NRC-2007-0019, FRN the Attorney General of Commonwealth of Massachusetts, the Attorney General of California; Denial of Petitions for Rulemaking

FRN the Attorney General of Commonwealth of Massachusetts, the Attorney General of California; Denial of Petitions for Rulemaking

ML111220354
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Issue date:	08/08/2008
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ML111220353	List: ML111220354 NRC-2007-0019, FRN the Attorney General of Commonwealth of Massachusetts, the Attorney General of California; Denial of Petitions for Rulemaking
References
RAS 20081, 50-293-LR, ASLBP 06-848-02-LR, NRC-2007-0019, PRM-51-10, PRM-51-12
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Text

This section of the FEDERAL REGISTER contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.Proposed Rules Federal Register 46204 Vol. 73, No. 154 Friday, August 8, 2008 NUCLEAR REGULATORY COMMISSION 10 CFR Part 51

[Docket No. PRM-51-10, NRC-2006-0022 and Docket No. PRM-51-12, NRC-2007-

0019] The Attorney General of

Commonwealth of Massachusetts, The

Attorney General of California; Denial

of Petitions for Rulemaking AGENCY: Nuclear Regulatory Commission (NRC).

ACTION: Petition for rulemaking; denial.

SUMMARY

The NRC is denying two petitions for rulemaking (PRM), one

filed by the Attorney General of the

Commonwealth of Massachusetts (Massachusetts AG) and the other filed

by the Attorney General for the State of

California (California AG), presenting

nearly identical issues and requests for

rulemaking concerning the

environmental impacts of the high-

density storage of spent nuclear fuel in

large water pools, known as spent fuel

pools (SFPs). The Petitioners asserted

that new and significant information

shows that the NRC incorrectly characterized the environmental

impacts of high-density spent fuel

storage as insignificant in its National

Environmental Policy Act (NEPA)

generic environmental impact statement (EIS) for the renewal of nuclear power

plant licenses. Specifically, the

Petitioners asserted that spent fuel

stored in high-density SFPs is more

vulnerable to a zirconium fire than the

NRC concluded in its NEPA analysis.

ADDRESSES: You can access publicly available documents related to these

petitions for rulemaking using the

following methods:

Federal e-Rulemaking Portal:

Go to http://www.regulations.gov and search for documents filed under Docket ID

[NRC-2006-0022] (PRM-51-10), and

[NRC-2007-0019] (PRM-51-12).

NRC's Public Document Room (PDR):

The public may examine and have

copied for a fee publicly available documents at the NRC's PDR, Public File Area O1 F21, One White Flint

North, 11555 Rockville Pike, Rockville, Maryland.

NRC's Agencywide Documents Access and Management System (ADAMS):

Publicly available documents created or

received at the NRC are available

electronically at the NRC's electronic

Reading Room at http://www.nrc.gov/

reading-rm/adams.html.

From this page, the public can gain entry into ADAMS, which provides text and image files of

NRC's public documents. If you do not

have access to ADAMS or if there are

problems in accessing the documents

located in ADAMS, contact the NRC

PDR reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to

pdr.resource@nrc.gov. FORFURTHERINFORMATIONCONTACT

L. Mark Padovan, Office of Nuclear

Reactor Regulation, U.S. Nuclear

Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-

1423, e-mail Mark.Padovan@nrc.gov. SUPPLEMENTARYINFORMATION

I. Background II. Petitioners' Requests

III. Public Comments

IV. NEPA and NUREG-1437

V. Reasons for Denial-General A. Spent Fuel Pools

B. Physical Security

C. Very Low Risk VI. Reasons for Denial-NRC Responses to Petitioners' Assertions A. New and Significant Information

B. Spent Fuel Assemblies Will Burn if Uncovered

1. Heat Transfer Mechanisms

2. Partial Drain-Down

3. License Amendments

C. Fuel Will Burn Regardless of its Age

D. SFP Zirconium Fire Will Propagate

E. SFP Zirconium Fire May Be Catastrophic

1. Not New and Significant Information; Very Low Probability

2. Shearon Harris Atomic Safety and Licensing Board Panel (ASLBP)

Proceeding

3. SFP Zirconium Fire Does Not Qualify As a DBA F. Intentional Attack on a SFP is

Reasonably Foreseeable

1. NAS Report

2. Ninth Circuit Decision

G. SFP Zirconium Fire Should be Considered within the Analysis of

SAMAs VII. Denial of Petitions I. Background The NRC received two PRMs requesting that Title 10 of the Code of

Federal Regulations (10 CFR), Part 51, be amended. The Massachusetts AG

filed its petition on August 25, 2006 (docketed by the NRC as PRM-51-10).

The NRC published a notice of receipt

and request for public comment in the

Federal Register on November 1, 2006 (71 FR 64169). The California AG filed

its petition on March 16, 2007 (docketed

by the NRC as PRM-51-12). PRM

12 incorporates by reference the facts

and legal arguments set forth in PRM-

51-10. The NRC published a notice of

receipt and request for public comment

on PRM-51-12 in the Federal Register on May 14, 2007 (72 FR 27068). The

California AG filed an amended petition (treated by the NRC as a supplement to

PRM 51-12) on September 19, 2007, to

clarify its rulemaking request. The NRC

published a notice of receipt for the

supplemental petition in the Federal Register on November 14, 2007 (72 FR 64003). Because of the similarities of

PRM-51-10 and PRM-51-12, the NRC

evaluated the two petitions together.

The Petitioners asserted the following in their petitions:

1. New and significant information

shows that the NRC incorrectly

characterized the environmental

impacts of high-density spent fuel

storage as insignificant in the NRC's

NUREG-1437, Generic Environmental Impact Statement for License Renewal

of Nuclear Plants, May 1996.

Specifically, the Petitioners asserted

that an accident or a malicious act, such

as a terrorist attack, could result in an

SFP being drained, either partially or

completely, of its cooling water. The

Petitioners further asserted that this

drainage would then cause the stored

spent fuel assemblies to heat up and

then ignite, with the resulting zirconium

fire releasing a substantial amount of

radioactive material into the

environment.

2. The bases of the new and significant information are the

following:

a. NUREG-1738, Technical Study of the Spent Fuel Pool Accident Risk at

Decommissioning Nuclear Power Plants, January 2001

b. National Academy of Sciences Committee on the Safety and Security of

Commercial Spent Nuclear Fuel Storage, Safety and Security of Commercial VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00001Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46205 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules Spent Nuclear Fuel Storage (National Academies Press: 2006) (NAS Report)

c. Gordon R. Thompson, Risks and Risk-Reducing Options Associated with

Pool Storage of Spent Nuclear Fuel at

the Pilgrim and Vermont Yankee

Nuclear Power Plants, May 25, 2006 (Thompson Report)

3. Specifically, the Petitioners asserted that the

new and significant

information shows the following:

a. The fuel will burn if the water level in an SFP drops to the point where the

tops of the fuel assemblies are

uncovered (complete or partial water

loss resulting from SFP drainage being

caused by either an accident or terrorist

attack). b. The fuel will burn regardless of its age. c. The zirconium fire will propagate to other assemblies in the pool.

d. The zirconium fire may be catastrophic.

e. A severe accident caused by an intentional attack on a nuclear power

plant SFP is

reasonably foreseeable.

The Petitioners also asserted that new and significant information shows that

the radiological risk of a zirconium fire

in a high-density SFP at an operating

nuclear power plant can be comparable

to, or greater than, the risk of a core-

degradation event of non-malicious

origin (i.e., a

severe accident

) at the plant's reactor. Consequently, the Petitioners asserted that SFP fires must

be considered within the body of severe

accident mitigation alternatives (SAMAs). II. Petitioners' Requests PRM-51-10 requested that the NRC take the following actions:

1. Consider new and significant information showing that the NRC

's characterization of the environmental

impacts of spent fuel storage as

insignificant in NUREG

-1437 is incorrect.

