ML20137V244

Requests Review of & Concurrence W/Encl Commission Paper Recommending Denial of Petition from State of Wi Re NRC Approval of Individual Shipments of Spent Nuclear Fuel. Public Comments Also Encl

ML20137V244
Person / Time
Issue date:	01/14/1986
From:	Minogue R NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES)
To:	Cunningham G, Harold Denton, Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), Office of Nuclear Reactor Regulation, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML20137V227	List: ML20137V222 ML20137V244
References
RULE-PRM-71-10 NUDOCS 8602190487
Download: ML20137V244 (2)

Text

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S FEB 11198(,

MEMORANDUM FOR: Robert B. Minogue, Director Office of Nuclear Regulatory Research FROM: Harold R. Denton, Director Office of Nuclear Reactor Regulation

SUBJECT:

WISCONSIN PETITION PRM 71-10: NRC APPROVAL OF INDIVIDUAL SHIPMENTS OF SPENT NUCLEAR FUEL Although NRR has no direct role in the regulation or oversight of spent fuel shipments, we have reviewed the response to the petition from the State of Wisconsin and suggest the following comments for your consideration.

The Assistant Attorney General for the State of Wisconsin filed the petition in December 1984, requesting that the NRC " establish a regulatory process for the evaluation and approval of proposed shipments of irradiated reactor fuel...

the proposed rule would: 1) prohibit unapproved shipments; 2) require the NRC to evaluate and pass upon the propriety of the shipment; and 3) provide an opportunity for public input into that decision." In support of the petition, the State alleged that there exist a number of deficiencies in the overall federal regulatory arena. Namely, "no federal agency has considered the need for the shipments, the safety or environmental risks associated with the selected routes or the propriety of exposing the public to these rish.. Nor does any agency require adequate safeguards to protect against emergencies.

The public has no opportunity for meaningful input into the decision to transport waste..... Additionally, the NRC does not regulate the carrier or consider its safety record."

In the draft Federal Register Notice of Denial of Petition, the staff concluded that the new procedure requested in the petition was not justified by the arguments presented, and that " controls now licensed under the combined programs of NRC, the Departments of Transportation (DOT) and Energy, the Federal Emergency Management Agency, and the States are sufficient to provide adequate assurance against unreasonable risk to the health and safety of the public." The rationale for this conclusion is discussed in the Supplementary Information, particularly in IV, Consideration of Petition Issues.

The discussion is focused on the legal authority over transportation of spent fuel that is vested in each of the federal agencies, the specific regulatory requirements for such shipments, and programs designed to assure safe transport and to protect the public. We would offer that it is inappropriate for the NRC to: (1) judge the effectiveness of programs and regulatory oversight of other federal agencies, and (2) to use this judgment as a part of its basis for denial of the petition. It is, however, appropriate to use as a basis for denial of the petition a definition of the NRC's scope of legal authority, characterization of NRC's regulatory framework, and a judgment as to the effectiveness of NRC programs and oversight.

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Robert B. Minogue Although the concerns of the State were framed in the petition as generic issues and did not address a specific mode of transportation (e.g., road, rail, water), the immediate concerns, as expressed in the October 31, 1984 letter from Governor Earl to Chairman Palladino, are with rail shipments through Wisconsin from Monticello, Minnesota to Morris, Illinois. With the exception of a few statements in the description of the federal regulatory arena in the Notice of Denial of Petition, the discussion was relevant to truck transport, but not necessarily to rail transport. We would suggest that it is inappropriate to use the adequacy of the regulatory arena for truck transport as a basis for arguing against the need for further regulation overall of the transport of spent fuel. This is especially valid when the Governor's particular concern is that of rail transport.

In short, our recommendation is that the denial be based solely on the NRC's authority, regulations, programs, and oversight of the transport of s?ent fuel, both generically and by mode.

If you have questions or wish to discuss these comments, please contact F. Brenneman, ORAS, on extension 27856.

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Harold R. Denton, Director Office of Nuclear Reactor Regulation l

FEB 11 1985 Robert B. Minogue Although the concerns of the State were framed in the petition as generic issues and did not address a specific mode of transportation (e.g., road, rail, water), the immediate concerns, as expressed in the October 31, 1984 letter from Governor Earl to Chairman Palladino, are with rail shipments through Wisconsin from Monticello, Minnesota to Morris, Illinois. With the exception of a few statements in the description of the federal regulatory arena in the Notice of Denial of Petition, the discussion was relevant to truck transport, but not necessarily to rail transport. We would suggest that it is inappropriate to use the adequacy of the regulatory arena for truck transport as a basis for arguing against the need for further regulation overall of the transport of spent fuel. This is especially valid when the Governor's particular concern is that of rail transport.

In short, our recommendation is that the denial be based solely on the NRC's authority, regulations, programs, and oversight of the transport of spent fuel, both generically and by mode.

If you have questions or wish to discuss these comments, please contact F. Brenneman, ORAS, on extension 27856.

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g a- riownwute State of Wisconsin I O'ffice of the Governor Anthony S. Earl October 31, 1984 Mr. Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Palladino:

I have been following with great interest your agency's response to Northern States Power Company's plan to ship 1,058 spent fuel assemblies from Monticello, Minnesota to Morris, Illinois. As you may know, I have consistently questioned the wisdom and necessity of these shipments.

On October 16, 1984 Wisconsin officials met with representatives of the NRC and the Federal Railway Administration to explain why, in our view, the proposed Burlington Northern route should not be approved. Nonetheless, a route approval was issued by NRC within a few days of that meeting.

I am deeply disappointed by the very narrow view the NRC is apparently taking of its authority to analyze and review these shipments. I understand that this may be the largest shipment of nuclear waste ever contemplated in the country, yet no significant environmental review has ever been conducted by the NRC. No formal inquiry has been made into the need to l transport this waste, and no attempt has been made to identify the best route for the shipments. -

Because of this lack of review, I have decided to officially petition the. ,

NRC asking for an assessment of the need for these shipments. ThLt i

l assessment should include an inquiry into the viability of alternatives to l shipment, including dry cask storage. If the assessment does indicate a l need for the shipmen 9 the petition will ask the NRC to R/:nally analyze alternate routes.

I believe it is essential that these questions be addressed. If the NRC and other federal agencies fall to do so, then I will support state legislation to ,

l fill this regulatory void.

I hope you share my belief that these questions are serious and need to be .

resolved. I also hope that the Commission will delay the shipments until l

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State Capitol P.O. Box 7863 Madison, WI 53707 7863 hDO ' OM102 808 266-1212.

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• 2 iuch time as Wisconsin's petition can be considered. Please remember that these shipments are scheduled to occur over a number of years, and there is no immediate need for additional storage capacity at Monticello. I have instructed my staff to prepare a petition for submittal by December 1,1984.

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.The Honorable Anthony S. Earl W01mstead Governor of Wisconsin EDO 102 Madison, Wisconsin 53707-7863 SECY OCA

Dear Governor Earl:

NHSS r/f We are pleased to respond to your October 31, 1984 letter concerning the proposed transportation of spent nuclear fuel from Monticello, Minnesota through Wisconsin. Your letter -

raises several issues concerning the Nuclear Regulatory

- Commission's (NRC) regulatory progr.am governing the transport of spent fuel in general, and the shipment of spent fuel from the Monticello nuclear power plant to the GE Morris facility

- in particular. These issues include the need to ship spent fuel, environmental assessments regarding the shipments, and selection of the "best" route for the shipments.

The NRC's regulatory authority and responsibility is established primarily in the Atomic Energy Act of 1954, as amended. The Act requires that NRC provide for adequate protection of the public health and safety, as well as protection aga'.nst risks to the common defense and security, in the use of source, by)roduct and special nuclear material, including transport of t1ese materials. Because of overlapping responsibility with the Department of Transportation (DOT) in the transport of n': clear materials, the NRC has joined DOT in a Memorandum of Understanding which designates how these responsibilities will be discharged.

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With respect to spent fuel tran. port, NRC assumes primary responsibility to assure that the transport package will maintain its integrity during normal conditions of transport and during accidents. The NRC also assumes responsibility for l

reviewing the provision of safeguards for spent fuel shipments i against acts of sabotage. NRC's regulatory responsibility regarding the transportation of nuclear materials does not include the authority to determine the need for the shipment under these circumstances. The DOT assumes responsibility for' route safety and conditions of carriage. The combined HRC and DOT regulations are aimed at providing adequate protection of public health and safety. We believe that the existing .

regulatory program has demonstrated an excellent safety record and that our regulations are adequate to protect the pilblic against unreasonable risks from the transport of radioacti.ve materials (46 FR 21619, April 13, 1981).

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Your letter also refers to an absence of any significant environmental review regarding the Monticello shipments. The environmental impacts of spent fuel transportation were considered in NRC's generic Final Environmental Statement on -

the Transportation of Radioactive Materials by Air and Other Modes 'NUREG-0170). Furthermore, No ^.;iern States Ptwer's Environmental Report and the Atomic Energy Commission's (AEC)

Environmental Impact Statement for the Monticella plant t

addressed the shipment of spent fuel from Monticello to GE Morris, although the purpose for the shipments at that time was projected to be for reprocessing rather than storage. In either case, the environmental impact of transport would be the same.

With regard to the shipment routes. DOT is responsible for determining the safety of routes. NRC's spent fuel shipment routing responsibility is limited to that needed for safeguards protection against sabotage. In this regard, NRC has established safeguards criteria for shipment routes (10 CFR 73.37). NRC does not propose alternate route *,"but rather.

approves routes and alternate routes submitted by -licehsees or their agents that satisfy the applicable'safegua.rds requirements. The route proposed by the shipper.for the Monticello fuel was surveyed and met the NRC safeguards '

requirements and. .therefore. .was approved. ~

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We hope these comments assist in understanding our actions concerning the proposed spent fuel shipment campaign froa Monticello. Since the licensee will be required to comply i

with a regulatory program that we believe adequately protects the public health and safety, we have no basis to delay the shipments.

j t Sincerely.

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i Nunzio J. Palladino i

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l For: The Commissioners Frsm: Victor Stello, Jr.

Acting Executive Director for Operations

Subject:

Denial of Petition for Rulemaking Concerning The Need and Safety of Shipments of Spent Nuclear Fuel (PRM-71-10)

Purpose:

To obtain Commission approval of denial of the petition. ...

Category: This paper covers a minor policy matter requiring Commission approval.

Issue: Whether the Commission should initiate a new function to specifically approve individual spent nuclear fuel shipments taking into account the need and safety of each shipment, and affording a mechanism for public input to each approval decision.

Summary: The petitioner requests that the NRC expand the scope of its regulations pertaining to spent nuclear fuel transport "to ensure that bott the need for and the safety and environmental consequences of proposed shipmencs have been considered in a public forum prior to the soproval of the shipment and route." In support of this request, the petitioner alleges a number of deficiencies in the transportation regulatory program of the NRC and of the entire Federal regulatory system. The staff has examined those alleged deficiencies and the substance of public comments submitted in support of and in opposition to the petitioner's request, and has found the petitioner's justifi-cation insufficient for the requested changes.

I 12/09/85 CP DENIAL OF PETITION 71-10

Tha Commissioners 2 l

Discussion: By letter dated December 13, 1984, Mr. Carl Sinderbrand, Assistant Attorney General of the State of Wisconsin, filed a petition for rule-making. The petitioner requested that NRC establish a regulatory pro- I cess for the evaluation and approval of individual shipments of spent nuclear fuel proposed by licensees. The petitioner proposes a rule which would (1) prohibit unapproved shipments; (2) require an applica-tion for approval which demonstrates that the applicant will satisfy safety, safeguards and routing requirements, that the shipment is necessary, that there are no unique risks along the proposed route, that alternatives to the shipment and route have been evaluated, and that the proposed shipping cask will withstand all reasonably foresee-able incidents along the proposed route; (3) provide an opportunity for public participation in the approval decision; and (4) provide for ade-quate protection of the public health and safety and promote the common defense and security.

Notice of receipt of the petition was published in the Federal Register (50 FR 4866) on February 4, 1985. Forty-four letters of comment were received and considered. Most of the thi-ty-four commenting State and local governments, public interest groups, and individuals supported the Wisconsin petition for the reasons given in the petition, while the ten commenting power and other industrial companies opposed the pro-posal as unnecessary, duplicative, and burdensome.

The petitioner alleges the following five deficiencies in the Federal regulatory system which support his claim that NRC needs to establish a regulatory process for the evaluation and approval of individual ship-ments of spent nuclear fuel proposed by licensees:

1. No Federal agency considers the safety or environmental risks associated with selected routes;

2. No Federal agency requires adequate safeguards to protect the pub-lic in the event of an accident or other emergency; 12/09/85 CP DENIAL OF PETITION 71-10

The Commissioners 3

3. The NRC does not regulate the carrier of spent nuclear fuel or consider its safety record;

4. No Federal agency considers the need for individual shipments of spent nuclear fuel; and

5. The public has no opportunity for meaningful participation with respect to the decision to transport spent nuclear fuel.

The staff has evaluated each of these allegations and the public com-ments submitted in support of and in opposition to the petition. The staff's evaluation is documented in the Federal Register Notice of Denial. The results of that evaluation show that the petitioners alle-

.gations are either not substantiated (i.e. protect the public in the event of an accident) or, if true (e.g. NRC does not regulate carrier safety), are not sufficient justification for the new approval proce-dure called for in the petition. Public comments are included in Enclosure F.

The staff concludes, based on the preceding discussion, that the new procedure requested in the petition is not justified by the allegations in the petition. The staff believes that the controls exercised and the support available under the combined programs of NRC, DOT, DOE, FEMA, and the States provide adequate assurance against unreasonable risk to the health and safety of the public. It is the staff view that the petition, having been inadequately justified, should be

. denied.

12/16/85 CP DENIAL OF PETITION 71-10

The Commissioners 4 Recommendation: That the Commission:

a. Approve the denial letter to the petitioner (Enclosure A);

b. Approve the Federal Register Notice of Denial (Enclosure B);

c. Note

1. That appropriate Congressional Committees will be informed by letter (Enclosure C).

That the notice of denial will be published in Nuclear

, 2.

Regulatory Commission Issuances.

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3. That a public announcement will be issued (Enclosure D).

4. That the Commission's regulations in 551.22 specifically exclude from environmental consideration all actions on petitions for rulemaking.

Victor Stello, Jr.

