21 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 Register of the action taken. In accordance with§ 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.

r,r,.

Dated at Rockville, Maryland, this _ _ day of _M_a_y_ _ _ _ ,

1993.

the Nuc Regulatory Commission.

k,

~

he Commission.