2. Revoke the regulations which codify that incorrect conclusion and

excuse consideration of spent fuel

storage impacts in NEPA decision-

making documents, namely, 10 CFR

51.53(c)(2), 51.95(c) and Table B

-1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Power

Plants, of appendix B to subpart A of 10 CFR Part 51. Further, revoke 10 CFR

51.23(a) and (b), 51.30(b), 51.53, 51.61, and 51.80(b) to the extent that these

regulations find, imply, or assume that

environmental impacts of high-density

pool storage are insignificant, and

therefore need not be considered in any

plant-specific NEPA analysis.

3. Issue a generic determination that the environmental impacts of high-density pool storage of spent fuel are significant.

4. Require that any NRC licensing decision that approves high-density

pool storage of spent fuel at a nuclear

power plant, or any other facility, must

be accompanied by a plant-specific EIS

that addresses the environmental

impacts of high-density pool storage of

spent fuel at that nuclear plant and a

reasonable array of alternatives for

avoiding or mitigating those impacts.

5. Amend its regulations to require that SAMAs that must be discussed in

utility company environmental reports (ERs) and NRC supplemental EISs for

individual plants under 10 CFR

51.53(c)(3)(ii)(L) and Table B

-1 of appendix B to subpart A of 10 CFR part

51 (Postulated Accidents: Severe Accidents) must include alternatives to avoid, or mitigate, the impacts of high-

density pool zirconium fires.

PRM-51-12 incorporates by reference PRM-51-10. PRM-51-12 requested that the NRC take the following actions:

1. Rescind all NRC regulations found in 10 CFR part 51 that imply, find, or

determine that the potential

environmental effects of high-density

pool storage of spent nuclear fuel are

not significant for purposes of NEPA

and NEPA analysis.

2. Adopt, and issue, a generic determination that approval of such

storage at a nuclear power plant, or any

other facility, does constitute a major

federal action that may have a

significant effect on the human

environment.

3. Require that no NRC licensing decision that approves high-density

pool storage of spent nuclear fuel at a

nuclear power plant, or other storage

facility, may issue without the prior

adoption and certification of an EIS that

complies with NEPA in all respects, including full identification, analysis, and disclosure of the potential

environmental effects of such storage, including the potential for accidental or

deliberately caused release of

radioactive products to the

environment, whether by accident or

through acts of terrorism, as well as full

and adequate discussion of potential

mitigation for such effects, and full

discussion of an adequate array of

alternatives to the proposed storage

project. III. Public Comments The NRC's notice of receipt and request for public comment invited

interested persons to submit comments.

The comment period for PRM 51

-10 originally closed on January 16, 2007, but was extended through March 19, 2007. The public comment period for PRM 51-12 closed on July 30, 2007.

Accordingly, the NRC considered

comments received on both petitions

through the end of July 2007. The NRC

received 1,676 public comments, with

1,602 of these being nearly identical

form e-mail comments supporting the

petitions. Sixty-nine other comments

also support the petitions. These

comments were submitted by States, private organizations, and members of

the U.S. Congress. Two letters from the

Nuclear Energy Institute (NEI) oppose

the petitions, and three nuclear industry

comments endorse NEI

's comments.

In general, the comments supporting the petitions focused on the following

main elements of the petitions: NRC should evaluate the environmental impacts (large

radioactive releases and contamination

of vast areas) of severe accidents and

intentional attacks on high-density SFP

storage in its licensing decisions (NEPA

analysis). The 2006 decision of the United States Court of Appeals for the Ninth

Circuit, San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir.

2006), cert. denied 127 S. Ct. 1124 (2007), concluded that the NRC must

evaluate the environmental impacts of a

terrorist attack on SFP storage in its

licensing decisions. NRC's claim that the likelihood of a SFP zirconium fire is remote is

incorrect. Partial loss of water in an SFP

could lead to a zirconium fire and

release radioactivity to the environment. NRC's characterization of the environmental impacts of high-density

SFP storage as

insignificant

in NUREG-1437 is incorrect, and the NRC should revoke the regulations which

codify this. Any licensing decision approving high-density spent fuel storage should

have an EIS.

Comments opposing the petitions centered on the following: Petitioners failed to show that regulatory relief is needed to address

new and significant

information concerning the potential for spent fuel

zirconium fires in connection with high-

density SFP storage. None of the

documents that the Petitioners cited or

referenced satisfy the NRC

's standard for new and significant information. Petitioners failed to show that the Commission should rescind its Waste

Confidence decision codified at 10 CFR

51.23, or change its determination that

the environmental impacts of high-

density spent fuel storage are

insignificant. The Commission has recently affirmed its longstanding view that

NEPA demands no terrorism inquiry, VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00002Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46206 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 1 A note to Table B

-1 states that significance levels have not been assigned

for collective off site radiological impacts from the fuel cycle and from

high level waste and spent fuel disposal.

10 CFR part 51, subpart A, app. B, Table B

-1, n. 2. and that the NRC therefore need not consider the environmental

consequences of hypothetical terrorist

attacks on NRC-licensed facilities. The Commission

's rejection of the Ninth Circuit Court

's view is consistent with the U.S. Supreme Court

's position that NEPA should not be read to force

agencies to consider environmental

impacts for which they cannot

reasonably be held responsible.

Moreover, the NRC has, in fact, examined terrorism under NEPA and

found the impacts similar to the impacts

of already-analyzed, severe reactor

accidents.

The NRC reviewed and considered the comments in its decision to deny

both petitions, as discussed in the

following sections:

IV. NEPA and NUREG

-1437 The NRC's environmental protection regulations in 10 CFR Part 51 identify

renewal of a nuclear power plant

operating license as a major federal

action significantly affecting the quality

of the human environment. As such, an

EIS is required for a plant license

renewal review in accordance with the

NEPA. The Petitioners challenge

NUREG-1437, which generically assesses the significance of various

environmental impacts associated with the renewal of nuclear power plant

licenses. NUREG

-1437 summarizes the findings of a systematic inquiry into the

potential environmental consequences

of operating individual nuclear power

plants for an additional 20 years. The

findings of NUREG

-1437 are codified in Table B-1 of appendix B to subpart A of 10 CFR part 51.

The NUREG-1437 analysis identifies the attributes of the nuclear power

plants, such as major features and plant

systems, and the ways in which the

plants can affect the environment. The

analysis also identifies the possible

refurbishment activities and

modifications to maintenance and

operating procedures that might be

undertaken given the requirements of

the safety review as provided for in the

NRC's nuclear power plant license renewal regulations at 10 CFR part 54.

NUREG-1437 assigns one of three impact levels (small, moderate, or large)

to a given environmental resource (e.g.,

air, water, or soil). A small impact

means that the environmental effects are

not detectable, or are so minor that they

will neither destabilize, nor noticeably

alter, any important attribute of the

resource. A moderate impact means that

the environmental effects are sufficient

to alter noticeably, but not to

destabilize, important attributes of the

resource. A large impact means that the environmental effects are clearly noticeable, and are sufficient to

destabilize important attributes of the

resource.

In addition to determining the significance of environmental impacts

associated with license renewal, the

NRC determined whether the analysis in

NUREG-1437 for a given resource can be applied to all plants. Under the

NUREG-1437 analysis, impacts will be considered Category 1 or Category 2. A

Category 1 determination means that the

environmental impacts associated with

that resource are generic (i.e., the same)

for all plants. A Category 2

determination means that the

environmental impacts associated with

that resource cannot be generically

assessed, and must be assessed on a

plant-specific basis.

The NRC regulations at 10 CFR part 51, subpart A, appendix B, Table B

-1 and NUREG-1437 set forth three criteria for an issue to be classified as Category

1. The first criterion is that the

environmental impacts associated with

that resource have been determined to

apply to all plants. The second criterion

is that a single significance level (i.e.,

small, moderate, or large) has been

assigned to the impacts.

1 The third criterion is that the mitigation of any

adverse impacts associated with the

resource has been considered in

NUREG-1437 and further, it has been determined that additional plant-

specific mitigation measures are not

likely to be sufficiently beneficial to

warrant implementation. For Category 1

issues, the generic analysis may be

adopted in each plant-specific license

renewal review.