Acting Executive Director for Operations

Enclosures:

A. Draft Denial Letter B. Draft FR Notice of Denial C. Draft Congressional Letter ,

D. Draft Public Announcement E. State of Wisconsin Petition F. Public Comments I'

12/09/85 CP DENIAL OF PETITION 71-10 l

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ENCLOSURE A Draft Denial Letter Carl A. Sinderbrand, Esquire Assistant Attorney General Department of Justice State of Wisconsin P.O. Box 7857 Madison, WI 53707

Dear Mr. Sinderbrand:

This letter responds to your petition for rulemaking (PRM-71-10), which you submitted to the Nuclear Regulatory Commission (NRC) in December 1984, . requesting that the NRC expand the scope of its regulations pertaining to spent nuclear fuel transport to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum prior to the approval of the shipment and route.

In support of the petition you alleged a number of deficiencies in the transpor-tation regulatory programs of the entire Federal regulatory system and the NRC program in particular. These alleged deficiencies, as consolidated from the petition, can be described as follows:

1. No Federal agency considers the safety or environmental risks associated with selected routes;

2. No Federal agency requires adequate safeguards to protect the public in the event of an accident or other emergency;

3. The NRC does not regulate the carrier of spent nuclear fuel or consider I

its safety record; l

12/09/85 1 DRAFT DENIAL LETTER ENCL A l

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4. No Federal agency considers the need for individual shipment of spent nuclear fuel; and

5. The public has no opportunity for meaningful participation with respect to the decision to transport spent nuclear fuel.

NRC published a notice of receipt of your petition in the Federal Register on February 4, 1985, 50 FR 4866, and requested comments. Forty-four comments were received and were provided to you by letters dated April 24, 1985 from J. M. Felton and May 24, 1985 from John Phillips.

The NRC has studied your petition and the public comments submitted in support and opposition to it. For the reasons specified in the enclosed Federal Register Notice, the Commission has found that the justification provided in the petition for the new procedure requested for individual approval of spent nuclear fuel shipments is insufficient for that purpose and that the suggested procedures would not significantly serve to improve the protection of the public against unreasonable risk from the transportation of radioactive materials. Therefore, your petition is denied.

Sincerely, Samuel J. Chilk Secretary of the Commission

Enclosure:

Federal Register Notice Denying Petition 12/09/85 2 DRAFT DENIAL LETTER ENCL A

[7590-01]

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ENCLOSURE B NOTICE OF DENIAL OF PETITION NUCLEAR REGULATORY COMMISSION 10 CFR Part 71

[ Docket No. PRM-71-10]

The State of Wisconsin; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

SUMMARY

The Nuclear Regulato.y Commission (NRC) is denying a petition ,-

for rulemaking (PRM-71-10) filed by the State of Wisconsin. The petitioner requests that the NRC expand the scope of its regulations pertaining to spent nuclear fuel transport "to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum prior to approval of the shipment and route."

It is the NRC's conclusion that the new procedure requested in the petition l is not justified by the arguments presented in the petition when considered I

together with the views and arguments of other persons who commented on l

the petition. The NRC believes that controls now exercised under the combined programs of NPC, the Departments of Transportation (DOT) and l

l Energy, the Federi.1 Emergency Management Agency, and the States are sufficient to provide adequate assurance against unreasonable risk to the health and safety of the public. In regard to the petitioner's l

l 12/20/85 1 FRN 10 CFR PART 71

[7590-01]

concern with costs to taxpayers and ratepayers, the United States Supreme i

Court has determined that the Atomic Energy Act does not give the NRC the authority or responsibility to control financial risks to utility rate payers.

ADDRESSES: Copies of correspondence and documents cited in this document ,

are available for public inspection and copying for a fee 4t the NRC's Public Document Room at 1717 H Street, NW., Washington, DC. Copies of NUREG-0170 may be purchased by calling (202) 275-2060 or by writing to the Superintendent of Documents, U.S. Government Printing Office, Post Office Box 37082, Washington, DC 20013-7082.

FOR FUATHER INFORMATION CONTACT: Donald R. Hopkins, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 443-7878.

SUPPLEMENTARY INFORMATION: --

Contents:

I. Background II. Issues Raised III. Public Comments IV. Consideration of Petition Issue; V. Consideration of Comment Issues VI. NRC Conclusion 12/20/85 2 FRN 10 CFR PART 71

[7590-01]

1. Background By letter dated December 13, 1984, Mr. Carl A. Sinderbrand, on behalf of the State of Wisconsin, filed with the NRC a petition for rulemaking in which he requested that the NRC amend its regulations to initiate a new procedure to specifically approve individual spent nuclear fuel ship-ments and to afford a mechanism for public input for each approval decision.

The NRC published a notice of receipt of the petition on February 4, 1985 i

(50 FR 4866), including the full text of the petitioners proposed amendment, and invited nublic comments.

NRC has never had a procedure for approving individual shipments of spent nuclear fuel. The Atomic Energy Commission (AEC) regulatory program issued specific licenses authorizing types of shipments, including a speci-fied shipping cask, until 1973. Repetitive specific licenses were issued when more than one licensee used the same shipping cask.

In 1973 the AEC agreed to take the lead in reviewing and approving packages for all commercial radioactive material shipments except those limited to designated small quantities, while DOT exercised its authority in other areas. At this time the procedure of issuing repetitive specific licenses was dropped, and replaced by the current system of approving designs of packages which any licensee could use by registering as a user.

This system was combined with a general license authorizing anyone to make shipments in an NRC approved package provided the person is registered to use the package, has an NRC approved quality assurance program, and has certain specified documentation. The use of the general license elim-inated a large paperwork burden on AEC and licensees alike, and has been

! proved over the years to provide adequate control.

12/20/85 3 FRN 10 CFR PART 71

[7590-01]

II. Issues Raised The petitioner proposes a rule which would (1) prohibit unapproved shipments, (2) require an application for approval which demonstrates that the applicant will satisfy safety, safeguards, and routing requirements, j that the shipment is necessary, that there are no unique risks along the proposed route, that alternatives to the shipment and route have been evaluated, and that the proposed shipping cask will withstand all reasonably foreseeable incidents along the proposed route, (3) provide an opportunity for public participation in the approval decision, and (4) provide for adequate protection of the public health and safety and promote the common defense and security.

l , The petitioner alleges the following five conditions which support

the claim that NRC needs to establish a regulatory process for the evalua-tion and approval of individual shipments of spent nuclear fuel proposed by licensees:

4

1. No Federal agency considers the safety or environmental risks associated with selected routes;

2. No Federal agency reouires adequate safeguards to protect the public in the event of an accident or other emergency;

3. The NRC does'not regulate the carrier of spent nuclear fuel or consider 16s safety record;

, 4. No Federal agency considers the need for individual shipments of

. spent nuclear fuel; and

5. The public has no opportunity for meaningful participation with respect to the decision to transport spent nuclear fuel.

4 i

l 12/20/85 4 FRN 10 CFR PART 71

[7590-01]

III. Public Comments In response to the invitation for public comments on the petition for rulemaking, 44 comment letters were submitted to the NRC by State and local governments, individuals, public interest groups, and power and other industrial companies. Of the 21 comment letters from State and local governments,18 supported the need for the new regulatory process or some variation of it. Those who expressed reservations cited undue hard-ship associated with the proposal, security problems, and undue delays associated with the proposed hearings. One Indian tribe noted the lack of any specific provision for involvement by Tribal governments. Six of the seven individual commenters supported the rule for the reasons stated in the petition. The one who expressed reservations cited the lack of justi-fication for the proposal. All six public interest groups supported the proposal for the reasons outlined in the petition. The 10 power companies and other industrial organizations that commented opposed the petition citing lack of justification, duplication, undue burden, and lack of legal foundation. In summation, 30 commenters supported the petition primarily for the reasons given in the petition, and 14 commenters opposed the peti-tion for lack of justification, duplication, security problems, undue burdens and delays, and lack of a legal foundation for the petitioner's proposal.

IV. Consideration of Petition Issues The petitioner cites a number of allegations which support the request that the NRC adopt the proposals in the petition.

12/20/85 5 FRN 10 CFR PART 71 i

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[7590-01]  !

1. Failure to consider safety or environmental risks of specific routes i

In its first allegation, the petitioner, in speaking of spent nuclear l 1

fuel shipments over the last 18 months, states that "no federal agency I has considered...the safety or environmental risks associated with the selected routes...." Petition at 4. Later, the petitioner argues that "the NRC does not independently consider the safety of the particular route, and does not evaluate the potential safety and environmental risks of the shipment...." M at 6. Finally, in describing what it considers to be "a significant gap in the regulatory program," the petitioner states that "no agency considers risks associated with specific routes." M .

The petition would require that an applicant for spent nuclear fuel shipment approval evaluate alternatives to the proposed route and demon-strate that the proposed shipment, including its route, is the alternative which provides the least risk of radiological exposure to the public.

The DOT has specific regulations for the routing of spent nuclear fuel by road which require that the carrier operate over preferred routes which include interstate highways and state-designated alternate routes.

The routes are selected after consideration is given to minimization of time-in-transit and radiological risk. The routing rule was upheld by the Second Circuit Court of Appeals in City of New York v. Department of Transportation, 715 F.2d 732 (2nd Cir.1983), cert. denied,104 S. Ct.1403 (1984). In upholding the DOT regulation, the Court opined that the Hazardous Material Transportation Act does not require that the safest means be used in transporting spent fuel or any other hazardous material; but only 12/20/85 6 FRN 10 CFR PART 71

[7590-01]

~

j requires the DOT to promulgate rules that provide for adequate safety.

Id. at 740. Thus, no detemination by the licensee could be required by NRC to show that the proposed shipment is the alternative which provides the least risk as long as the shipment provides for adequate safety as

, prescribed under the DOT routing rules.

The rule is based on the DOT's finding that the interstate highway system generally minimized the risk of transporting spent nuclear fuel, and that state agencies can designate alternate routes in accordance with DOT guidelines for minimizing risk. The DOT has made a generic evaluation of routes and lays out the interstate highway system as the basic Federal i framework providing safe and efficient routes for transporting spent nuclear fuel by road. In addition to this generic evaluation by DOT of interstate ,

and alternate routes available for spent nuclear fuel transportation, the 1

! NRC specifically evaluates and approves routes selected by licensees for safeguards purposes. These route approvals are not limited to individual i

shipments of spent nuclear fuel, but may be used for repetitive shipments.

DOT physically inspects rail track for safety when it is to be used for transportation of spent nuclear fuel. The inspections are made before the start of a series of shipments over the same route and at six-month intervals during those shipments.

l

In addition to the determinations of routing adequacy made by the i 00T the NRC concluded, after issuing its Final Environmental Statement i on the Transportation of Radioactive Material by Air and Other Modes

~

l (NUREG-0170) in December 1977, that its regulations were adequate to pro-tect the public against unreasonable risk from the transportation of spent  ;

) nuclear fuel. For 1985, the report projected that there would be 1530 i

i spent nuclear fuel shipments by truck and 652 by rail (Table 1.1). These I

i 12/20/85 7 FRN 10 CFR PART 71

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j [7590-01]

shipments were evaluated as presenting an accident risk of only .0004 latent cancer fatalities per year (Table 5.9). Based on this evaluation, the risk associated with any individual shipment of spent nuclear fuel transported in accordance with NRC and DOT regulations is small.

In support to the petition's contention that shipping controls may

not be adequate for some routes, a commenting State agency has conducted a review of the technical literature on cask design, development and perform-ance, and concluded that the safety of existing casks is sufficiently 1

! uncertain as to warrant more extensive testing which would address poten- ,

tially hazardous conditions for each proposed route. An individual

)

commenter notes that casks now in use have not been tested for strength l when heated to the temperature at which they travel and then submerged into the cold waters of the Mississippi River.

The Commission notes the longstanding disagreement by some persons as to the adequacy of the NRC package standards for transportation of 4

l radioactive material, and over whether the packages can be adequately evaluated by engineering analysis or must be physically tested to ensure I

their accident resistance. The NRC employs the package standards of the

^

International Atomic Energy Agency which have been in use throughout most of the world for almost 20 years. While spent nuclear fuel casks have l

not been subjected to all possible combinations of accident conditions

! during that time, there has been enough accident experience to confirm the high strength of casks in use today. Thermal stresses created by submerging a spent nuclear fuel cask operating at normal temperatures

, into the cold waters of the Mississippi River are surely adequately tested

]

against by the regulatory test requirements.

l 12/20/85 8 FRN 10 CFR PART 71

[7590-01]

2. Protection of the Public in Emergencies

, The petitioners second allegation avers that no Federal agency requires

" adequate safeguards to protect against emergencies," and that "NRC...only gives cursory attention to emergency planning." Petition at 6.

The Federal plan for providing adequate safeguards to protect against radiological emergencies is described in a Federal Register notice issued by the Federal Emergency Management Agency (FEMA) on September 12, 1984 (49 FR 35896). The plan describes how 12 Federal agencies that have i resources and capabilities applicable to a Federal response to a radiolo-gical emergency will work together and will work with State governments and private organizations during an emergency response.

. The plan, known as the Federal Radiological Emergency Response Plan (FRERP), describes how the Federal Government will respond to State requests t

l for assistance during a major radiological emergency, how the Department

) of Energy (DOE) will maintain radiological monitoring and assessment sup-port to the State and local governments, and how the other Federal agencies t

i are prepared to augment the DOE support if necessary. The FRERP has been tested by the Federal agencies and proved viable.

. The scope of the FRERP specifically includes Federal response to transportation accidents involving radiological materials. One of the FRERP planning assumotions is that State or local governments have primary responsibility for determining and implementing any measures to protect life, property, and the environment in any areas not within the boundaries of a fixed nuclear facility. In a transportation accident, the State or i

local government has the responsibility for taking emergency action, while l

appropriate Federal resources may be used to support State and local govern-ments response measures, if requested. Federal agency response plans l

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[7590-01]

recognize the primacy of the response roles of owners or operators and State and local governments.

A utility comments that when an accident occurs the response to it is, of necessity, a local responsibility. After reviewing the responsibil-ity of the Department of Transportation (DOT) to reduce the probability of transportation emergencies, and the responsibility of the Department of Energy (DOE) to maintain response teams to assist local authorities in the event of a nuclear emergency, the utility refers to a DOT conclusion that " spent nuclear fuel poses a much lower risk of transportation accident than do any number of common chemicals, the containment of which could also be expected to exceed the capacity of local groups to respond

, (49 FR 46664)."

A second utility agrees that it would appear appropriate for a State, in conjunction with its emergency response capabilities, to examine possible routes within its borders and recommend to NRC that these preselected routes be used. The Commission notes that this process is already in use and that a number of States have recommended routes within their States.

These State ecomme'ndations are considered by NRC in its route approval j process for spent nuclear fuel shipments.

An individual from the State of Wisconsin, after reviewing the regula-tory system now in place, the small risk of radiation injuries from a spent nuclear fuel incident, and the numerous competent groups available to respond to a transportation accident involving radioactive material in Wisconsin, concludes that the Wisconsin proposal would result in adverse consumer economics without significantly improving public safety.