A Category 2 classification means that the NUREG-1437 analysis does not meet the criteria of Category 1. Thus, on

that particular environmental issue, additional plant-specific review is

required and must be analyzed by the

license renewal applicant in its ER.

For each license renewal application, the NRC will prepare a draft

supplemental EIS (SEIS) to analyze

those plant-specific (Category 2) issues.

Neither the SEIS nor the ER is required

to cover Category 1 issues. However, both are required to consider any new

and significant information for Category

1 or unidentified issues. The draft SEIS

is made available for public comment.

After considering public comments, the

NRC will prepare and issue the final

SEIS in accordance with 10 CFR 51.91

and 51.93. The final SEIS and NUREG

- 1437, together, serve as the requisite NEPA analysis for any given license

renewal application.

The NUREG-1437 analysis, as shown in Table B

-1 of appendix B to subpart A of 10 CFR part 51, found that the

environmental impact of the storage of

spent nuclear fuel, including high-

density storage, in SFPs, during any

plant refurbishment or plant operation

through the license renewal term, are of

a small significance level and meet all

Category 1 criteria. It is this finding that

the Petitioners challenge. After

reviewing the petitions and the public

comments received, the NRC has

determined that its findings in NUREG

- 1437 and in Table B

-1 remain valid, both for SFP accidents and for potential

terrorist attacks that could result in an

SFP zirconium fire.

V. Reasons for Denial

-General A. Spent Fuel Pools Spent nuclear fuel offloaded from a reactor is stored in a SFP. The SFPs at

all nuclear plants in the United States

are massive, extremely-robust structures

designed to safely contain the spent fuel

discharged from a nuclear reactor under

a variety of normal, off-normal, and

hypothetical accident conditions (e.g.,

loss of electrical power, floods, earthquakes, or tornadoes). SFPs are

made of thick, reinforced, concrete

walls and floors lined with welded, stainless-steel plates to form a leak-tight

barrier. Racks fitted in the SFPs store

the fuel assemblies in a controlled

configuration (i.e., so that the fuel is

both sub-critical and in a coolable

geometry). Redundant monitoring, cooling, and makeup-water systems are

provided. The spent fuel assemblies are

positioned in racks at the bottom of the

pool, and are typically covered by at

least 25 feet of water. SFPs are

essentially passive systems.

The water in the SFPs provides radiation shielding and spent fuel

assembly cooling. It also captures

radionuclides in case of fuel rod leaks.

The water in the pool is circulated

through heat exchangers for cooling.

Filters capture any radionuclides and

other contaminants that get into the

water. Makeup water can also be added

to the pool to replace water loss.

SFPs are located at reactor sites, typically within the fuel-handling (pressurized-water reactor) or reactor

building (boiling-water reactor). From a

structural point of view, nuclear power

plants are designed to protect against

external events such as tornadoes, hurricanes, fires, and floods. These

structural features, complemented by

the deployment of effective and visible VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00003Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46207 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 2 For additional related information, please see the NRC fact sheet

NRC Review of Paper on Reducing Hazards From Stored Spent Nuclear

Fuel, which is available on the NRC

's public Web site at: http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/reducing-hazards-spent-

fuel.html.

3 The DBT represents the largest threat against which a private sector facility can be reasonably

expected to defend with high assurance. The NRC

's DBT rule was published in the Federal Register on March 19, 2007 (72 FR 12705).

4 The American Society of Mechanical Engineers (ASME) Standard for Probabilistic Risk Assessment for Nuclear Power Plant Applications, ASME RA-S-2002, defines risk as the probability and consequences of an event, as expressed by the

risk triplet that is the answer to the following three questions: (1) What can go wrong? (2) How

likely is it? and (3) What are the consequences if

it occurs?

5 The Commission

's Safety Goals identified two quantitative objectives concerning mortality risks:

(1) The risk to an average individual in the vicinity

of a nuclear power plant of prompt fatalities that

might result from reactor accidents should not

exceed one-tenth of one percent (0.1 percent) of the

sum of prompt fatality risks resulting from other

accidents in which members of the U.S. population

are generally exposed; and (2) The risk to the

population in the area near a nuclear power plant

of cancer fatalities that might result from nuclear

power plant operation should not exceed one-tenth

of one percent (0.1 percent) of the sum of cancer

fatality risks resulting from all other causes.

6 Sandia National Laboratories, Mitigation of Spent Fuel Pool Loss-of-Coolant Inventory

Accidents and Extension of Reference Plant

Analyses to Other Spent Fuel Pools, Sandia Letter Report, Revision 2 (November 2006) incorporates

and summarizes the Sandia Studies. This document

is designated

Official Use Only

-Security Related Information.

A version of the Sandia Studies, with substantial redactions, was made public as a

response to a Freedom of Information Act request.

It is available on the NRC

's Agencywide Document Access and Management System (ADAMS). The

redacted version can be found under ADAMS

Accession No. ML062290362. For access to

ADAMS, contact the NRC Public Document Room

Reference staff at 1

-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov. For additional related information, please see the NRC fact sheet

NRC Review of Paper on Reducing Hazards From Stored Spent Nuclear Fuel, which is available on the NRC's public Web site at:

http://www.nrc.gov/

reading-rm/doc-collections/fact-sheets/reducing-

hazards-spent-fuel.html. physical security protection measures, are also deterrents to terrorist activities.

Additionally, the emergency procedures

and SAMA guidelines developed for

reactor accidents provide a means for

mitigating the potential consequences of

terrorist attacks.

B. Physical Security The Petitioners raise the possibility of a successful terrorist attack as increasing

the probability of an SFP zirconium fire.

As the NAS Report found, the

probability of terrorist attacks on SFPs

cannot be reliably assessed, quantitatively or comparatively. The

NRC has determined, however, that

security and mitigation measures the

NRC has imposed upon its licensees

since September 11, 2001, and national

anti-terrorist measures to prevent, for

example, aircraft hijackings, coupled

with the robust nature of SFPs, make the

probability of a successful terrorist

attack, though numerically

indeterminable, very low.

The NRC's regulations and security orders require licensees to develop

security and training plans for NRC

review and approval, implement

procedures for these plans, and to

periodically demonstrate proficiency

through tests and exercises.

2 In addition, reactor physical security

systems use a defense-in-depth concept, involving the following: Vehicle (external) barriers. Fences. Intrusion detection, alarm, and assessment systems. Internal barriers. Armed responders. Redundant alarm stations with command, control, and communications

systems. Local law enforcement authority

's response to a site and augmentation of

the on-site armed response force. Security and emergency-preparedness procedure development

and planning efforts with local officials. Security personnel training and qualification.

The NRC's regulatory approach for maintaining the safety and security of

power reactors, and thus SFPs, is based

upon robust designs that are coupled

with a strategic triad of preventive/

protective systems, mitigative systems, and emergency-preparedness and

response. Furthermore, each licensee

's security functions are integrated and coordinated with reactor operations and emergency response functions.

Licensees develop protective strategies

in order to meet the NRC design-basis

threat (DBT).

3 In addition, other Federal agencies such as the Federal Aviation Administration, the Federal Bureau of

Investigation, and the Department of

Homeland Security have taken

aggressive steps to prevent terrorist

attacks in the United States. Taken as a

whole, these systems, personnel, and

procedures provide reasonable

assurance that public health and safety, the environment, and the common

defense and security will be adequately

protected.