In response to a Congressional determination that advance notification of spent nuclear fuel shipments is a necessary ingredient to adequate 12/20/85 10 FRN 10 CFR PART 71

, - , , - - - . , - - . - . N .$ _ - - - . - . _ - - - - - _ , , - . - -- - - . - - - .

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emergency response capability, NRC regulations now require prior notifica-tion of such shipments to the Governor of each State through or into which the shipment will pass. In commenting on the Wisconsin petition, a State agency noted that, particularly in the area of advance notification of shipment of spent nuclear fuel, the NRC's regulations must be strengthened.

A second State expressed its concern with the lack of enforcement and inspection procedures needed to assure that proper prenotification is made by the shipper and that information submitted is accurate. In addi-tion, a city urged the NRC to increase the length of the notice period for spent nuclear fuel advance notifications. The Commission considers its advance notification rule to be reasonable in terms of the length of notification period and considers its inspection and enforcement of this rule to be sufficient to ensure its effectiveness. However, this must be considered a side issue not covered within the Wisconsin petition, because no proposal to amend the advance notification provisions is included in the petition. Changes to those requirements may be proposed under the

" petition for rulemaking" provisions of 10 CFR 2.802 of the NRC regulations.

Another essential ingredient for adequate emergency response capability is trained response personnel at both the State and local levels. The Federal Emergency Management Agency (FEMA), in its March 11, 1982 revision of 44 CFR Part 351 - Radiological Emergency Planning and Preparedness, sets i

i out Federal agency roles and assigns tasks regarding Federal assistance l

to State and local governments in their radiological emergency planning and preparedness activities. FEMA places upon itself the responsibility to develop and manage a radiological emergency response training program to meet State and local needs, using technical expertise and resources of i

12/20/85 11 FRN 10 CFR PART 71

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other involved agencies. The NRC, Environmental Protection Agency, and the Departments of Health and Human Services, Energy, Transportation, Agri-culture, and Commerce all have responsibilities to assist FEMA, in their particular fields of expertise, in the development, implementation, and presentation of training programs for Federal, State, and local radiologi-cal emergency preparedness personnel. The Department of Transportation has the particular responsibility in the area of transportation emergencies to provide guidance and materials for use in training emergency services and other response personnel for transportation accidents involving radio-active materials.

Emergency response training programs which have resulted from these Federal responsibilities are as fo11ows1

a. DOE, through Dak Ridge Associated Universities (ORAU), offers --

- " Medical Planning and Care in Radiation Accidents," a one week course for physicians, training about 48 participants per year.

- " Health Physics in Radiation Accidents," a one week course for health physicists, training about 36 participants per year.

" Handling of Radiation Accidents by Emergency Personnel,"

a 2-1/2 day course for emergency room surgeons and nurses, training about 54 participants per year.

b. DOT offers --

1 FEMA-REP-5, Guidance for Developing State and Local Radiological Emergency Response Plans and Preparedaess for Transportation Accidents, March 1983, Federal Emergency Management Agency.

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~

- " Radioactive Materials Transportation Information and Inci-dent Guidance," a self-training manual.

Materials Transportation Bureau Information Services Division I Department rif 1ransportation Washingtois, D.C. 20590 (202) 426-2301

- Emergency Response to Hazardous Materials in Transportation (Self Study Guide), U.S. Department of Transportation, 1982.

This is a DOT-offered self-study course on full-spectrum transportation regulations. For information about the availability of this document and the course, contact the ,-

Materials Transportation Bureau (see above.)

- " Handling Radioactive Materials Transportation Emergencies,"

a training package for first-on-the-scene responders. This is a 6 to 8 hour9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> tape and slide presentation, developed for DOT under contract and available by purchase from:

Media Enterprises, Inc.

930 West 17th Street Santa Anna, California 92876 (714) 835-08L The National Fire Protection Association is an excellent source for training courses and materials for full-spectrum hazardous materials.

National Fire Protection Association Capital Gallery, Room 220

! 12/20/85 13 FRN 10 CFR PART 71

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600 Maryland Avenue, S.W.

Washington, D.C. 20024 (202) 484-8200 Hazardous Materials: 1980 Emergency Response Guidebook, U.S.

Department of Transportation, 1980.

This document has relevance to full-spectrum hazardous material response. The DOT has distributed this document with the intent of providing a copy for operators of every emergency vehicle in the United States. For information about the availability of this document, contact the Mate-rialsTransportath<nBureau(seeabove).

c. FEMA REP program offers --

" Radiological Emergency Planning Seminar," a one week seminar focusing on nuclear power plant offsite planning requirements conducted at the National Emergency Training Center (NETC),

Emmitsburg, Maryland.

" Radiological Accident Assessment Course," a one week course to train radiological health personnel in offsite dose assessment and projection techniques, conducted at the NETC.

" Radiological Emergency Response Course," a ten day course to train State and federal radiological emergency response team personnel in techniques of responding to a wide range '

of radiological accidents conducted at the Nevada Test Site in Mercury, Nevada. Approximately 400 persons are trained each year.

Requests for enrollment in the above courses should be directed through your State Department of Emergency Services (Civil Defense) or your 12/20/85 14 FRN 10 CFR PART 71

[7590-01]

State Department of Health (Radiological Health Division). For further information about the courses, contact:

REF Training Program Manager FEMA National Emergency Training Center Emmitsburg, Maryland 21727 (301) 447-6771

d. NRC, through ORAU, offers --

A ten-week program for State health physicists, training about 20 participants per year.

e. Colorado Training Institute offers --

A 3-day seminar and a 2-week course on all phases of hazard-ous materials transportation incident response, including radioactive materials. Originally funded by a grant from DOT, but now an independent State-run program.

On a training related issue, the DOT highway routing regulation re-quires that drivers of vehicles-carrying spent nuclear fuel receive emer-gency action training within the 2 years preceding that transportation.

The training must include the properties and hazards of the spent nuclear fuel and the procedures to be followed in the event of an accident or other emergency. The required training also includes the following five subjects: (1) security en route; (2) communications; (3) radiological con-siderations; (4) response to contingencies; and (5) response to threats.

The regulation also requires the driver to have a copy of the mandatory I

route plan including telephone numbers which will access emergency assis-tance in each State to be entered. 49 CFR SS 177.825(c)-(d).

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3. NRC Regulation of the Carrier The petitioner's third allegation that "the NRC does not regulate the carrier or consider its safety record" fails to recognize that the DOT performs this function. DOT imposes regulations that relate to both the hazardous n&ture of the cargo and the safety aspects of the transport-ing vehicle. DOT also inspects and enforces against its carrier rules.

Although NRC considers that it has the authority under the Atomic Energy Act to regulate carriers insofar as they transport material regulated by the NRC, it has agreed under a Memorandum of Understanding with DOT dated June 8,1979 (44 FR 38690) that it will leave the development of carrier safety standards to DOT because of DOT's greater experience and expertise in that role.

On the issue of incomplete regulatory control, one State referred to a report issued in 1984 by the National Research Council of the consid-erations of a panel of experts on the subject of Social and Economic As-pects of Radiological Waste Disposal. On the issue of transportation of spent nuclear fuel, the panel "found that an underdeveloped regulatory framework currently exists for the transportation of spent fuel and high-level waste. The federal governmental agencies involved defer to each other, with primary responsibility essentially delegated to NRC's reactor licensees." The panel recommends "a careful evaluation of existing federal regulation of highway transport to assure that (a) a sufficiently broad i

I and uniform regulatory regime exists for the safe transport of radioactive wastes, (b) any redundancies and incompleteness in the existing NRC-DOT l

l regulations have been eliminated, and (c) the needs of States to control l

l safety on their highways are met." The State submits that the conclusions and recommendation of the report are warranted, and that adoption of the j Wisconsin petition would help the problem. The Commission has examined 12/20/85 16 FRN 10 CFR PART 71 l

[7590-01]

the National Research Council report and found it lacking in specifics which would support the generally unfavorable conclusions regarding regula-tion of the transportation of spent nuclear fuel.

A nuclear equipment manufacturer notes that the Wisconsin petition  !

is apparently based on the premise that the transport of spent nuclear fuel is not adequately regulated even though it is ole of the most heavily regulated transportation activities. The commenter argues that the basic regulatory system for transport of spent nuclear fuel has been demonstrated by experience nationally and internationally to be sufficiently encompassing to ensure protection of public health and safety. The proposed procedures for approval of spent nuclear fuel shipments would cause an enormous use of NRC and utility resources for little if any positive public gain. The Commission agrees that the same package and transportation standards are applied internationally and have proved to be adequate. However the systems (i.e., agencies or combination of agencies) that apply those uniform stand-i ards differ from country to country. The NRC is continually monitoring its relationship with the other agencies with which it shares jurisdiction in the United States, particularly the Departments of Transportation and Energy, and would value specifics as to where regulatory controls are either lacking or excessively overlapping.

4. Need for Individual Shipments In referring to spent nuclear fuel shipments over the last 18 months, the petitioner notes that "no Federal agency has considered the need for the shipments...." In enlarging on this same concept, the petitioner argues that "the utilities' rate payers may be exposed to substantial costs, the public in the vicinity of the route may be exposed to substantial safety i

12/20/85 17 FRN 10 CFR PART 71

! [7590-01]

hazards, and States and municipalities along the torte may be exposed to substantial liability and costs for emergency response without any oppor-tunity to question the propriety of the shipment." The petitioner requests that an applicant for approval of an individual spent nuclear fuel shipeent be iequired to demonstrate that "the proposed shipment is necessary to meet the requirements of the licensee's operating license or required minimum fuel storage capacity."

The Commission notes that the petitioner refers to both "the need for" and "the propriety of" individual shipments, but draws no distinction between the two phrases, using them interchangeably. No distinction between those phrases could likewise be developed from the public comments received.

The Commission, therefore draws no distinction between the phrases in its response referring only to the need for shipments.

A State agrees with Wisconsin's allegations that there are significant gaps in the regulatory program regarding shipment of spent nuclear fuel.

Specifically.

There should be a Federal policy designed to minimize spent nuclear fuel shipments prior to the operation of a commercial nuclear waste repository; and There should be a Federal regulatory system for evaluating the need for spent nuclear fuel shipments prior to the operation of a repository.

A State senator supports that view by noting that spent nuclear fuel shipments which have been and are being made to the Morris Storage Facility will have to be removed from Morris and transported again when the U.S. Government develops an interim storage facility or a disposal facility. He believes this raises the serious question of the necessity 12/20/85 18 FRN 10 CFR PART 71

[7590-01]

~

of shipments to Morris. An individual agrees by noting that shipments of spent nuclear fuel from Montecello, MO. to Morris, IL. are being made only for economic gain since the storage pool at Montecello has about 4 more years of space left in it at current use rates.

A public interest group raises an additional aspect that there should be consideration given to the need for the shipments and the safety and environmental risks associated with various routes, and relates that con-sideration to their belief that the training of fire fighters, law depart-ments, and hospitals is inadequate at this time.

A State summarizes its view that it is irrefutable that spent nuclear fuel shipments pose some risk and that the unnecessary and uncoordinated random shipment of those materials must be avoided. The State concludes -

that even after a comprehensive and reasonably predictable strategy for

spent nuclear fuel management has been developed and the impacts of ship-ments can be analyzed, a review of the need for such shipments must be

conducted and used as the basis for granting or denying authorizstion for i the shipments. - - -

On the other hand, a utility notes that local goverrvnents have imposed regulations in the past requiring the transporter to demonstrate a need for each shipment. The utility further notes that all such regulations have been struck down as being in violation of the interstate commerce clause of the U.S Constitution. Kassel vs. Consolidated Freightways Cor-poration of Delaware 450 U.S. 662, 1981 was cited.

A law firm representing multiple utilities comments that the Wisconsin petition proceeds from the two false assumptions that (1) spent nuclear fuel shipments are so dangerous or environmentally harmful that they should only be permitted in the event of dire need, and (2) NRC possesses the legal 12/20/85 19 FRN 10 CFR PART 71

[7590-01) authority to determine the "need" for proposed shipments. The commenter points to the Nuclear Waste Policy Act of 1982 and its requirement that the Department of Energy provide interim storage capacity prior to the establishment of a permanent high level wa.te repository for civilian nuclear power reactors that cannot reasonably provide adequate storage on site. This capacity is to be made available only to a person who is "dili-gently pursuing licensed alternatives to the use of Federal storage capa-

, city" including transshipment to another civilian nuclear power reactor owned by such person. The commenter believes that Congress thus expressly acknowledged the possible need for electric utilities to transship spent nuclear fuel. The commenter also referred to Public Law 96-295, which required that NRC provide for prenotification of spent nuclear fuel ship-l l ments to State Governors, as evidence that Congress specifically contem-

plated shipments of spent nuclear fuel prior to the operation of a reposi-tory. The commenter then points to the NRC and DOT regulations under which spent nuclear fuel shipments are authorized, regulations the adequacy of which have been reaffirmed on a number of occasions, and concludes that "any additional specific determinations by NRC as to the 'need' to trans-port would needlessly and unlawfully circumscribe the managerial discretion of the operators of licensed nuclear power plants."

And finally, a State agency perceptively notes that the issue of whether spent nuclear fuel should be transported is not an appropriate subject for resolution through the rulemaking process, but should be re-solved only by Federal legislative action.

The Commission agrees that there are certainly health and safety risks associated with the transportation of spent nuclear fuel, although NRC has analyzed those risks and found them to be small. The Commission I 12/20/85 20 FRN 10 CFR PART 71

[7590-01] l acknowledges that Congress has passed several laws, e.g., The Atomic Energy Act of 1954, as amended, The Nuclear Waste Policy Act, and The Hazardous Materials Transportation Act, which make it abundantly clear that some spent -uclear fuel shipments are expected and accepted in the public interest. But this fact cannot be taken as national policy that any and all shipments of spent nuclear fuel have been authorized by Congress.

In the NRC'., recent rulemaking to establish 10 CFR Part 53 " Criteria and Procedures for Determining the Adequacy of Available Spent Nuclear Fuel Storage Capacity," published in the Federal Register on February 11, 1985 (50 FR 5548), the issue was raised whether the Commission should give preference to onsite storage alternatives in determining the need for

~

Federal interim storage for a licensee. Consideration was given to the legislative history of the Nuclear Waste Policy Act to the effect that onsite storage of spent nuclear fuel should be encouraged and that transportation of spent nuclear fuel should be minimized.

The Commission took the position in that rulemaking action, and affirms it here, that it has no authority under Subtitle B of the

~

Nuclear Waste Policy Act to establish priorities for the pursuit of spent nuclear fuel storage alternatives in the context of a Part 53 l determination. If the Commission finds that one or more alternatives is feasible, the utility is not eligible to participate in the Federal interim storage program. The choice of which alternative to pursue will be decided elsewhere. The Commission noted that an earlier version of the legislation, H.R. 6159, contained a provision requiring that alternative be pursued on a priority basis, but that provision did not carry over to the final Bill.

As for the costs to taxpayers and ratepayers, the United States Supreme Court has determined that such concerns are not within the scope of the 12/20/85 21 FRN 10 CFR PART 71 1

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[7590-01]

NRC's authority. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 221-22 (1983).

In addition to the Commission finding on several occasions that the risks of spent nuclear fuel transportation are low, the Commission also i

explored the consequences of serious accidents which might cause the spent nuclear fuel shire'ng casks to fail. Based on the preponderance of avail-i able evidence, including recent destructive testing of a spent nuclear fuel cask based on a successful act of sabotage, the Commission has con-cluded that the consequences of a spent nuclear fuel accidental release are not catastrophic and therefore not a reason to disallow those shipments when the risks, i.e., the product of consequences and their probabilities, o

are small. The Commissicn does have a study underway on this subject, however, which will assess the accident resistance of real spent nuclear fuel shipping casks when subjected to the destructive forces associated with real accidents based on historical accident statistics. The study will evaluate the potential consequence of any accident in which destruc-tive forces exceed values implied by current regulations.

With risks low and potential consequences even from an improbable

severe accident less than catastrophic, there remains only one technical ,

principle to justify the imposition of additional controls, the "as low a: reasonably achievable" (ALARA) principle. This principle states that additional controls are justified if the cost of those controls does not exceed their benefits. In this case the benefits would be measured in terms of the value of normal and accidental exposures avoided. While the costsofthenewapprovakprocedureproposedinthepetitionhavenot been quantified (the petition did not seek to invoke the ALARA principle and public comments treated the subject only qualitatively), it is the Commission's judgement that, because of 55e small benefits available

' i 12/20/85 22 FRN 10 CFR PART 71 l

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[7590-01] l under any foreseeable circumstances, a favorable cost / benefit balance could not be obtained.

5. Opportunity for Meaningful Public Participation The petitioner's final allegation in support of the proposal is that "the public has no opportunity for meaningful input into the decision to i transport waste, as this decision is wholly within the discretion of the licensee." Petition at 5. The petitioner requests that the "NRC exercise its regulatory authority to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum...." Id at 1.

A State commenter reports that two public discussions held in advance of spent nuclear fuel shipments from the State had some constructive results. The utility involved was able to demonstrate that it had reviewed alternate means of addressing its storage problems, and State agencies, the utility, and the carrier were spurred by public concern to take safety precautions beyond the minimum required by federal regulations. Based on this experience, the State suggests three reasons for a positive response to the Wisconsin petition:

- Open discussion of the issues may result in a greater range of choices, both formal and informal;

- Fears that public participation would somehow get out of hand and undermine rational, technically-sound decision making are probably not realistic. Reasonable resolution leaves everyone better off; and

- If the NRC itself provides a public forum, resort to State and local government as a source of information and discussion is 12/20/85 23 FRN 10 CFR PART 71 i

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less likely. Legally futile attempts to ban spent nuclear fuel transportation by local ordinance can only generate local resent-ment and undermine Federal authority.

The Commission, together with DOT, has also attempted to est'ablish a dialogue with affected persons on the issue of spent nuclear fuel transportation. At a seminar in Chicago on July 31-August 2,1985, the NRC and DOT net with representatives of States, local governments, and Indian Tribes to discuss the problems and potential solutions associated with spent nuclear fuel transporhtion. A total of 275 people participated.

Another NRC effort to obtain public input is its contract with the Aerospace Corporation to study the institutional relationships and issues which arise from the shipment of spent nuclear fuel from the West Valley, New York former reprocessing plant now being decommissioned. Part of this study is to interview persons involved with the shipments including j Federal officials, State and local officials, industry representatives, and public interest groups. The results and conclusions of this study.---. __._

have not yet been presented.

Most of the public commenters who supported the Wisconsin petition also supported the formal hearing process which was part of the petition and on which the approval of the spent nuclear fuel shipment in question would in large part be based. For example, a State observes that members of the affected public have not been given an opportunity through the route-approval process to express their concerns about their own personal safety and the protection of the environment in which they live. The Wisconsin petition gives the public an appropriate opportunity to provide input into the decision making process. A public interest group complains 12/20/85 24 FRN 10 CFR PART 71

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4 that "it has been impossible to provide input into the decision making process for nuclear waste shipments," and believes that "if there is no public input the health and safety of the public will not be insured."

Some persons supporting and some persons opposing the petition registered comments against the formal hearings proposed. A utility writes that the rule as p.roposed is silent on whether the requirements would be repeatedly imposed for a specific shipping route even though approval was I

granted for a prior shipment, and could be construed so as to benefit individuals interested in making frivolous repeated requests for hearings for already established shipping routes. A State comments that the basic reason for the rulemaking petition is to allow more public input to the decisions regarding transportation of spent nuclear fuel. While the ,-

State encourages public participation in all aspects of interstate trans-portation, it believes the Wisconsin proposal would result in undue hardship on the shippar and carrier. The State believes that NRC and DOT provisions for public inout in years past have been adequate for route selection, and in fact the State has designated certain routes as preferred routes for

{

spent nuclear fuel shipments. The State's accident experience has been good iii recent years.

There was some division of sentiment among State and local officials on the times when public hearings would be most useful. Although it was not clear from the petition whether a series of shipments could be approved as a result of a single hearing or whether an individual shipment would be subject to the entire approval process by itself, some commenters made it clear that approval of series of shipments was preferred. For example, a commenting State favors a generic, rather than specific, examination of spent fuel shipments to establish generic criteria for designating routes 12/20/85 25 FRN 10 CFR PART 71

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and alternate routes, for establishing the need to ship, and for calcu-lating risks, but favors avoiding the possibility of a hearing each time spent nuclear fuel is shipped. A city endorses Wisconsin's request for individual approval of spent nuclear fuel shipments, for public comments on each request, and for environmental impact statements if required under federal law, rules and requirements, but would give NRC discretion to conduct a hearing or not when requested by a commenting person.

Another State supports the Wisconsin contention that the current NRC transportation rules be thoroughly reviewed by the Commission, including ample opportunity for State and public comment. Procedurally, however, the State supports a thorough public review only prior to any major campaign to ship radioactive wastes between two points, including an opportunity for affected States to participate in routing decisions. An understanding should also be reached with all affected States of the roles of all parties a

in inspection of shipments, emergency response, prior notification, and liability.

A State supporting _the.W1sconsin_ petition. suggests _the..following. _ . _ . . _ , .

i' revisions to the Wisconsin proposal:

i

(1) Allow for an application and approval / denial for a series of 1

shipments from one point of origin to one destination; and (2) Clarify whether an Environmental Impact Statement or an Environ-mental analysis will be required.

It is the Commissions view that, if an approval system as proposed

in the Wisconsin petition becomes necessary, it should probably be insti- i tuted for series of shipments rather than for individual shipments. In series of shipments the issues which have been proposed for close examina-l tion are normally the same for the entire series. The safeguards precau-tions, the need for the shipments, the specific route, the alternatives, 12/20/85 26 FRN 10 CFR PART 71 l

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4

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and the shipping cask are normally the same for all shipments in a series.

It would seem to be a waste of time and resources to reconsider the same specifics for each of a number of spent nuclear fuel shipments in a series.

And, lastly, some commenters seemed to express more of a need for an exchange of information than for a formal hearing where a shipment approval decision is at stake. A public interest group complains that the public does not have information as to the safety of the casks being used, the necessity of the shipments, the proper routes to take, or other life protection issues. The commenter does not believe that shipping i

spent nuclear fuel from one temporary location to another is a responsible policy, and urges that shipments be stopped until a more responsible policy can be,put into effect. And an individual supports the petition for its I

provisions allowing public input, believing that any economic activity affecting the economic and physical health of the public should be sub-ject to effective public input.

The Commission has been very open to public participation in the processes which established the present rules for transporting spent nuclear fuel. This includes public rulemaking proceedings for establishment of packaging standards in 10 CFR Part 71 begun on December 21, 1965 (30 FR 15748.),

l r for the general-license, package-approval system in 10 CFR Part 71 begun on November 20,1971 (36 FR 22134), for the establishment of standardized l impacts associated with the transportation of radioactive material, including spent nuclear fuel, to and from nuclear power plants begun on November 1, 1973 (38 FR 30203), and the reevaluation of NRC transportation regulations begun on June 2, 1975 (40 FR 23768). In each of these cases announcements were issued and public comments were solicited.

12/20/85 27 FRN 10 CFR PART 71

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[7590-01]

As with the radiosstive material transportation regulations promulgated by NRC, those adopted by the Department of Transportation (DOT) were also considered through public rulemaking proceedings. The DOT routing rule is an example where there were multiple opportunities for public partici-pation. An Advance Notice of Proposed Rulemaking was issued on August 17, 1978 (43 FR 3E492) soliciting public comments. A Notice of Proposed Rule-making followed on January 31, 1980 (45 FR 7140), followed by seven public hearings held in Philadelphia, Atlanta, Chicago, Denver, Seattle, Boston, and New York, and three additional public meetings in Akron, Ohio, Eugene, Oregon, and Union City, California. DOT received and reviewed over 1,000 public comments and reviewed over 1,600 pages of transcripts from the public meetings. This represents an extraordinary level of public participation.

V. Consideration of Comment Issues The public comments raise a number of issues not included in the Wisconsin petition, but which are related to the petition in various ways.

~ .. . - . ..

1. Disclosure of Safeguards Information 4

A utility suggests that the requirement for en applicant to demon-strate that he has fulfilled the 10 CFR $ 73.37 requirements for physical protection of spent nuclear fuel in transport is redundant since the regu-lation already imposes an obligation to comply with its provisions. The utility further suggests that if a licensee were required to make available for public inspection detailed information relating to security of the shipments, the purposes of 5 73.37 would be defeated. A state agency opines that adoption of the Wisconsin petition would compromise the security of spent nuclear fuel shipments by making known the actual shipment dates 12/20/85 28 FRN 10 CFR PART 71

~....L.L--_.-_-_. _.

. - . . _ . . ___'.L_-... . . 1.1^ _ . . . _ _ _ _ _ _ . - . . _ _ _ _ _ - _ , - . _ _ _ . - , _ , . . _ _ , , ,

[7590-01]

and times during the public hearing process. An individual comments that announcement of proposed shipments in the Federal Register would breach some needed security and thereby increase the risk of sabotage or theft of the shipment.

The Commission does not agree with the utility's comment that there is no difference between having a requirement for a physical protection program in 10 CFR $ 73.37 and having the NRC staff review that program to assure that it satisfies those same requirements. As with individuals working in any speciality, the NRC staff develops expertise from reviewing and discussing a large number of physical protection programs which the staff can then apply to its review of other programs. In the Commission's judgement this process results in greater assurance that the physical protection requirements of 10 CFR S 73.37 are being adequately applied. In fact, an NRC staff review of a licensee's physical protection program for transportation of spent nuclear fuel has for some time been done when the licensee applies for his route approval under S 73.37(b)(7).

The Commission does agrie Vith the comi s ters'that'public~ hearings m = - -

~ -

j in which details of a particular shipment and the security arrangements regarding the shipment are discussed might result in increasing the risk of its sabotage or theft.

(

I

2. Extendina Scope of Wisconsin Petition A State recommends that the concept proposed in the Wisconsin petition be extended to "other highly radioactive material that the Commission...

l determines by rule requires permanent isolation" under the provisions of the Nuclear Waste Policy Act. The same commenter urged that the same rules should also apply to spent nuclear fuel and high-level waste trans-portation activities undertaken by the U.S. Department of Energy. A second 12/20/85 29 FRN 10 CFR PART 71 l

l

[7590-01]

State also endorses the amendments to 10 CFR Part 71 proposed by PRM 71-10, and is particularly concerned that the amendments should apply to Department of Energy shipments of spent nuclear fuel pursuant to the Nuclear Waste Policy Act. The State intwrprets 10 CFR Part 71 requirements as applying to the Department of Energy shipments.

A public interest group supports the Wisconsin petition but asks that protection of the environment be added to the proposed consideration of minimizing radiological exposures. The group also requested that the

- Commission, on receipt of a request for hearing while considering an indi-vidual licensing case, should be required to hold a hearing within 60 days in the State from which the request was received.

Whether or not the NRC transportation rules apply to spent nuclear fuel shipments made by the Department of Energy (DOE) is a matter of law, not NRC decision. Normally, DOE shipments of all kinds are exempt from j NRC regulation by the provisions of the Energy Reorganization Act of 1974, as amended. The Nuclear Waste Policy Act has provisions which subject some DOE shipments to NRC regulation under certain conditiovis,- however, 1

and the provisions of that law will prevail.

l If it makes sense to apply the provisions of the Wisconsin petition to shipments of spent nuclear fuel, it would probably also be sensible to apply them to shipments of other types of radioactive materials, and other hazardous material of all types, where the nature of the cargo presents a potential for serious consequences, if released. However, as noted earlier, the Commission has found no substantial arguments to support the provisions of the Wisconsin petition, i

12/20/85 30 FRN 10 CFR PART 71

_ _ _ _ - _- = =:z: - -_ - _ - _ . _ . _ _ _ _ _ _ - . _ . _ _ - - _

[7590-01]

3. Miscellaneous Support For and Opposition to the Petition Many of the commenters were forceful in their support for or opposi-tion to the petition without providing much new information which would assist the Commission in deciding the issue. A sampling of those comments follows:

a. Support For the Petition

- A public interest group supports the Wisconsin Petition by asking for a public rulemaking proceeding to examine the issues raised by Wisconsin, and for a hearing to be held in Wisconsin. The reasons for concern are listed as the following:

1. The lack of consideration of the need for spent nuclear ."'

fuel shipments;

2. The lack of examination of alternatives to the shipment;

3. The lack of physical testing of casks;

4. The lack of demonstrated emergency response capability in case of a radiation-accident;-end. - - - . -

5. The lack of a clear evaluation of alternative routes.

- Another public interest group supports the Wisconsin peti-tion because of its concern that there is no Federal agency considering the safety of the public or environmental risks involved in radioactive waste shipments.

- A State Representative believes that "despite the extreme hazard of these radioactive materials the safety of these shipments has not been adequately assured." He cites the failure to determine the need for the shipmente, safety and environmental risks associated with specific routes, and 12/20/85 31 FRN 10 CFR PART 71

i

[7590-01]

lack of adequate emergency response capability as the rea-sons for inadequate safety. He concludes by stating that all citizens subject to the hazards of these highly radio-active shipments have the right to be assured that all I

possible steps are being taken to assure their safety.