C. Very Low Risk Risk is defined as the probability of the occurrence of a given event

multiplied by the consequences of that

event.4 Studies conducted over the last three decades have consistently shown

that the probability of an accident

causing a zirconium fire in an SFP to be

lower than that for severe reactor

accidents. The risk of beyond design-

basis accidents (DBAs) in SFPs was first

examined as part of the landmark

Reactor Safety Study: An Assessment of

Accident Risks in U.S. Commercial

Nuclear Power Plants (WASH-1400, NUREG-75/014, 1975), and was found to be several orders of magnitude below

those involving the reactor core. The

risk of an SFP accident was re-examined

in the 1980

's as Generic Issue 82, Beyond Design Basis Accidents in Spent

Fuel Pools , in light of increased use of high-density storage racks and

laboratory studies that indicated the

possibility of zirconium fire propagation

between assemblies in an air-cooled

environment. The risk assessment and

cost-benefit analyses developed through

this effort, NUREG

-1353, Regulatory Analysis for the Resolution of Generic

Issue 82, Beyond Design Basis Accidents

in Spent Fuel Pools , Section 6.2, April 1989, concluded that the risk of a severe

accident in the SFP was low and

appear[s] to meet

the objectives of the Commission

's Safety Goals for the Operations of Nuclear Power Plants;

Policy Statement, (August 4, 1986; 51 FR 28044), as amended (August 21, 1986; 51 FR 30028), and that no new

regulatory requirements were

warranted.

5 SFP accident risk was re-assessed in the late 1990s to support a risk-informed

rulemaking for permanently shutdown, or decommissioned, nuclear power

plants. The study, NUREG

-1738, Technical Study of Spent Fuel Pool

Accident Risk at Decommissioning

Nuclear Power Plants , January 2001, conservatively assumed that if the water

level in the SFP dropped below the top

of the spent fuel, an SFP zirconium fire

involving all of the spent fuel would

occur, and thereby bounded those

conditions associated with air cooling of

the fuel (including partial-draindown

scenarios) and fire propagation. Even

when all events leading to the spent fuel

assemblies becoming partially or

completely uncovered were assumed to

result in an SFP zirconium fire, the

study found the risk of an SFP fire to be

low and well within the Commission

's Safety Goals.

Furthermore, significant additional analyses have been performed since

September 11, 2001, that support the

view that the risk of a successful

terrorist attack (i.e., one that results in

an SFP zirconium fire) is very low.

These analyses were conducted by the

Sandia National Laboratories and are

collectively referred to herein as the

Sandia studies.

6 The Sandia studies VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00004Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46208 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 7 NAS Report at 53.

are sensitive security related information and are not available to the

public. The Sandia studies considered

spent fuel loading patterns and other

aspects of a pressurized-water reactor

SFP and a boiling-water reactor SFP, including the role that the circulation of

air plays in the cooling of spent fuel.

The Sandia studies indicated that there

may be a significant amount of time

between the initiating event (i.e., the

event that causes the SFP water level to

drop) and the spent fuel assemblies

becoming partially or completely

uncovered. In addition, the Sandia

studies indicated that for those

hypothetical conditions where air

cooling may not be effective in

preventing a zirconium fire (i.e., the

partial drain down scenario cited by the

Petitioners), there is a significant

amount of time between the spent fuel

becoming uncovered and the possible

onset of such a zirconium fire, thereby

providing a substantial opportunity for

both operator and system event

mitigation.

The Sandia studies, which more fully account for relevant heat transfer and

fluid flow mechanisms, also indicated

that air-cooling of spent fuel would be

sufficient to prevent SFP zirconium fires

at a point much earlier following fuel

offload from the reactor than previously

considered (e.g., in NUREG

-1738). Thus, the fuel is more easily cooled, and

the likelihood of an SFP fire is therefore

reduced. Additional mitigation strategies implemented subsequent to September

11, 2001, enhance spent fuel coolability

and the potential to recover SFP water

level and cooling prior to a potential

SFP zirconium fire. The Sandia studies

also confirmed the effectiveness of

additional mitigation strategies to

maintain spent fuel cooling in the event

the pool is drained and its initial water

inventory is reduced or lost entirely.

Based on this more recent information, and the implementation of additional

strategies following September 11, 2001, the probability, and accordingly, the

risk, of a SFP zirconium fire initiation

is expected to be less than reported in

NUREG-1738 and previous studies.

Given the physical robustness of SFPs, the physical security measures, and SFP mitigation measures, and based

upon NRC site evaluations of every SFP in the United States, the NRC has

determined that the risk of an SFP

zirconium fire, whether caused by an

accident or a terrorist attack, is very

low. As such, the NRC

's generic findings in NUREG

-1437, as further reflected in Table B

-1 of appendix B to subpart A of 10 CFR part 51, remain

valid. VI. Reasons for Denial

-NRC Responses to Petitioners

' Assertions A. New and Significant Information The Petitioners asserted that new and significant information shows that the

NRC incorrectly characterized the

environmental impacts of spent fuel

storage as

insignificant.

The information relied upon by the

Petitioners, however, is neither

new nor significant, within the NRC

's definition of those terms. The NRC

defines these terms in its Supplement 1

to NRC Regulatory Guide 4.2, Preparation of Supplemental

Environmental Reports for Applications

to Renew Nuclear Power Plant

Operating Licenses , Chapter 5 (September 2000) (RG 4.2S1).

New and significant

information, which would require supplementing NUREG

-1437, is defined as follows:

(1) Information that identifies a significant environmental issue that was not considered

in NUREG-1437 and, consequently, not codified in Appendix B to Subpart A of 10

CFR Part 51, or (2) Information that was not considered in the analyses summarized in NUREG

-1437 and that leads to an impact finding different

from that codified in 10 CFR Part 51.

The Petitioners

' new and significant

information does not meet the RG 4.2S1 criteria. NUREG

-1437 (Sections 6.4.6.1. to 6.4.6.3.), and the

analyses cited therein, including the

NRC's Waste Confidence Rule

(September 18, 1990; 55 FR 38474, 38480-81), extensively considered the risk of SFP accidents. Moreover, to the

extent any information submitted by the

Petitioners was not considered in

NUREG-1437, none of the information is significant, because, as explained further in this document, it would not

lead to an impact finding different from that codified in 10 CFR Part 51, or as set forth in NUREG

-1437. B. Spent Fuel Assemblies Will Burn If Uncovered The Petitioners asserted that new and significant information, consisting

primarily of the Thompson Report, NUREG-1738, and a government-sponsored study, the NAS Report, show

that spent fuel will burn if the water

level in an SFP drops to the point where

the tops of the fuel assemblies are

uncovered. Specifically, the Petitioners

asserted that the NRC fails to recognize

the danger of a partial loss of water in

an SFP, which in the Petitioners

' view, is more likely to cause an SFP

zirconium fire than a complete loss of

water, because the remaining water will

block the circulating air that would otherwise act to cool the spent fuel assemblies.

The NRC does not agree with the Petitioners

' assertions. The NRC has determined that a zirconium cladding

fire does not occur when only the tops

of the fuel assemblies are uncovered. In

reality, a zirconium fire cannot occur

unless fuel uncovering is more

substantial. Even then, the occurrence of

a zirconium fire requires a number of

conditions which are extremely unlikely

to occur together. The Sandia studies

provide a more realistic assessment of

the coolability of spent fuel under a

range of conditions and a better

understanding of the actual safety

margins than was indicated in NUREG

- 1738. The Sandia studies have

consistently and conclusively shown

that the safety margins are much larger

than indicated by previous studies such

as NUREG-1738. 1. Heat Transfer Mechanisms Past NRC studies of spent fuel heatup and zirconium fire initiation

conservatively did not consider certain

natural heat-transfer mechanisms which

would serve to limit heatup of the spent

fuel assemblies and prevent a zirconium

fire. In particular, these studies, including NUREG

-1738, did not consider heat transfer from higher-

decay-power assemblies to older, lower-

decay-power fuel assemblies in the SFP.

This heat transfer would substantially

increase the effectiveness of air cooling

in the event the SFP is drained, far

beyond the effectiveness of air cooling

cited in past studies. Both the Sandia

studies and the NAS Report confirm the

NRC conclusion that such heat transfer

mechanisms allow rapid heat transfer

away from the higher-powered

assemblies. The NAS Report also noted

that such heat transfer could air-cool the

assemblies to prevent a zirconium fire

within a relatively short time after the

discharge of assemblies from the reactor

to the SFP.

7 Thus, air cooling is an effective, passive mechanism for cooling

spent fuel assemblies in the pool.

2. Partial Drain-Down Air cooling is less effective under the special, limited condition where the

water level in the SFP drops to a point

where water and steam cooling is not

sufficient to prevent the fuel from

overheating and initiating a zirconium

fire, but the water level is high enough

to block the full natural circulation of

air flow through the assemblies. This

condition has been commonly referred

to as a partial draindown, and is cited

in the Thompson Report. Under those VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00005Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46209 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 8 Two occurrences in 100,000 reactor years.

9 One occurrence in 10,000 reactor years.

conditions, however, it is important to realistically model the heat transfer

between high- and low-powered fuel

assemblies. The heat transfer from hot

fuel assemblies to cooler assemblies will

delay the heat-up of assemblies, and

allow plant operators time to take

additional measures to restore effective

cooling to the assemblies. Further, for

very low-powered assemblies, the

downward flow of air into the

assemblies can also serve to cool the

assembly even though the full-

circulation flow path is blocked. Also, as discussed further in this document, all nuclear plant SFPs have been

assessed to identify additional, existing

cooling capability and to provide new

supplemental cooling capability which

could be used during such rare events.

This supplemental cooling capability

specifically addresses the cooling needs

during partial draindown events, and

would reduce the probability of a

zirconium fire even during those

extreme events.

3. License Amendments In January 2006, the nuclear industry proposed a combination of internal and

external strategies to enhance the spent

fuel heat removal capability systems at

every operating nuclear power plant.

The internal strategy implements a

diverse SFP makeup system that can

supply the required amount of makeup

water and SFP spray to remove decay

heat. The external strategy involves

using an independently-powered, portable, SFP coolant makeup and spray

capability system that enhances spray

and rapid coolant makeup to mitigate a

wide range of possible scenarios that

could reduce SFP water levels. In addition, in cases where SFP water

levels can not be maintained, leakage

control strategies would be considered

along with guidance to maximize spray

flows to the SFP. Time lines have been

developed that include both dispersed

and non-dispersed spent fuel storage.

The NRC has approved license

amendments and issued safety

evaluations to incorporate these

strategies into the plant licensing bases

of all operating nuclear power plants in

the United States.

C. Fuel Will Burn Regardless of Its Age The NRC disagrees with the Petitioners

' assertion that fuel will burn regardless of age. Older fuel (fuel which

has been discharged from the reactor for

a longer time) is more easily cooled and

is less likely to ignite because of its

lower decay power. A study relied upon

by the Petitioners, NUREG

-1738, did conservatively assume that spent fuel

stored in an SFP, regardless of age, may be potentially vulnerable to a partial drain down event, and that the

possibility of a zirconium fire could not

be ruled out on a generic basis. This

conclusion, however, was in no sense a

statement of certainty and was made in

order to reach a conclusion on a generic

basis, without relying on any plant-

specific analyses.

Furthermore, the SFP zirconium fire frequency in NUREG

-1738 was predicated on a bounding, conservative

assumption that an SFP fire involving

all of the spent fuel would occur if the

water level in the SFP dropped below

the top of the spent fuel. The NUREG

- 1738 analysis did not attempt to

specifically address a number of issues

and actions that would substantially

reduce the likelihood of a zirconium

fire, potentially rendering the frequency

estimate to be remote and speculative.

For example, NUREG

-1738 did not account for the additional time available

following the spent fuel being partially

or completely uncovered, but prior to

the onset of a zirconium fire, that would

allow for plant operator actions, makeup

of SFP water levels, and other

mitigation measures. In addition, NUREG-1738 did not consider the impact of plant and procedure changes

implemented as a result of the events of

the September 11, 2001, terrorist

attacks. NUREG

-1738 did clarify that the likelihood of a zirconium fire under

such conditions could be reduced by

accident management measures, but it

was not the purpose of NUREG

-1738 to evaluate such accident management

measures.

D. SFP Zirconium Fire Will Propagate Although it is possible that once a spent fuel assembly ignites, the

zirconium fire can propagate to other

assemblies in the SFP, the NRC has

determined (as explained previously)

that the risk of an SFP zirconium fire

initiation is very low.

E. SFP Zirconium Fire May Be Catastrophic

1. Not New and Significant Information; Very Low Probability The Massachusetts AG states that

while such a catastrophic accident is unlikely, its probability falls within the

range that NRC considers reasonably

foreseeable.

Thus, the Petitioners asserted that an SFP zirconium fire

qualifies as a DBA and, that the impacts

of an SFP fire must be discussed in the

ER submitted by the licensee and the

NRC's EIS, as well as designed against under NRC safety regulations.

The facts that a SFP contains a potentially large inventory of radionuclides and that a release of that material could have adverse effects are

not new. These facts are well known, and were considered in the risk

evaluation of spent fuel storage

contained in NUREG

-1738. Even with the numerous conservatisms in the

NUREG-1738 study, as described previously, the NRC was able to

conclude that the risk from spent fuel

storage is low, and is substantially lower

than reactor risk.

A study relied upon by the Petitioners, the Thompson Report, claimed that the probability (frequency)

of an SFP zirconium fire would be 2E

- 5 per year 8 for events excluding acts of malice (e.g., terrorism) and 1E

-4 per year 9 for acts of malice. With respect to random events (i.e., excluding acts of

malice), the NRC concludes that the

Thompson Report estimate is overly

conservative. A more complete and

mechanistic assessment of the event, as

described in section VI.E.2. of this

Notice, and associated mitigation

measures, leads to considerably lower

values. With respect to events initiated

by a terrorist attack, the NRC concludes

that such probability (frequency)

estimates are entirely speculative. The

NRC also concludes that the additional

mitigation measures for SFP events

implemented since September 11, 2001, together with the more realistic

assessment of spent fuel cooling, indicates that the likelihood of a

zirconium fire, though numerically

indeterminable, is very low.

The 2E-5 per year estimate for events excluding acts of malice is based on an

unsubstantiated assumption that 50

percent of all severe reactor accidents

that result in an early release of

substantial amounts of radioactive

material will also lead to a

consequential SFP zirconium fire. The

Thompson Report does not identify the

necessary sequence of events by which

such scenarios might lead to SFP

zirconium fires, or discuss the

probability of their occurrence. The

NRC analysis in the Shearon Harris

ASLBP proceeding (described in section

VI.E.2. of this Notice) showed that a

more complete and mechanistic

assessment of the event and associated

mitigation measures leads to

considerably lower values. This

assessment includes the following: Frequency and characteristics of the releases from the containment for each

release location; Transport of gases and fission products within the reactor building; VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00006Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46210 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 10 Carolina Power Light Co., LBP-01-9, 53 NRC 239, 244-245 (2001).

11 Id., 53 NRC at 267.

12 Id., 53 NRC at 268.

13 Carolina Power Light Co., Commission Law Issuance (CLI) 11, 53 NRC 370 (2001), pet. for review denied, sub nom, Orange County, NC

v. NRC , 47 Fed. Appx. 1, 2002 WL 31098379 (D.C. Cir.

2002). 14A single failure means an occurrence which results in the loss of capability of a component to perform its intended safety functions *** Fluid

and electric systems are considered to be designed

against an assumed single failure if neither (1) a single failure of any active component *** nor (2) a single failure of a passive component ***

results in a loss of the capability of the system to

perform its safety functions.

10 CFR Part 50, App.

A. Resulting thermal and radiation environments in the reactor building, with emphasis on areas in which SFP

cooling and makeup equipment is

located, and areas in which operator

access may be needed to implement

response actions; Availability/survivability of SFP cooling and makeup equipment in the

sequences of concern; and Ability and likelihood of successful operator actions to maintain or restore

pool cooling or makeup (including

consideration of security enhancements

and other mitigation measures

implemented in response to the terrorist

attacks of September 11, 2001).