An individual supports the Wisconsin petition based on his belief that no adverse or ill effects will be realized by power companies or shippers of spent nuclear fuel.

b. Opposition To The Petition An industry commenter makes the point that the petitioner has not identified a need for adoption of the proposed rule, and the petition contains no new data or information which would point out inadequacies in the current regulatory

, basis. The commenter states his belief that the current transport regulations of the Commission and the correspond-ing regulations of the U.S. Department of Transportation provide significant1y'more than adequate assurances of the- -

public health and safety.

- A utility, in addition to finding the Wisconsin proposal inappropriate and unneceMsary, finds the language of the proposal so vague in places that one could not demonstrate compliance. The utility also believes that spent nuclear fuel transportation has relatively benign credible accident consequences compared to many chemical shipments which are not subject to such scrutiny, and that none should be sub-ject to the proposed rules.

l j - A utility referred to a report by Drs. Courtney and Lambremont l of Louisiana State University on a review of 190 scientific 12/20/85 32 FRN 10 CFR PART 71 i

[7590-01]

and technical papers examining radioactive material trans-J portation over an 18 year period. The reviewers concluded that "the risk to the general public from the transporta-tion of radioactive materials is extremely low. The exten-sive amount of work which supports this conclusion reflects a remarkable international consensus."

- A utility believes the Wisconsin proposal is unnecessary given (1) the emphasis on cask design safety; (2) the secu-rity provisions of Part 73; (3) the spent nuclear fuel considerations in reactor licensing hearings; and (4) the l regulations of the Department of Transportation. The util-

- ity argues that there has been no showing that an additional evaluation would provide any increased public health and safety protection.

- A representative of an Indian Tribe noted that the Wisconsin proposal omits any reference to a Tribal government's interest in applications for approval of spent nuclear fuel shipments and is thus inconsistent with policies under the Nuclear Waste

~

Policy Act which generally encourage Tribal consent and consul-I tation in the decision making process.

- A utility, after considering the NRC regulatory framework, safeguards / safety studies, and the safeguards / safety record, recommends that current requirements be reduced.

( VI. NRC Conclusion The petition was examined in the context of the Memorandum of Under-standing (MOU) between NRC and DOT dated June 8,1979, by which transpor-

tation regulatory functions are divided between the two Agencies in the 12/20/85 33 FRN 10 CFR PART 71

= __ _ _ _ _ , _ _

[7590-01]

i interest of completeness and avoidance of duplication of effort. Where the MOU calls for the DOT to lead in some particular area, such as in the regulation of carriers of radioactive material and the routes over which I

they travel, NRC does not consider its regulations or its regulatory pro-grams to be deficient because they do not duplicate that control. Taken in this context, the Commission believes that the controls exercised and the support available under the combined programs of NRC, DOT, DOE, FEMA and the States are sufficient to provide adequate assurance against unreasonable risk to the health and safety of the public. The allegations of the petition are therefore not accepted by the Commission as adequate

~

justification for the changes requested in the petition. In regard to j

the petitioner's concern with costs to taxpayers and ratepayers, the United States Supreme Court has determined that the Atomic Energy Act does not give the NRC the authority or responsibility to control financial risks to utility ratepayers.

For the above reasons, the NRC has denied this petition.

Dated at Washington, DC, this day of , 1986.

For the Nuclear Regulatory Commission.

Samuel J. Chilk, Secretary of the Commission 12/20/85 34 FRN 10 CFR PART 71 71 1 Z Z_1 1"~TT _ _.;'iT. ~ T' 1 _ T..__ l l~;1 Z Z Zl_ ____ _ __ _ ._ ._ _ . _ _ _ _ _ . . _ _ _ _ . _ _ _ _ _ _ . ,

Enclosure C Draft Congressional Letter

Dear Mr. Chairman:

Enclosed for the information of the Subcommittee is a copy of a Notice of Denial of Petition for Rulemaking to be published in the Federal Register, and a public announcement concerning that denial. The petition was submitted by Carl A.

Sinderbrand, Assistant Attorney General, on behalf of the State of Wisconsin.

The petitioner requested that the NRC initiate a new procedure to specifically approve individual spent nuclear fuel shipments, taking into account the need, safety, and propriety of each shipment and affording a mechanism for public input to each approval decision. In support of this request, the petitioner alleges a number of deficiencies in the transportation regulatory program of the NRC and of the entire Federal regulatory system.

The NRC has examined those alleged deficiencies and the substance of public comments submitted in support of and in opposition to the petitioner's request, and, for reasons discussed in the enclosed Federal Register Notice, has found the petitioner's justification insufficient for the requested changes. There-fore, the NRC has denied the petition for rulemaking.

Robert B. Minogue, Director Office of Nuclear Regulatory Research 08/05/85 1 CONG LTR ENCL C

DRAFT g/]({05U/W O

, l ggpf 7 ()6LIc 0 A/t/4)addlC5 M & T NRC DENIES PETITION FOR ADDITIONAL REQUIREMENTS GOVERNING SPENT NUCLEAR FUEi. SHIPMENTS The Nuclear Regulatory Comission has denied a petition from the State of Wisconsin requesting the agency to ravise its regulations governing the transportation of spent nuclear fuel.

In the petition, Wisconsin asked the Comission to expand its requirements to provide for an assessment of the safety and need for individual spent nuclear fuel shipments and to provide an opportunity for public participation in the approval process.

At the present time, the NRC approves the design of casks used to transport spent nuclear fuel and permits the use, under a general license, of an approved design by anyone registering to use it. In addition, the agency ,

has requirements, including routing approval, to protect shipments of spent fuel from theft and/or sabotage.

1 In addition, the Departments of Transportation and Energy, the Federal Emergency Management Agency and the individual states have programs applicable to shipments of spent nuclear fuel.

i After considering the issues raised in the petition in the light of these ongoing programs and the public coments received on the petition, the

~

Commissio'n has concluded:

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. DRAFT (1) that the existing regulatory framework governing spent nuclear fuel shipment's provides adequate assurance that the public and the environment are protected from unreasonable risks; (2) that the petition does not contain adequate justification for the changes proposed; and (3) that the Commission does not have the authority or responsibility, under the Atomic Energy Act, to control financial risks to utility ratepayers.

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00CKL' d .Si; ,, Ed Garvey 123 West Westengton Avenue PW.(si Deputy Attomey Generaf SeeHeng Address: P.O Som 7457 l naam. Weconm s3707 December 13, 1984 Mr. Samuel Chilk, Secretary United States Nuclear Recrlatory Commission Washington, D.C. 20555 ,

Re: Petition for Rulemaking by the State of Wisconsin

Dear Mr. Chilk:

Enclosed please find a Petition for Rulemaking, filed on behalf of the State of Wisconsin. The Petition requests that the United States Nuclear Regulatory Commission (NRC) establish a regulatory process for the evaluation and approval of proposed shipments of irradiated reactor fuel.

As indicated in the Petition, there is presently no forum available to the public to consider the need, safety or propriety of proposed spent fuel shipments. Moreover, the decision whether to transport these wastes is currently left to the discretion of the licensee. The proposed rule would: 1) prohibit unapproved shipments; 2) require the NRC to evaluate and pass upon the propriety of the ship-ment; and 3) provide an opportunity for public input into that decision.

We ask that you docket this Petition and publish the proposed rule in the Federal Register at your earliest convenience. Thank you for your attention to this matter.

Sincerely, D A. ' '

Carl A. Sinderbrand Assistant Attorney General CAS:jak cc: Nunzio Palladino, Chairman Anthony S. Earl, Governor S fY -

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CM sit [D UNITED STATES OF AMERICA 1.itdi NUCLEAR REGULATORY COMM I ,

BEFORE THE COMMISSIONERS

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In the Matter of the Petition of the State l of Wisconsin for the Adoption of a Rule DOCKET NO.

Regulating the Transportation ,

of Irradiated Reactor Fuel T

PETITION FOR RULEMAKING The State of Wisconsin, petitioner, hereby petitions the United States Nuclear Regulatory Commission (NRC), pursuant to 5 U.S.C. sec. 553 and 10 C.F.R. sec. 2.802, to exercise its rulemaking authority and adopt a rule expanding the scope of its regulations governing the transportation of irradiated reactor

. fuel. Specifically, the petitioner requests thra t the NRC exercise its regulatory authority to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum prior to approval of the shipment and roui .

I. Text of Proposed Rule.

Advance approval for transportation of irradiated reactor fuel.

(a) No licensee may transport, or deliver to a carrier for transport, in a single shipment, a quantity of irradiated reactor Q--Y!b&&k'l? 5(hJA smbm E

fuel in excess of 100 grams in net weight of irradiated fuel, exclusive of cladding or other structural or packaging material, which has a total external radiation dose rate in excess of 100 rems per hour at a distance of 3 feet from any accessible surface without intervening shielding, unless that licensee first obtains the approval of the Commission (b) An application for approval of a shipment of irradiated reactor fuel shall be made in writing at least 120 days prior to the proposed shipment, and shall demonstrate that:

(1) The applicant has fulfilled the requirements of 5 73.37; (2) The proposed shipment is necessary to meet the requirements of the licensee's operating license or required minimum fuel storage capacity; (3) The proposed route complies with all applicable DOT safety and routing regulations; (4) There are no route-specific conditions or hazards which create unique risks of accidents, sabotage or radiological exposure; and (5) The applicant has evaluated alternatives to the proposed shipment and alternative routes and has demonstrated that the proposed shipment is the alternative for handling the irradiated reactor fuel which provides the least risk of radiological exposure to the public.

(6) The proposed shipping cask is shown to be capable of withstanding all reasonably foreseeable incidents along the proposed route which could interupt the shipment.

Ene ~v we 6

(c) (1) Upon rceipt of the application, the Commission shall provide notice of receipt of , the application in the federal register and to each state along the proposed route.

(2) Any interested person, including any state or municipality along the proposed route, may submit written comments and request a hearing concerning the applicant's compliance with subsec. (b) (1) , within 30 days af ter publication of the application in the federal register. ,

(3) The Commission shall issue a decision on the application within 60 days af ter completion of any hearing held under subsec. (b) (2) .

(d) The Commission's action under this section is an action for which an environmental impact statement may be necessary, in accordance with 10 C.F.R. S 51.5 (b) .

II. Grounds and Interst.

Petitioner is a state which has experienced the transportation of irradiated reactor fuel both to and from the state and through its botders, over both highways and rail. The State of Wisconsin has an interest in protecting its citizens from unnecessary risks associated with the transportation of hazardous substances, including spent nuclear fuel. The petitioner also has an interest, as the entity which is pragmatically responsible for immediate emergency response, in ensuring that transporters of spent fuel have adequately prepared for potential emergencies.

bc -own E

III. Statement in Support of Petition.

The transportation of irradiated reactor fuel is an activity of significantly increasing frequency. Throughout the United States, nuclear reactor f acilities are reaching maximum ~ capacity in their spent fuel storage pools. While research and development continue on alternative storage technologies, the only currently available licensed alternatives to relieve this pressure are expanded pool storage or shipping waste to of f-site storage facilities. Coupled with the decreasing on-site storage capacity is the reduction in away-from-reactor storage capacity. The Nuclear Fuel Services facility at West Valley, New York has begun to be decommissioned, which has resulted in the return of substantial quantities of spent fuel to the generating facilities. The General Electric facility at Morris, Illinois remains as the only off-site storage alternative.

l During the past eighteen months, there have been numerous shipments of irradiated reactor fuel to and through Wisconsin.

Beginning in August 1983, Wisconsin has received in excess of 200 highway shipments of spent fuel from the West Valley and Morris facilities. Northern States Power Company currently intends to transport thirty shipments of spent fuel via rail through Wisconsin from its Monticello, Minnesota reactor facility to Morris, Illinois. These shipments began in November 1984 and are expected to continue over the next five years.

In each of these shipping campaigns, no federal agency has considered the need for the shipments, the safety or environmental risks associated with the selected routes or the L m E

_ -_- = _ _ _ _ _.

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. l propriety of exposing the public to these risks. Nor does any agency require adequate safeguards to protect against emergencies. Unless the NRC exercises its authority under the Atomic Energy Act to regulate and scrutinize these shipments, it is unlikely that any federal agency will.

Three federal agencies could potentially influence spent fuel transportation decisionmaking. The Department . of Energy (DOE), under the Nuclear Waste Policy Act of 1982, 42 U.S.C. sec.

10101 et sea. is responsible for the long-term storage and disposal of commercially generated spent fuel. 42 U.S.C. sec.

10131(b). In its draft Mission Plan, prepared pursuant to 42 U.S.C. sec. 10221, the DOE has indicated that its responsibility .-'

for spent fuel will not begin until it accepts title to the waste ,

in 1998. Moreover, DOE has specifically informed the State of Wisconsin that its policy against unnecessary shipments of wastes does not apply to NRC licensees prior to 1998, unless such wastes 7 are being shipped to a federal interim storage facility (which do not yet exist).

The Department of Transportation (DOT) also exercises jurisdiction over spent fuel transportation, pursuant to the Hazardous Material Transportation Act, 49 U.S.C. secs. 1801 e_t seq. DOT has established generic, generally applicable rules for highway transportation of radioactive waste. 49 C.F.R. Part 177. These rules do not address route-specific risks or need.

DOT has not yet adopted rules governing the routing of rail or barge shipments, but has only established general rules covering packaging, equipment and handling. 49 C.F.R. Part 174 and 176.

Ends E-

'-~

l Nevertheless, DOT has uniformly held l that state efforts at i

meaningful regulation aire inconsistent with and preempted by

) these federal regulations. 4 9 C . F. R. Pa r t 177, App . A. _See also  !

Inconsistency Rulings IR-7 through IR-15.

The NRC has express statutory jurisdiction over transportation of spent fuel. 42 U.S.C. secs. 2131 and 2133 expressly require that one must obtain a transportation. license '

prior to any shipment of irradiated reactor fuel. In practice, however, NRc has not required a specific transportation license. Rather, it has by rule created a general license for transportation. 10 CFR sec. 71.12. The NRC has previously held that it will not consider a license amendment for specific waste shipments. In the Matter of Commonwealth Edison Company, et 31.,

Docket No. DD-83-14, decided September 30, 1983.

The NRC currently regulates spent fuel shipments to a limited extent. Under 10 CFR sec. 71.12, the licensee must have an approved quality assurance program under 10 CFR Part 71,

_ Subpart B. Additionally, under 10 CFR sec. 73.37, the licensee must provide for notification to the NRC and local law

. enforcement agencies, provide escorts, submit limited emergency plans and obtain approval of the selected route. However, the NRC does not independently consider the safety of the particular route, does not evaluate the potential safety and environmental risks of the shipment or the need for the shipment and only gives cursory attention to emergency planning. Additionally, the NRC does not regulate the carrier or consider its safety record.

This discussion of the present scheme of federal regulations reveals a significant gap in the regulatory program. No agency E~ ore G

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

I considers risks associated with specific routes. No agency considers the need for the shipme.nt or the propriety of the shipment in light of potential risks. The public has no opportunity for meaningful input into the decision to transport waste, as this decision is wholly within the discretion of the licensee. Thus, the utilities' ratepayers may be exposed to substantial costs, the public in the vicinity of the route may be exposed to su'bstantial safety hazards and states and munici-palities along the route may be exposed to substantial liability and costs for emergency response without any opportunity to question the propriety of the shipment.

The 'NRC has the primary authority to protect against the risks of radiation exposure. 42 U.S.C. secs. 2021 and 2201; Pacific Gas & Electric Co. v. State EnerqY Resources Conservation

& Development Comm., 103 S. Ct. 1713, 1726 (1983). It has the express authority and responsibility to regulate the transpor-tation of irradiated reactor fuel. As shipments become more frequent, increasing the risk of exposure, it is incumbent ~upon 1

l NRC to strengthen and enhance its regulatory program, to fullfill l

its statutory directive.

CONCLUSION For the reason stated herein, the State of Wisconsin respectfully requests the NRC to adopt the rule set forth in Section I herein, to provide the regulatory agency and the public the opportunity to evaluate the propriety of spent fuel l Wn wE

shipments. The State of Wisconsin further requests that the NRC refrain from approving the routes for any shipment of irradiated reactor fuel until the requested rule has been promulgated.

Dated this / day of December, 1984.

BRONSON C. LA FOLLETTE Attorney General CARL A. SINDERBRAND  ;

Assistant Attorney General l

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Attorneys for Petitioner l

l Department of Justice i Post Office Box 7857 i Madison, Wisconsin 53707-7857 (608) 266-3936 s

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ENCLOSURE F Public Comments t

Comment Number Commenger -

1. Wisconsin Radioactive Waste Review Board

2. Stockbridge-Munsee Community

3. Paul W. Shafer

4. Enery Nemethy

5. Friends For A Non-Violent World

6. No Comment Number 6

7. Duke Power Company

8. Nevada Nuclear Waste Project Office

9. Utah High Level Nuclear Waste Office

10. Dawn E. Alien

11. Illinois State Senator

12. Illinois Department of Nuclear Safety

13. City of Chicago

14. Earth Protector

15. Nebraska Public Power District

16. Idaho Governor

17. League Against Nuclear Dangers

18. Illinois Attorney General

19. Northern States Power Company

20. Colorado Governor

21. Middle South Services, Inc.

22. Michael J. Riegert (OTIS)

Public Comments (cont'd)

Comment Number Conunenter

23. LeBoeuf, Lamb, Leiby and MacRae

24. GPU Nuclear Corporation

25. Badger Safe Energy Alliance

26. Warren A. Viehl

27. Wisconsin Radioactive Waste Review Board

28. Wyoming Governor

29. Sierra Club

30. Carolina Power & Light Company

31. Nebraska Director

32. Illinois General Assembly

33. Margel R. Johnson

34. New Mexico Governor 1

35. General Electric Company

36. Lakeland Audubon Society, Inc.

37. Boston Edison Company

38. California Highway Patrol

39. Washington Nuclear Waste Board

40. Delaware Division of Environmental Control

41. Ohio Governor

42. North Carolina Governor 43; Ellen Brooks

44. Texas Nuclear Waste Programs Office

45. Tennessee Valley Authority Enclosure F

DOCKET NUMBER PETm0N RULE PRM 12-/d [

STATE OF WISCONSIN t d,cNOh$WWIi(NNENT5/ hi - [  ;

RADIOACTIVE WASTEREVIEWBOARD s21 rennereu,is,ng

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110E Ma,n Street

.*. Madison. WI S3702 (606) 266-0697 (606) 267-7615 December 26, 1984 Mr. Samael Chilk, Secretary United Etates Nuclear P.egulatory Commission Washington, D.C. 20555 RE: PETITION FOR RULEMAKING BY THE STATE OF WISCONSIN

Dear Mr. Chilk:

On behalf of the Wisconsin Radioactive Waste Review Board, I wish to express strong support for the Petition for Rulemaking, filed on behalf of the State of Wisconsin, dated December 13, 1984.

The petition correctly expressed the concerns of the people of Wisconsin in the matter of regulating the transportation of irradiated reactor fuel, and the Radioactive Waste Review Board supports the Attorney General's efforts in this matter.

I also bring to your attentien a resolution that was approved by the Radioactive Waste Review Board on September 13, 1984 In the resolution, the Review Board expressed six major concerns about th Northern States Power (NSP) rail shipments from Monticello, MN, to Morris, IL, which travels along the Wisconsin side of the Mississippi River:

l

• • Wisconsin may not have the necessary emergency preparedness to deal with even a minor accident involving high-level radioactive waste:

! ** The shipping casks that are being used have not under8one actual testing:

l

• • No Federal EIS was prepared for the proposed rope, and_ alternative routes which would avoid paralleling the Mississippi River wer'd hot -3N .*4 seriously considered: #'

• • There is some question regarding Burlington Northern Railroad's safety record and recent ccidents are currently under investigation:

i l i

• • NSP has not demonstrated that these shipments are necessary at this time:

• • Alternatives to shipping may be feasible, pose.less risk, and be cost- -

efficient.

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A copy of the resolution is enclosed for your information.

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. December 26, 1984 P g? 2 Although NSP has chosen to virtually ignore the Review Board's request to delay the chipments until the concerns are addressed, and indeed hes begun the. shipments, our y concerns are as valid today as they were when the resolution was passed.

Throughout the route-approval process, the affected public has not been'given an opport nity to express its concerns about their own personal safety and the protection of the environment in which they live. The Wisconsin petition gives the public an cppropriate opportunity to provide input into the decision-making process.

We look forward to further supporting the Wisconsin petition when the proposed rule is published in the Federal Register and public hearings are conducted.

Sincerely, Stete Senator Joseph Strohl Chair 2an Wisccasin Radioactive Waste Review Board JS: mis

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Madison. WI 53702 RESOLUTION APPROVED BY THE (606/266- s 7 RADI0 ACTIVE WASTE REVIEW BOARD (606/267-7615 9/13/84 WHEREAS: Northern States Power is planning to ship high-level radioactive waste from its nuclear reactor in Monticello, Minnesota, on the Burlington Northern Railroad through Wi.consin to a temporary storage facility at Morris, Illinois, and WHEREAS: The State of Wisconsin may not have the necessary emergency prepared-ness to deal with even a minor accident involving high-level radio-active waste, and WHEREAS: The shipping casks that are planned to be used have not undergone actual testing, and WHEREAS: No Federal EIS has been done for the proposed route, and alterantive routes which would avoid paralleling the Mississippi River have not been seriously considered, and WHEREAS: There is some question regarding Burlington Northern's safety record, ._

and recent accidents are currently under investigation, and WilEREAS: NSP has not demonstrated that these shipments are necessary at this time, and WHEREAS: Alternatives to shipping may be feasible, pose less risk, and be cost-efficient.

Therefore, be it resolved that:

I The Radioactive Waste Review Board seek a Federal EIS on the project.

And be it further resolved that:

The Radioactive Waste Review Board oppose NSP's proposed shipments from Monticello to Morris at this time.

l And be it further resolved that:

1 The Radioactive Waste Review Board ask NSP in writing to delay the proposed shipments until the above concerns can be resolved.

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SOWLER. WISCONSIN 54416 FI 0F SECRETAw1 February 20, 1985 ggAvft' Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docketing and Service Branch Docket No: PRM-71-10 To Whom It May Concern:

This is to comment on the State of Wisconsin's petition to the Nuclear Regulatory Commission to establish a regulatory process for the transportation of nuclear waste through the State.

Specifically, tha petitioner requests several amendments to 10 CFR Part 71, relating to the advance approval for trans- t portation of irradiated reactor fuel. Subsections (C) (1) ( 2) ,

of the proposed rules would require the Commission when it t receives an application to transport nuclear waste, to issue notice to "... each au ta along the proposed route..." and to permit " interested person (s) , including any state or municl e ality along the proposed route..." to submit written comments or request a hearing on the application. The ommission of any reference to a Tribal government's interest in such applications is inconsistant with the policies under the Nuclear Waste Policy Act of 1982, P.L.94-425 (codified at 42 U.S.C. 10101, et. seq.) which generally encourage Tribal consent and consultation in the decision-making process.

Because of this ommission, the Stockbridge-M'unsee Community, a federally recognized Tribe in the State of Wisconsin, respectfully opposes the proposed rules.

Thank you for your time and consideration to these comments.

Sincerely, bl -

/ f Kimberly M. le e - A f/i el -, / C. -

Stockoridge'- unsee Community N N N f'o'/ i Tribal Attorney KMV/esk

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DOCKET NUMBER 4 PETITION RULE PRM7/MO (68FA.4BW)e February 26,.1986 Secretary of the Commission *d U. S. Nuclear Regulatory Ccommission Washington, D. C. ,

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Attention: Docketing and Service Branch , ]

Sub. lect: Petition for Proposed Rulemaking 10 CFR&71 ID liet No. PIM-71-101

Dear Sir:

h proposed change to 10 CFR 71, petitioned by the State of Wisconsin, is unnecessary and may in fact be a violation or contradiction of numerous imes wM 6 ere in effect. The proposed change to 10 CFR 71 would hinder electricat power production from commercial nuclear power plants, which could i result in decreased electrical availability to the public and/or subsequently increased electricity costs to the consumer. Currently, the transportation of spent nuclear fuel is governed by 49 CFR 1.53, Appendix A, and the general j requirements for packaging and transportation of fissile materials are governed by 49 CFR 173.451-173.459.

Transportation casks, which are used to transport fissile materials, must

pass tests which are outlined in 49 CFR 173.467-173.471 and 10 CFR 71.12(b).

The offices which are responsible for administering the requirements and approving casks, which have passed the testing requirements, are the Materials Transportation Bureau, Office of Bazardous Materials Regulations

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(Olpet), U. S. Department of Transportation, Washington, D. C. 20590, and the Transportation Certification Branch Division of Fuel Cycle and Material l

Safety ()DISS), U. S. NBC, Washington, D. C. 20555. The safety and economic aspects for interstate transportation of radioactive materials was formerly

! controlled by the Interstate Commerce Commission (ICC). With the Department of Transportation Act of 1966, the U. S. DOT has the regulatory responsibility for safety for the transportation of radioactive materials by 511 modes of transport in interstate comerce and by gli r.eans, except postal shipments. Under the Atomic Energy Act of 1964 (Public Lee 83-703, as amended, and 68 Stat. 919, as amended), the U. S. NBC also has responsibility for safety in possessim and use, including transport, of special nuclear -

materials. Casks which have been approved for the transportation of irradiated special nuclear material have been extensively tested by various national laboratories, as subcontracted by U. S. DOB and private enterprise.

These tests are fully documented, and many of these tests have been filmed or photographed. Since the early 1950's, there have been many thousands of shipments of irradiated fissile material within the United States. These shipments have been principally land shipments via rail or trucking. There has never been a transportation accident which has resulted in public injury due to the release of radioactive material. Numerous docusents have been published which indicate that the probability of radiation injuries due to l the transportation of high activity irradinted fissile material is miniscule.

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transportation accident in Wisconsin, which resulted in a release of radioactive material, multiple response agencies would Lamediately be available to provide public protection from ionizing radiation. These include the Wisconsin Department of Health and Social Services radiation protection personnel, as governed by Wisconsin State Statute 140.50-140.61 (Administrative Code U.S.S. 157), the U. S. NRC Regional Office Incident Response Team, the U. S. Department of Energy Emergency Response Team (ex.

Argonne National Laboratory), and utility health physicists and engineers, all of whom are highly trained radiological protection specialists.

The proposed radiation dose rate limit of 100 Bem per hour, at a distance of 3 feet from the eccessible surfaces, without intervening shielding, without Commission approval for transportation, has no technical merit and is specifically designed to hinder all spent fuel shipments from nuclear power facilities irrespective of physical decay time. A more reasonable surface dose rate would be 10,000 Ram /hr at 3 feet, given the engineering design integrity of the transportation casks which have been tested and approved for the shipments of irradiated spent fuel. The most reasonable limits, with more than sufficient safety margins, are those test criteria which are currently found in 10 CFR 71.73, " Hypothetical Accident Conditions."

In cor.clusion, the proposed change to 10 CFR 71, as petitioned by the State of Wisconsin, could require changes to other existing regulations and would result in adverse consumer economics, without significantly improving public safety.

faul ul Paul W. Shafer 426 W. Decker St.

Viroqua, WI 54665 PWS:dh Attachsenta cc - (all w/attachmants)

1. Mr. L. O. McDonnell/Mr. E. O. Brien WI DESS, Section of Radiation Protection P. O. Box 309 Madison, WI 53701

2. Mr. D. Johnerud 4. Mr. M. Langhus WI 96th District Assemblyman Vernon Co. Republican Party Capitol Building 118 S. Dunlap St.

Madison, WI 53702 Viroqua, WI 54665

3. Mr. B. Rude 5. Mr. T. Thompson WI State Senator Minority Senate Leader Capitol Building WI State Senator Madison, WI 53702 Capitol Building Madison, WI 53702

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. . I 4866 Federal Register / Vol. 50. No. 23 / Monday. February 4.1965 / Prope ... Rules would not be a major rule as defined in Vietnam and is a resident of the said Administration. U.S. Nuclear Regulatory section 1(b) of F.O.12291. countria. Commission. Washington. DC 20555.

IJet of Subjects in a CFR Part 212 (4) fo'eif8#0V8f8m'n'0/ficiol8 in N etition P and copies of comments 4 tansst. lf an alien is of the class may be inspected and copied for a fee et Administrative practice and described in section 213(d)(8) of tne Act, the NRC Public Document Room.1717 H procedure Aliens Foreign officials only a valid unexpired visa and a travel Street NW., Washington, D.C.

Passports and vises Travel restnctions. document valid for entry into a foreign ron rusmean seconssatsoes coerracT:

c untry fw at least 30 days from the John Philips. Chief. Rules and Accordingly. it is proposed to amend date of admission to the United States Procedures Branch. Division of Rules Chapter I of Title e of the Code of .

Federal Regulations as follows:

are mquind. and Records. Office of Administration.