2. Shearon Harris Atomic Safety and Licensing Board Panel (ASLBP)

Proceeding In the proceeding regarding the expansion of the SFP at the Shearon

Harris nuclear power plant, located near

Raleigh, North Carolina, the Shearon

Harris intervenor described a scenario

similar to that raised by the Petitioners, namely, that a severe accident at the

adjacent reactor would result in a SFP

zirconium fire.

10 The Shearon Harris proceeding considered the probability of

a sequence of the following seven

events: a. A degraded core accident.

b. Containment failure or bypass.

c. Loss of SFP cooling.

d. Extreme radiation levels precluding personnel access.

e. Inability to restart cooling or makeup systems due to extreme

radiation doses.

f. Loss of most or all pool water through evaporation.

g. Initiation of a zirconium fire in the SFP. Based on a detailed probabilistic risk assessment, the licensee calculated the

probability of a severe reactor accident

that causes an SFP zirconium fire to be

2.78E-8 per year. The NRC staff calculated the probability to be 2.0E

-7 per year. The intervenor calculated the

probability to be 1.6E

-5 per year. The ASLBP concluded that the probability of

the postulated sequence of events

resulting in an SFP zirconium fire was

conservatively in the range described by the Staff: 2.0E

-7 per year (two occurrences in 10 million reactor years)

or less.11 Accordingly, the ASLBP found that the occurrence of a severe

reactor accident causing an SFP

zirconium fire

falls within the category of remote and speculative matters.

12 The Commission affirmed the ASLBP

's decision, and the United States Court of

Appeals, District of Columbia Circuit, upheld the Commission decision.

13 In the Shearon Harris proceeding, the intervenor assumed that, given an early

containment failure or bypass, a spent

fuel zirconium fire would occur (i.e., a

conditional probability of 1.0). In order

for a reactor accident to lead to a SFP

zirconium fire a number of additional

conditions must occur. The reactor

accident and containment failure must

somehow lead to a loss of SFP cooling

and must lead to a condition where

extreme radiation levels preclude

personnel access to take corrective

action. There must be then an inability

to restart cooling or makeup systems.

There must be a loss of significant pool

water inventory through evaporation (which can take substantial time).

Finally, the event must also lead to a

zirconium fire. In contrast to the

intervenor

's estimate, the licensee and the NRC staff estimated a conditional

probability of about one percent that a

severe reactor accident with

containment failure would lead to a SFP

accident. The NRC staff expects that the

conditional probability of a SFP

zirconium fire, given a severe reactor

accident, would be similar to that

established in the Shearon Harris

proceeding. As such, the probability of

a SFP zirconium fire due to a severe

reactor accident and subsequent

containment failure would be well

below the Petitioners

' 2E-5 per year estimate.

The 1E-4 per year estimate in the Thompson Report for events involving

acts of malice assumes that there would

be one attack on the population of U.S.

nuclear power plants per century, and

that this attack will be 100 percent

successful in producing a SFP

zirconium fire (thus, fire frequency =

0.01 attack/year 1.0 fire/attack 1/104 total reactors = 1E

-4/year). The security-related measures and other mitigation

measures implemented since September

11, 2001, however, have significantly

reduced the likelihood of a successful

terrorist attack on a nuclear power plant

and its associated SFP. Such measures

include actions that would improve the

likelihood of the following:

a. Identifying/thwarting the attack before it is initiated.

b. Mitigating the attack before it results in damage to the plant.

c. Mitigating the impact of the plant damage such that an SFP zirconium fire

is avoided.

Given the implementation of additional security enhancements and

mitigation strategies, as well as further

consideration of the factors identified

above, the NRC staff concludes that the

frequency of SFP zirconium fires due to

acts of malice is substantially lower

than assumed by the Petitioners.

3. SFP Zirconium Fire Does Not Qualify As a DBA Regarding the Petitioners

' assertion that a SFP zirconium fire qualifies as a

design-basis accident (DBA), the NRC

staff has concluded that a realistic

probability estimate would be very low, such that these events need not be

considered as DBAs or discussed in ERs

and EISs. Moreover, the set of accidents

that must be addressed as part of the

design basis has historically evolved

from deterministic rather than

probabilistic considerations. These

considerations, which include defense-

in-depth, redundancy, and diversity, are

characterized by the use of the single-

failure criterion.

14 The single-failure criterion, as a key design and analysis

tool, has the direct objective of

promoting reliability through the

enforced provision of redundancy in

those systems which must perform a

safety-related function. The single

failure criterion is codified in Appendix

A and Appendix K to 10 CFR Part 50

and other portions of the regulations.

The SFP and related systems have been

designed and approved in accordance

with this deterministic approach.

F. Intentional Attack on a SFP is

Reasonably Foreseeable.

The Petitioners asserted that an intentional attack targeting a plant

's SFP is reasonably foreseeable.

Specifically, the Petitioners raised both

the NAS study and the decision by the

United States Court of Appeals for the

Ninth Circuit, San Luis Obispo Mothers for Peace

v. NRC , 449 F.3d 1016 (9th Cir. 2006), cert. denied 127 S. Ct. 1124 (2007), to support the assertion that the NRC's NEPA analysis of a license renewal action for a given facility must

include analysis of the environmental

impacts associated with a terrorist

attack on that facility. The NRC has VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00007Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46211 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules 15 In the wake of the Ninth Circuit

's Mothers for Peace decision, the Commission decided against applying that holding to all licensing proceedings

nationwide.

See, e.g., Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI 8, 65 NRC 124, 128

-29 (2007), pet. for judicial review pending , No. 07-2271 (3d Cir.). The Commission will, of course, adhere to the Ninth

Circuit decision when considering licensing actions

for facilities subject to the jurisdiction of that

Circuit. See id. Thus, on remand in the Mothers for Peace case itself, the Commission is currently

adjudicating intervenors

' claim that the NRC Staff has not adequately assessed the environmental

consequences of a terrorist attack on the Diablo

Canyon Power Plant

's proposed facility for storing spent nuclear fuel in dry casks.

See, Pacific Gas &

Elec. Co., CLI-07-11, 65 NRC 148 (2007). The Commission

's ultimate decision in that case will rest on the record developed in the adjudication.

16 The NRC response to the NAS Report is available at ADAMS Accession No. ML0502804280.

17 Conference Committee

's Report (H. Rept. 108

- 357) accompanying the Energy and Water Development Act, 2004 (Pub. L. 108

-137, December 3, 2003).

18 NAS Report at 6 (emphasis in the original).

19 NAS Report at 30.

20 Department of Transportation

v. Public Citizen , 541 U.S. 752, 767 (2004) citing Metropolitan Edison

v. People Against Nuclear Energy , 460 U.S. 766, 774 (1983). considered both the NAS Report and the Ninth Circuit decision, and remains of

the view that an analysis of the

environmental impacts of a hypothetical

terrorist attack on an NRC-licensed

facility is not required under NEPA.

15 But, if an analysis of a hypothetical

terrorist attack were required under

NEPA, the NRC has determined that the

environmental impacts of such a

terrorist attack would not be significant, because the probability of a successful

terrorist attack (i.e., one that causes an

SFP zirconium fire, which results in the

release of a large amount of radioactive

material into the environment) is very

low and therefore, within the category

of remote and speculative matters.

1. NAS Report The Petitioners rely, in part, upon the NAS Report, the public version of

which was published in 2006 and is

available from NAS.

16 In response to a direction in the Conference Committee

's Report accompanying the NRC

's FY 2004 appropriation, 17 the NRC contracted with NAS for a study on the

safety and security of commercial spent

nuclear fuel. The NAS made a number

of findings and recommendations, including: SFPs are necessary at all operating nuclear power plants to store recently

discharged fuel; Successful terrorist attacks on SFPs, though difficult, are possible; The probability of terrorist attacks on spent fuel storage cannot be assessed

quantitatively or comparatively; If a successful terrorist attack leads to a propagating zirconium cladding

fire, it could result in the release of large

amounts of radioactive material; and Dry cask storage has inherent security advantages over spent fuel storage, but it can only be used to store older spent fuel.