U.S. Nuclear Regulatory Commission.

PART 212-DOCuteENTARY ISeca me and 212 of the Immieration and Washington. DC 20555. Telephone:301-REQUIREldENT 800Niedid6 GRANT 5; Netsemality Act, u amended (e UJI.C.1103 403-7000 or Tou Free 300.,3e6-8642.

WAIVERS. ADid:SSION OF CERTAIN ""d3I880 Deted:Jemmary 22. tees.

many sosponesatsose  !

wannanenam: s AUENS; Pm Alan C. Nelsen, g,3,ckgygu,d

1. In 2111. paragraph (e) would be Consusasemer.Immiprorion med

• revised to reed as foUows:

• NaturchascanSernce. W etitioner P points out that the

[FR Doc.85-200 Fumi 3-1-ear, tes am) transportation of irradiated reactor fuel jatti & _ _ , resguirements for con u m is an increasingly significant activity because nuclear reactor facilities are reaching maximum capacity of their (e) Direct tionsits-(t) Transit spent fuel etorage pools. AdditionaUy.

without viso. A peuport and viss are NUCLEAR REGULATORY there is a reduction in away-from-not required of an alien who is being COHed4SSION reactor storage, with the General transported in immediate and Electric facility at Morris. Illinois, continuous transit through the United 10 CFR Part 71 offering the only off-site storage States in accordance with the terms of (Daam us. PRu-71-MI

• I * * 'i'

an agreement entered into between the Since the petitioneris a state through transportation line and the Service State of Wloconeln; FEng of m which numerous shipments of irradiated under the provisions of section 238(d) of for RWemsidng reactor fuel have passed and through the Act on Form i-4 A to insure such whicb future ahlp nents are scheduled, immed' ate and continuous transit aseecy: Nuclear Regulatory .he peut ener has anlaterest in through, and departure from, the United f'a= =' a="

protecting its citisens by ensuring that States en route to a specifically. acTiese Notice of receipt of petition for transportere of spent fuel have designated foreign country: Prorided, rula==1 ring from the Rtate of Wlanaamia adequatary irsparsd for potential hat such allen is la posseselon of a emergencies.

travel donament or documents suenaAny:The Commisalon is As the petitioner indicates, there lieve establishing his/her identity and publishing for public ra==aat this been over 300 highway shipments c4 naHaaality and al,ility to enter some notice of receipt of a yetition fo' spent fuel through the State of country otter than the United States. Wisconsin (2) Wolverofpassort and viso. On the rule which=hing dated was filed Dermahar with the Commission13.1984' by since August 1983.

Additional shipments have been basis of reciprocity, the waiver of the State of Wisconsin. no petition was scheduled by rail and are expected tis passport and visa is available to a docketed bythe Comminion on continue over the next five years, nationalof Albania. Bulgaria. December 17,1964, and hes been Fw ende d tese sidpments, b-Czechoslovakia. Estonia. the German suisned Docket No. PRM-71-10. W pmmer dage 6me has hun no Democratic Republic. Hungary. Latvia, petitioner requests that the f'a==== ion pg,g ,,,,,, ag, g, ,,g go, llthuania. Mongolian People's Republic, estabhah a mgulatwy process, that the shiposantes to sudsey or-People's Repuhuc of r htaa. Poland, would provide an oppatunity fw public ,t,-- =aseske .=.-e=a=4 wiek the Romania, or the Union of Soviet participation, fw the evaluation and seiseted restee.~er the propriety of d Socialist Republics resident in one of approval of propped shipments of espambagthe pubbe to these risks.De said countries, only if he/she is irradiated reacta fuel (opent fuel).

peettismer forther alleges that there is no transiting the United States by airwaft natu Submit ra==aats by April 5.1985. agemsrummsumsby regeertog adequate of a transportation line signatory to en f>====*= received after this date safegeante to protect against a agreement with the Service on Form I- . will be --- "- ; trit is practicallau)o p 426 on a direct through flight which will so, but :-_ _ - = cf r-$-gation i depart directly to a foreign place from cannot be sven except as to comments E. Federal R - , ,mty the port of arrival. received on or before this date The petitioner indicates that there are (3) Unovallobility to transit.This aaaaaaame All persons who deeiro to three Federal agencies which could waiver of pamport and visa requirement submit written comments cw u.Lg the potentially influence spent fuel i is not aveilable to an a;ien who is a petition for rulemaking should send their transportation decisionmaking.

citizen of Afghanistan.Bangladesh, comments to the Secretary of the Cuba. India, tran. Iraq. Pakistan or Sri Commimion Ti c ma.., n.-ut-ency

@8d**"' O@8'IY l Lanka.nis waiver of passport and visa CoEs amian We .hinston. DC _2tM&5, The Department of Energy (DOE). >

1 requirement is not available to an ellen Attention: eting and Servia under the Nuclear Weste Poucy Act of l who is a citizen or national of North Branch. 1982 (42 U.S.C.10101 et seq.) is ,

Korea (Demoastic People's Republic of For e copy of the petition, write the responsible for the long-term storage i Kores) or Democratic Republic of Division of Rules and Records. Office of' and disposal of commerciaUy genereted 1

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Once agnia,it appears that the state of Wisconstn DNR has grossly omstepped their legal authority and responsibility, by attempting to stop Northern Sta-les Power Co. rail shipments of opentrmelaar fuelto Morris,III. I De state organisation which .

has the legal authority and res- I '

pensibility to protect the cisteens of theStateof Wisecesinfresare-eation and radlanctive material le the Wiecessia E t ' of Health and Social Serv 6ces, Sec ,

tionof RadiationProtection.His is clearty densed in Wiecessin state stamme Hasis7 tiern. His i.wi=l== the protection of coan-muesty water supphes from radio-aattrtty as dennad in HSS 157.16.

However, 1 pac ===ia D.H.S.S.

has ro authority to stop railship-means of radloective n.. ial.

Otwtsamly, nedher h DfGt. His asshortty rests with the federal of Transportathm as in FederalIJw GCFR1.53 AppemenA.

Sincerely, PaulW.Shafer 438 W. Decker St.

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- I- fi DOCKET NUMBER PETITION RULE PRM 7/-/O l Jag .p,.

~,suc-

'85 mg 4 MO:37 N C 's b _q ,

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seb 26 -85 from the pen of EMERY NEMETHY "N.

, . . i. r. o. . l ett sect sir 's Deti t ir r de c 'y - I.au AII : IX Jr' Eil: G 6.

' S . :ssuno 17eis he: /Remmma Ee f Re g - Fe b 4-85 dinv10 en,JCh rege 4666 Ger tie rre r. =

..e rest certr. i rly mgree- wi th tr.e ne titiorer th t tr.e I.nC "cr3 v give s cursory e t tet t f or to ere rgency elsr irg."

lheir re titler r emor.str9 te s how IX)E and IX;T Pre ergegire in the hallowed gree of buck-DOPP ire.

..e hope Wis.'orsin 's e f forts will irre] ther -

rre F 'ruly theserious 1.hd - toa reredial cidet t orcetict be fore there's the ronds.

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,ei thir the rest coun3 e e f years, tLe re was e corprei.ersi ve *

• tic 2 e c: the tr rsonr? cf radioactive

.nC's nrarocer wrF5 s (v

sr't it f r. cre c f the rulirgs't)

It (etcile( the r.eed fer se cre cy ir '?

• s te-rev! rg one rr- t i er s . ut ra rk e c' trni) e rs, radio che ck s e t re gul ar in te rvel s, escorts by Ioes]

nelice veLicle s, etc.

.. e eubri t thE t siiscor sir 's r*onese) to sr.r ur ce n*cnosed et.irret ts it the Fe de-r 3 ae ci s t er vici 3 6 b re ach t. 4 9 sa c *e e v, erv ircreFPe ti.e rie', s o f sabe tri e o r the f t o f t i.e s i.i arr e r>

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DOCKET NUMBER l' PETITION RULE PRM-7/~/g g cresr !meeor Jeannette Raymond ( 50 m - a c.c f -

. Board of Directors cr.ee cib - -

rr.ak %d sn.ney Andereo. RIENDS FOR A g,$, NON-VIOLENT WORLD g ggg . 3, John Martinson 1925 NICOt.1.ET AVENUE. St.TTE 101 i Victoria Oshiro MINNEAPOIJS.MINNE5OTA 55403 i G.le Rohde 1612l 8701581 _,

March 7, 1985 bS * ' ~. nl ,. 3 " '

Secretary of the Commission U.S. Nuclear Regulatory Commission ^

Washington D.C. 20555

~~

Attn. Docketing and Service Re: 10 CFR Part 71 - Docket No. PRM 10

Dear Friends,

I am writing in support of the petition for rulemaking from the State of Wisconsin, docket number PRM 10.

As a member of the general public, it has been impossible to  ;

provide imput into the decision making process for nuclear waste shipments. [

In coming years,when a federal repository will be placed, shipments will become more frequent. Public health and safety issues and the nuclear industry are and will be vital issues. If there is no public imput the -

health and safety of the public will not be insured. Part (e) (2) of PRM 10 is essential to allow for public imput.

Sincer,ely ,

f Ord ennnette Ra i Program Direc 3

kinno,o -PRM ~ n50307 PDR 4 4 71-10 n'30 1

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gd* ,y. . .yYf,in Acknowledoedbyomnf.e.un u d' a nes .

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k June 18, 1985 NOTE TO RECEIPIENTS OF PRM 71-10 DG(nETE:

usMC Please note for your records, that there is no Coment No. 6.

This number was inadvertently skipped over. The No. 6 will not be M used. c rritt 05 siti<t it.

00CMEll% & SEPv'.fi BRANCH i

Docketing and Service Branch Office of the Secretary 1

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- - = , March 19, 1985 M*W'

'o5 H4425 #0;50 Mr. Samuel J. Chilk, Secretary . , .

U. S. Nuclear Regulatory Commission  :~ ~ . .

Washington, D. C. 20555

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9 At tent, ion _: Docketing and Service Branch DOCKET NUMBC x PRM lO SubJitEIT~ Duke Power Company P(ETITION RULE [d fk,ad Consnents on 10 CFR Part 71, Docket No. PRM-71-10 State of Wisconsin; Filing of Petition for Rulemaking

Dear Sir:

The NRC requested in a Federal Register Notice dated February 4,1985 (Volume 50, Number 23 FR 4866 and 4867) comments on the subject proposed petition for rulemaking. In response Duke Power Company offers the following for consideration.

General Comments: _ __ _

Duke Power Company is of the opinion that the Rules and Requirements currently contained in Prom 1 gated Regulations are responsible and adequate for all known conditions and provide a high degree of assurance for the protection of public health and safety and the Safeguards / Safety of spent fuel shipments. Recognizing that absolute assurance is neither required nor possible and reasonable assurance has been achieved _

by industry initiatives, self-regulation and current Promulgated

. Regulations (10 CFR Parts 71 and 73), Duke Power Company strongly opposes (emphasis added) any further Promulgated Regulations and the State of Wisconsin Filing of Petition for Rulemaking. Based on NRC Safeguards /

Safety Studies Nuclear Power Industry initiatives and the Nuclear Power Industry historical safeguards / safety transportation of spent fuel by rail and road track record, the NRC regulatory framework, for the pro-tection of public health and safety should take the initiative and reduce in a responsible manner the current requirements and promulgated regulations. A reasonable reduction of current requirements and

. promulgated regulations, based on industry experience, would be strongly endorsed (emphasis added) by Duke Power Company. ,_ _

Specific Comments: _,_ _

(1) 10 CFR Part 71 Section (b)(1) requires a statement that the licensee will obey regulations. In so much as the licensee is required by .

. law to comply with promulgated regulations, this statement is redundant and the result of this statement is not evident.

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- ter. Samuel J. Chilk. Sect:tcry

. March 19. 1985

• Page Two (2) As indicated in the general consents above.10 CFR Parts 71 and .

73 contain stringent regulations for the transportation of spent fuel. Responsible industry management and the economics of spent fuel transportation will prevent unnecessary spent fuel shipments Therefore,10 CFR Part 71. Sections (b)(2) and (b)(5) are not needed.

(3) Existing regulations require the NRC approval of travel routes.

Therefore 10 CFR Part 71. Sections (b)(3) and (b)(4) are redundant.

(4) 10 CFR Part 71. Section (b)(6) refers to the design of the spent fuel shipping cask. Since the NRC currently certifies cask design.

Section (b)(6) is unnecessary.

(5) The NRC current Bearing Process is time consuming, costly to licensees, redundant in rulings and issues previously resolved and places a negative impact on the licensee. If the NRC were to receive comments and hold Public Bearings on each shipping campaign as indicated in 10 CFR Part 71. Section (c), it is doubtful if spent fuel could realistically be moved within the United States.

Additionally, if these Public Hearings included an Environmental lapact Statement as indicated in 10 CFR Part 71(d) for each shipping campaign it would be redundant for most licensees and would impact others as indicated above in cost and time. ,

t (6) The petition states, fuel storage pools at nuclear facilities are reaching maximum capacity. For some f acilities it will be necessary to ship spent fuel from these pools in the near future. Regulations should not be overly restrictive so that relief can be achieved.

The NRC's criteria for determining the adequacy of available spent fuel storage capacity were published in the FR 5548. Vol. 50 No. 28 dated February 11. 1985. Utilization of transshipment from one site to another within the same utility system is a principle endorsed in the criteria. The imposition of regulations which would severely impede shipment would be in conflict with the guidance published in FR 5548.

We appreciate this opportunity to provide you with our comments. We trust that our comments will be considered and that the Commission will .-

move promptly to resolve this Petition fer Rulemaking by the State of Wisconsin and other issues relevant to the transportation of spent nuclear fuel.

If there are any questions or problems concerning this subject, please advise.

Very truly yours.

E./

Bal B. Tucker JWD: sib .

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• _ _ - , , ~

• escetano ca. navass STATE OF NEVADA cesamer moment Q.toux sameer s

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NUCLEAR WASTE PROJECT OFFIC$6 -

omce or rm covenson 3 3. 3.w-Capitol Consplen . .

Censon City. Nevada 89710 I'~ ." -) ( , ; , ',.

(702) 885 3744 -

n March 25, 1985 DOCKET NUMBER mye nuu PRM7/-/d Secretary of the Commission (50FK 4746)

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing & Service Branch RE: PRM-71-10  !

Dear Sir:

Enclosed please find the Comments of the State of Nevada regarding PRM-71-10 submitted by the State of Wisconsin.