The NAS Report found, and the NRC agrees, that pool storage is required at

all operating commercial nuclear power

plants to cool newly discharged spent

fuel. Freshly discharged spent fuel

generates too much decay heat to be

placed in a dry storage cask.

The NRC agrees with the NAS finding that the probability of terrorist attacks

on spent fuel storage cannot be assessed

quantitatively or comparatively.

However, the NRC concludes that the

additional mitigation measures for SFP

events implemented since September 11, 2001, together with a more realistic

assessment of spent fuel cooling, as

shown by the Sandia studies, indicates

that the likelihood of a zirconium fire, though numerically indeterminate, is

very low.

Furthermore, the NAS Report states that [i]t is important to recognize, however, that an attack that damages a

power plant or its spent fuel storage

facilities would not necessarily result in

the release of any radioactivity to the environment. There are potential steps

that can be taken to lower the potential

consequences of such attacks.

18 The NAS Report observed that a number of

security improvements at nuclear power

plants have been instituted since

September 11, 2001, although the NAS

did not evaluate the effectiveness and

adequacy of these improvements and

has called for an independent review of

such measures. Nevertheless, the NAS

Report states that

the facilities used to store spent fuel at nuclear power plants

are very robust. Thus, only attacks that

involve the application of large energy

impulses or that allow terrorists to gain

interior access have any chance of

releasing substantial quantities of

radioactive material.

19 As discussed previously, following the terrorist attacks of September 11, 2001, the NRC has required that nuclear

power plant licensees implement

additional security measures and

enhancements the Commission believes

have made the likelihood of a successful

terrorist attack on an SFP remote.

2. Ninth Circuit Decision The Petitioners asserted that the NRC should follow the decision of the United

States Court of Appeals for the Ninth

Circuit, San Luis Obispo Mothers for Peace v. NRC , 449 F.3d 1016 (9th Cir.

2006), cert. denied 127 S. Ct. 1124 (2007), by considering the

environmental impacts of intentional

attacks on nuclear power plant fuel storage pools in all licensing decisions.

The Ninth Circuit held that the NRC

could not, under NEPA, categorically

refuse to consider the consequences of

a terrorist attack against a spent fuel

storage facility on the Diablo Canyon

reactor site.

The NRC's longstanding view is that NEPA does not require the NRC to

consider the environmental

consequences of hypothetical terrorist

attacks on NRC-licensed facilities.

NEPA requires that there be a

reasonably close causal relationship

between the federal agency action and

the environmental consequences.

20 The NRC renewal of a nuclear power plant

license would not cause a terrorist

attack; a terrorist attack would be

caused by the terrorists themselves.

Thus, the renewal of a nuclear power

plant license would not be the

proximate cause

of a terrorist attack on the facility.

If NEPA required the NRC to consider the impacts of a terrorist attack, however, the NRC findings would

remain unchanged. As previously

described, the NRC has required, and

nuclear power plant licensees have

implemented, various security and

mitigation measures that, along with the

robust nature of SFPs, make the

probability of a successful terrorist

attack (i.e., one that causes an SFP zirconium fire, which results in the

release of a large amount of radioactive

material into the environment) very low.

As such, a successful terrorist attack is

within the category of remote and

speculative matters for NEPA

considerations; it is not

reasonably foreseeable.

Thus, on this basis, the NRC finds that the environmental

impacts of renewing a nuclear power

plant license, in regard to a terrorist

attack on an SFP, are not significant.

The NRC has determined that its findings related to the storage of spent

nuclear fuel in pools, as set forth in

NUREG-1437 and in Table B

-1 of Appendix B to Subpart A of 10 CFR Part

51, remain valid. Thus, the NRC has met

and continues to meet its obligations

under NEPA.

G. SFP Zirconium Fire Should Be Considered Within the Analysis of

SAMAs The Petitioners asserted that SFP fires should be considered within the

analysis of severe accident mitigation

alternatives (SAMAs). While a large

radiological release is still possible, and VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00008Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46212 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules was assessed as part of Generic Issue 82, Beyond Design Basis Accidents in Spent

Fuel Pools , and later, in NUREG

-1738, the NRC considers the likelihood of

such an event to be lower than that

estimated in Generic Issue 82 and

NUREG-1738. Based on the Sandia studies, and on the implementation of

additional strategies implemented

following September 11, 2001, the

probability of a SFP zirconium fire is

expected to be less than that reported in

NUREG-1738 and previous studies.

Thus, the very low probability of an SFP

zirconium fire would result in an SFP

risk level less than that for a reactor

accident.

For example, in NUREG

-1738, the SFP fire frequencies were conservatively

estimated to be in the range of 5.8E

-7 per year to 2.4E

-6 per year. NUREG

- 1738 conservatively assumed that if the

water level in the SFP dropped below

the top of the spent fuel, an SFP

zirconium fire involving all of the spent

fuel would occur, and thereby bounded

those conditions associated with air

cooling of the fuel (including partial-

drain down scenarios) and zirconium

fire propagation. It did not

mechanistically analyze the time

between the spent fuel assemblies

becoming partially or completely

uncovered and the onset of a SFP

zirconium fire, and the potential to

recover SFP cooling and to restore the

SFP water level within this time.

NUREG-1738 also did not consider the possibility that air-cooling of the spent

fuel alone could be sufficient to prevent

SFP zirconium fires.

Furthermore, the Sandia studies indicated that air cooling would be

much more effective in cooling the

spent fuel assemblies. In those cases

where air cooling is not effective, the

time before fuel heatup and radiological

release would be substantially delayed, thus providing a substantial opportunity

for successful event mitigation. The

Sandia studies, which more fully

account for relevant heat transfer and

fluid flow mechanisms, also indicated

that air-cooling of spent fuel would be

sufficient to prevent SFP zirconium fires

much earlier following fuel offload than

previously considered (e.g., in NUREG

- 1738), thereby further reducing the

likelihood of an SFP zirconium fire.

Additional mitigation strategies

implemented subsequent to September

11, 2001, will serve to further enhance

spent fuel coolability, and the potential

to recover SFP cooling or to restore the

SFP water level prior to the initiation of

an SFP zirconium fire.

Given that the SFP risk level is less than that for a reactor accident, a SAMA

that addresses SFP accidents would not be expected to have a significant impact on total risk for the site. Despite the low

level of risk from fuel stored in SFPs, additional SFP mitigative measures

have been implemented by licensees

since September 11, 2001. These

mitigative measures further reduce the

risk from SFP zirconium fires, and make

it even more unlikely that additional

SFP safety enhancements could

substantially reduce risk or be cost-

beneficial.

VII. Denial of Petitions Based upon its review of the petitions, the NRC has determined that the studies

upon which the Petitioners rely do not

constitute new and significant

information. The NRC has further

determined that its findings related to

the storage of spent nuclear fuel in

pools, as set forth in NUREG

-1437 and in Table B

-1, of Appendix B to Subpart A of 10 CFR Part 51, remain valid. Thus, the NRC has met and continues to meet

its obligations under NEPA. For the

reasons discussed previously, the

Commission denies PRM 10 and PRM-51-12. Commissioner Gregory B. Jaczko

's Dissenting View on the Commission

's Decision To Deny Two Petitions for

Rulemaking Concerning the

Environmental Impacts of High-Density

Storage of Spent Nuclear Fuel in Spent

Fuel Pools I disagree with the decision to deny the petition for rulemaking as included in this Federal Register notice. In general, I approve of the decision not to

initiate a new rulemaking to resolve the

petitioners

' concerns, but because information in support of the petition

will be considered when the staff

undertakes the rulemaking to update the

Generic Environmental Impact

Statement for license renewal, I believe

that the decision should have been to

partially grant the petition rather than

deny it. The petitioners requested the agency review additional studies regarding

spent fuel pool storage they believe

would change the agency

's current generic determination that the impacts

of high-density pool storage are

small. I believe that the agency could commit

to reviewing the information provided

by the petitioners, along with any other

new information, when the agency

updates the Generic Environmental

Impact Statement (GEIS) for License

Renewal in the near future. Regardless

of whether or not the information will

change the GEIS

' conclusions, at a minimum, the agency should be

committing to ensure that this

information is part of the analysis performed by the staff upon the next update of the GEIS. While we can not

predict the outcome of the significance

level that will ultimately be assigned to

the spent fuel category in the GEIS, it

seems an obvious commitment to ensure

that the ultimate designation will be

appropriately based upon all

information available to the staff at the

time. Thus, I believe this decision

should be explained as a partial granting

of the petition. It may not provide the

petitioners with everything they want, but it would more clearly state the

obvious-that this information, and any other new information, will be reviewed

by the agency and appropriately

considered when the staff begins its

update of the license renewal GEIS.

This specific issue illustrates a larger concern about how the agency handles

petitions for rulemaking in general. I

find it unfortunate that the agency

appears to limit its responses to

petitions based upon the vocabulary

that has been established surrounding

this program. Currently, when the

agency discusses these petitions, we

discuss them in the context of

granting or denying the rulemaking petitions. We then appear to be less

inclined to

grant unless we are committing to the precise actions

requested in the petition. But these

petitions are, by their very definition, requests for rulemakings; which means, even if we do

grant a petition for rulemaking, we can not guarantee a

particular outcome for the final rule.

The final rulemaking is the result of

staff's technical work regarding the rule, public comments on the rule, and

resolution of those comments.

Rulemaking petitions are opportunities

for our stakeholders to provide us with

new ideas and approaches for how we

regulate. By limiting our responses, we

limit our review of the request, and

thus, we risk missing many potential

opportunities to improve the way we

regulate.

Additional Views of the Commission The Commission does not share Commissioner Jaczko

's dissenting view.

We appreciate his statement of concern

about the petition for rulemaking (PRM) process, but believe these matters are

extraneous to the Commission

's analyses of the petitioners

' technical bases for this particular rulemaking

request and, consequently, they had no

bearing on the majority view.

Specifically, the Commission does not

agree that the petitions should be

granted in part on the basis of the

agency's plan to update the Generic Environmental Impact Statement (GEIS)

for License Renewal and make attendant VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00009Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS 46213 Federal Register/Vol. 73, No. 154/Friday, August 8, 2008/Proposed Rules rule changes in the future. The Commission

's detailed statement of reasons for denial of the petitions is the

product of a careful review of the

petitioners

' assertions and other associated public comments, and is

supported by the facts before us. In

these circumstances, the Commission

does not believe the petitioners

' request can fairly, or reasonably, be

granted in part based on a future undertaking

which itself had no genesis in the

petitioners

' requests.

The Commission

's timely and decisive action in response to the two

petitions serves the interests of the

Commission and other participants in

an effective, disciplined, and efficient

rulemaking petition process. In this

instance, a decision now has particular

value since it directly addresses the

petitioners

' statements of significant concern about certain, generic aspects of

ongoing and future license renewal

reviews. While the analyses performed

to respond to these petitions will also

undoubtedly inform NRC staff proposals

regarding the next update of the GEIS, the Commission does not yet have such

proposals before it. Any final

Commission decisions on an updated

GEIS would be preceded by proposed

changes, solicitation of public comment, and evaluation of all pertinent

information and public comments.

Furthermore, a partial

granting of the petition could imply that the

Commission endorses the petitioners

' requests and will give them greater

weight than other points of view during

the GEIS rulemaking.

As to the other matter raised in Commissioner Jaczko

's dissent-that of agency review and disposition of

petitions for rulemaking more

generally-while petitions for rulemaking are indeed opportunities for

stakeholders to suggest new

considerations and approaches for

regulation, Commissioner Jaczko

's general concerns about the agency

's process for handling rulemaking

petitions go beyond the subject of the

Commission

's action on these petitions.

However, this subject matter is being

considered, as the Commission has

instructed NRC staff [SRM dated August

6, 2007] to conduct a review of the

agency's PRM process. At such time as staff may recommend, as an outgrowth

of this review, specific proposals for

Commission action which would

strengthen the agency PRM process, the

Commission will assess such

recommendations and act on them, as

appropriate.

Dated at Rockville, Maryland, this 1st day of August 2008.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

[FR Doc. E8

-18291 Filed 8 08; 8:45 am]

BILLING CODE 7590 P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 901

[SATS No. AL

-074-FOR; Docket No. OSM

- 2008-0015] Alabama Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

SUMMARY

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a

proposed amendment to the Alabama

regulatory program (Alabama program)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA or the

Act). Alabama proposes revisions to its

regulations regarding permit fees and

civil penalties. Alabama intends to

revise its program to improve

operational efficiency.

This document gives the times and locations that the Alabama program and

proposed amendment to that program

are available for your inspection, the

comment period during which you may

submit written comments on the

amendment, and the procedures that we

will follow for the public hearing, if one

is requested.

DATES: Comments on the proposed rule must be received on or before 4 p.m.,

c.t., September 8, 2008, to ensure our

consideration. If requested, we will hold

a public hearing on the amendment on

September 2, 2008. We will accept

requests to speak at a hearing until 4

p.m., c.t. on August 25, 2008.

ADDRESSES: You may submit comments by either of the following two methods: Federal eRulemaking Portal: http://

www.regulations.gov. The proposed rule is listed under the agency name

OFFICE OF SURFACE MINING RECLAMATION AND

ENFORCEMENT

and has been assigned Docket ID: OSM

-2008-0015. If you would like to submit comments

through the Federal eRulemaking Portal, go to www.regulations.gov and do the following. Click on the

Advanced Docket Search

button on the right side of the screen. Type in the Docket ID OSM-2008-0015 and click the submit button at the bottom of the page. The

next screen will display the Docket

Search Results for the rulemaking. If

you click on OSM

-2008-0015, you can view the proposed rule and submit a

comment. You can also view supporting

material and any comments submitted

by others. Mail/Hand Delivery/Courier:

Sherry Wilson, Director, Birmingham Field

Office, Office of Surface Mining

Reclamation and Enforcement, 135

Gemini Circle, Suite 215, Homewood, Alabama 35209. Please include the

Docket ID (OSM

-2008-0015) with your comments.

We cannot ensure that comments received after the close of the comment

period (see DATES) or sent to an address other than the two listed above will be

included in the docket for this

rulemaking and considered.

For additional information on the rulemaking process and the public

availability of comments, see

III. Public Comment Procedures

in the SUPPLEMENTARYINFORMATION section of this document.

You may receive one free copy of the amendment by contacting OSM

's Birmingham Field Office. See below FOR FURTHERINFORMATIONCONTACT. You may review a copy of the amendment during regular business

hours at the following locations:

Sherry Wilson, Director, Birmingham Field Office, Office of Surface Mining

Reclamation and Enforcement, 135

Gemini Circle, Suite 215, Homewood, Alabama 35209, Telephone: (205) 290

- 7282, swilson@osmre.gov. Randall C. Johnson, Director, Alabama Surface Mining Commission, 1811

Second Avenue, P.O. Box 2390, Jasper, Alabama 35502

-2390, Telephone: (205) 221-4130. FORFURTHERINFORMATIONCONTACT

Sherry Wilson, Director, Birmingham

Field Office. Telephone: (205) 290

- 7282. E-mail:

swilson@osmre.gov. SUPPLEMENTARYINFORMATION

I. Background on the Alabama Program II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations I. Background on the Alabama Program Section 503(a) of the Act permits a State to assume primacy for the

regulation of surface coal mining and

reclamation operations on non-Federal

and non-Indian lands within its borders

by demonstrating that its program

includes, among other things, *** a State law which provides for the

regulation of surface coal mining and

reclamation operations in accordance VerDate Aug<31>2005 15:21 Aug 07, 2008Jkt 214001PO 00000Frm 00010Fmt 4702Sfmt 4702E:\FR\FM\08AUP1.SGM08AUP1 rfrederick on PRODPC74 with PROPOSALS