Should you have questions, please do not hesitate to contact me.

erely,

/1 C A . 7 #

ROBERT R. LOUX Director RRL*jm 1

Encl. ** '

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COMMEN15 ON PEM 71-10, FTATE OF WBCONSIN PE1TI10N FOR RULEMAKING REGARDING

• E TRANSPORTA110N OF SPENT FUEL On December 13, 1984, the State of Wisconsin filed a Petition for Rulemaking to the Nuclear Regulatory Commission requesting that the Commission establish a regulatory process that would provide an opportunity for public participation in NRC evaluation and approval of proposed shipments of irradiated reactor fuel. On February 4,1985, the Commission published the Petition. 50 Fed.

Reg. 4866. These comments are responsive to the Commission's request for comments contained therein.

The State of Nevada has been notified that a potentially acceptable site for the development of a high-level nuclear waste repository exists in the state. In addition, the Department of Energy has identified, in its Draft Environmental Assessment for Yucca Mountain, that site as likely to be characterized under S 113 of the Nuclear Waste Policy Act. Because of the potential development of such a l

l repository and the consequent transportation of an irradiated reactor fuel to the repository, the State of Nevada has an interest in the outcome of PRM 71-10.

Nevada generally endorces the proposed amendments to 10 CFR Part 71 contained in PRM 71-10 and recommends that the Commission adopt the proposed amendments.

j Nevada's particular concern is that the spent fuel, title to which will transfer to the Department of Energy pursuant to S 123 of the Nuclear Waste Policy Act,42 USC 10143, and which will be transported by the Department or its contractor, see S 137 NWPA,42 USC 10157, will be subject to the proposed amendments. Nevada interprets 10 CFR Part 71 to apply to such spent fuelinasmuch as the Department of Energy would be a " licensee" as that term is used in Part 71. In the event that I

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• this interpretation is incorrect, the proposed amendment to 10 CFR Part 71 should clarify the appliestion of the proposed amendment to the Department of Energy and its contractors.

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March 29, 19 $ @ t-1

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Jack Wettman. Associate Direoor 23:03

. '. N. . 2:

Samuel Chilk, Secretary

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United States Nuclear Regulatory Consnission Washington, D.C. 20555

Dear Mr. Chilk,

The State of Utah Office of High-level Nuclear Waste would like to offer its comments on the State of Wisconsin's Petition for Rulernaking (PRM-71-10;-

December 17, 1984). The safety of spent fuel transportation is, and will continue to be, an issue of great importance to the citizens of Utah. We recognize and support the State of Wisconsin's request for a more active Federal role in the regulation of spent fuel shipments. Such a role is essential now and in the future, when the volumes of these shipments will increase significantly.

We therefore agree with several of the concepts forwarded in the Wisconsin proposal. We support the concept that shippers should justify the need for any and all spent futi shipments. The risks of such transport have been documented and should be diminished if at all possible. We further support the concept of identification of route-specific conditions or hazards which create unique risks of accidents, sabotage or radiological exposure. Although current regulations allmd for such identification, they do not encourage it as a matter of course; this process, however, could significantly reduce the probability of unnecessary public radiological exposure.

Identification of potentially hazardous conditions is directly related to l cask safety. This office has conducted a review of the technical literature I on cask design, development and performance. This survey strongly suggests i that the safety of existing casks is sufficiently uncertain as to warrant more extensive testing. Such testing would necessarily address potentially hazardous conditions for each proposed route.

The State of Utah Office of High-Level Muclear Waste believes that the primary concern of carriers, shippers and regulatory agencies should be the safety of the public. We therefore endorse the conceptual basis of the State of Wisconsin's petition and urge that the concepts and procedures discussed in the petition be fully addressed by responsible Federal authorities.

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g g '.s 340 W. 2nd Street PETITION EU.

M P.O. Box 224 Trempealeau, WI 54661

{gg pg gggfj April 1, 1985 Secretary of the Comission U.S. Nuclear Regulatory Comission .

Washington, DC 20555 .. .

10

)

John Phillips, Chief Rules and Proceedures Branch ..

Division of Rules and Records n<..,,-

Office of Administration U.S. Nuclear Regulatory Comission Washington, DC 20555

Dear Sirs:

I am writing to support the Petition for Rtlemaking from the State of Wisconsin, docket number assigned PRM-71-10.

I agree with the petition that there is a gap in the process of considering the safest route and the overlap of the three agencys listed in the petition (DOE,00T&NRC) that have no policy in force to allow for public input or or the need of the shipments in the light of severe ramifications which would affect the environaent or any endangered species along a route.

The proposed amendments to 10 CFR Part 71 address this problem and others associated with these shipments.

I live within 500 yards of the current route being used by NSP to ship from Montecello, MN to GE in Morris, IL. The incredible thing about these -

current shipments is that they are in a currently unliscensed cask, a temporary liscense was granted them, the casks being used have never been tested to ch

-eck for strength when heated to the temperature at which they are traveling full of spent fuel, and then, submurged into the the cold waters of the Mississippi River. This particular route is 80% along the Mississippi and through 3 State Parks and a National Wildlife Refuge.

The conditions under which MSP is shipping are also suspect as they sued GE to take back the spent fuel and GE lost and must bear the majority of the costs of the shipments. This is only to the economic gain for NSP to ship now as their storage pool at Montecello has about 4 more years of space left in it a current use rates. Therefore, I most adamantly support the Section number V. Conclusions in the petition requesting that'the NRC not approve any further routes or shipments, until this rule has been promulgated.

,fh l W $

Daun E. Allen _

P.S. I am sending copies of this letter, and the page from the federal Register to my local representatives, state and federal.

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JEROME J. JOYCE SENATOR

.s.o L..a.L.vev. os.t. set h . : -4 P 1 '.03 Aprii 1, 1985 kJ.nE ' . s 5E". I r

ACH Secretary of the Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Attention: Docketing f Service Branch

Dear Sir:

I am writing in support of the State of Wisconsin's petition for rule-making in Docket PRM-71-10.

Since January 1972, General Electric's Morris Operation has served as the nation's only storage facility for comercially produced irradiated reactor fuel. When the U.S. government develops an interim storage facility or a disposal facility, this fuel will be removed from the Morris Operation and transported again; which raises the serious question of the necessity of shipments to Morris.

It is imperative that there be a legal mechanism for public coment on proposed nuclear waste shipments and I believe that the State of Wisconsin's proposed amendments to 10 CFR Part 71 provide for an effective evaluation of the propriety of such shipments.

Sincerely, J ome J. Jo ce

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STATE OF ILLINOIS -

DEPARTMENT OF NUCLEAR SAFb.;' -a PI:05 1035 OUTER PARK DRIVE SPRINGFIELD 62704 (217) S46-8100 h'g.gj [. c ill TERRY R. LASH DAN L WiwAus oncio. " " " " "

April 3, 1965 Secretary of the Cosuiission U.S. Nuclear Regulatory Cosmission Washington, D.C. 20555 Attn: Docketing and Service Branch Re: State of Wisconsin; Filing of Petition for Rulemaking.

Docket No. re 10 (50 Fed. Reg. 4866-4867 Feb.T 11F80 On behalf of the State of Illinois, the Illinois Department of Nuclear Safety (IDNS) hereby submits its cossments on the above-referenced petition filed by the State of Wisconsin. The petition requests changes in the U.S. Nuclear Regulatory Commission's (RC) regulation for shipments of irradiated (" spent") nuclear fuel in order to require the NRC to judge the necessity and safety of individual spent fuel shipments and to allow the public formal opportunity to consent on the NRC's written evaluation.

The State of Illinois shares Wisconsin's concerns about spent fuel shipments, and it has adopted the strongest program in the nation to assure the safety of such shipments. In July, 1983, Governor James R.

. Thompson instructed IDNS to inspect and escort all commercial spent fuel a am shipments traveling in Illinois. A specially trained IDNS health '

physicist inspects each shipment to assure that all applicable federal and state radiation protection requirements are met. A shipment in violation would not be allowed to proceed. When a shipment is found in conformance with applicable regulations, the health physicist follows the shipment in a van fully outfitted with radiation detection instruments  :

and emergency response equipment to its destination in Illinois or until it departs Illinois. (In the past, for shipments with a destination in Wisconsin IDNS has provided copies of its inspection reports to the

• State of Wisconsin.) The IDNS health physicist maintains -adio communication with the shipment and with all involved agencies throughout the journey. Moreover, the Illinois State Police inspect and escort the trucks carrying these shipments, and the Illinois Connerce Commission provides similar safety inspections for shipments by rail.~~As a result E ggM m df eme. .m i... .. .u .. 7

i Secretary of the Commission April 3,1985 of Governor Thompson's initiative, the State of Illinois has had substantially more experience with inspecting and escorting spent fuel shipments than any other state. To date, some 276 such shipments have been inspected and escorted, and no violations of radiation protection standards have been detected.

The State of Illinois also has adopted a comprehensive plan for j assuring the public's protection in the event of an accident involving a shipment of spent fuel. Chapter X of the Illinois Plan for Radiological Accidents provides for the coordination of the state agencies' response with those of federal and local governments. This chapter on transportation accidents has been provided to the local governments along the routes for spent fuel shipments, and the IDMS staff has conducted ,

numerous training sessions for local governmental officials. Under the l plan, local units of government are given advance notification of spent .  ;

fuel shipments traveling through their jurisdictions. In the event of an accident IDNS trained personnel would be responsible for assessing the degree of radiological risk and recommending the appropriate protective actions and mitigation measures. Other state agencies and local governmental units would be responsible for the non-radiological aspects of an accident.

Even with this comprehensive program in Illinois, the federal government must not reduce its level of effort to assure protection of the public from the radiological hazards posed by spent fuel shipments.

On September 6,1984, IDNS wrote strongly opposing the IRC's proposed relaxation of the requirements on spent fuel shipments. (Re:

Modification of Protection Requirements for Spent Fuel Shipments,10 CFR Part 73.37 (49 Fed. Reg. 23867-23872, June 5, 1984.) Indeed, particularly in flie area of advance notification of shipments, the NRC's regulation must be strengthened, not weakened. t The State of Illinois strongly supports efforts to ensure that spent fuel is transported in a safe manner. For this reason, the State of Illinois has implemented an extensive safety program which does not, however, unduly restrict local decisions. The inspection and escort program in Illinois has clearly demonstrated that shipments of spent fuel can be accomplished safely without imposing burdensome procedures.

The State of Illinois believes that states should adopt their own safety programs, to complement NRC regulations, for the transportation of spent fuel within their borders. The State of Illinois has already done this to ensure the highest degree of safety possible.

If you have any questions about the spent fuel inspection and escort program of the State of Illinois or the State's comments on the above referenced petition, do not hesitate to contact me.

S !cerely, b i Tl rry R Lash D'rectoF TRL: den

DOCKET NUMBER

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Ory of Chicago Horold Washington. Mayor April 1, 1985 Department of Low James D. Montgomery Corporation Counsel City Holl. Room 511 121 North Lo5o!!e Street Mr. Samue1 J. Chilk Chec Secretary (312Do. Winois 60602 44 6900 Nuclear Regulatory Commission Washington, D.C. 20555 Re: Petition for Rulemaking, Shipments of Irradiated Reactor Fuel. Docket No. PRM-71-10 ,

Dear Mr. Chilk:

Enclosed herewith kindly find one original and two (2) copies of the Comments of the City of Chicago, in the captioned matter, for filing with the Commission.

t Very truly yours, Dodge Wells Assistant Corporation Counsel Public Utilities Division Aut A6 Bernard Rane Assistant Corporation Counsel Public Utilities Division (312) 74 4-ti90 4 BR/vg

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Petition for Rulemaking ) Docket No.

Concerning the Shipments ) PRM-71-10 of Irradiated Reactor Fuel )

COMMENTS OF CITY OF CHICAGO CITY OF CHICAGO JAMES D. MOICGOMERY Corporation Counsel DODGE WELLS Chief Assistant Corporation Counsel Public Utilities Division BERNARD RANE Assistant Corporation Counsel City Hall, Room 610 121 North LaSalle Street Chicago, Illinois 60602 (312) 744-6904 Due Date: April 5, 1985

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4 UNITED STATES OF AMERICA MUCLEAR REGULA'IORY COMMISSION -

Petition for Rulemaking ) Docket No.

Concerning the Shipments ) PRM-71-10 of Irradiated Reactor Fuel )

COMMENTS OF CITY OF CHICAGO The City of Chicago (" City") hereby submits its Comments to the Petition of the State of Wisconsin filed with the Nuclear Regulatory Commission (" Commission") for Rulemaking to establish a regulatory process that would provide an opportunity for public participation for the evaluation and approval of proposed shipments of irradiated reactor fuel (spent fuel). Notice of Wisconsin's Petition appeared in the Federal Register, Volume 50, Number 23, on February 4, 1985. The Commission has directed that interested parties may file comments to the Petition for Rulemaking on or before April 5,1985.

Chicago supports the principle that states and local governments be given the opportunity to provide the NRC with relevant information concerning safety and the environmental consequences of proposed shipments and routes by which nuclear spent fuel is moved in interstate commerce.

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Specifically, the City endorses the following proposed rules as set forth in Wisconsin's Petition for Rulemaking which provide an opportunity for local government participation:1 A.) Rule (c)(1) which requires the NRC to notice in the Federal Register an application for approval for the transportation of irradiated reactor fuel:

B.) Rule (c)(2) which provides for written comments to the application by interested persons including states and municipalities. Also, the commenting persons may request a hearing by the NRC concerning the applicant's compliance with existing rules and requirements;2 C.) Rule (c)(3) which requires an NRC decision on an application if a hearing or hearings are held under subsection (c)(2);

D.) Rule (d) which requires the filing of an environmental impact statement if the NRC's action mandates the same under federal law, rules and requirements.

. As a clarification of Chicago's endorsement of Rule (c)(2),

1 Parts (a) and (b) of the Proposed Rule concerns an application process for proposed shipments. Since Chicago supports Rule (c)(1), Chicago endorses Wisconsin's proposal that an application be required. However, Chicago does not wish to express a position on the specific items which should be included in the application.

4 2

The Proposed Rule, as written, may be interpreted as f

permitting comments and a hearing only on the question of whether the applicant has fulfilled the requirements of 5 73.37 [ Proposed Rule (b)(1)]. Chicago is more interested in an opportunity to 3

provide the Commission with information on route-specific conditions and alternative routes (Proposed Rules ~(b)(4)'and -

(b)(5)].

0 the NRC shall have the discretion to conduct or not to conduct a hearing when requested by a commenting person. If a hearing is granted by the NRC, the person opposing the application shall have the burden of proof that the applicant has failed to comply with applicable rules and requirements.

At the present time, the NRC furnishes seven (7) days notice to the governor, or his or her designee, of those states in which the irradiated reactor fuel is to be transported. It is the City's understanding that the notice is provided by mail and therefore the actual communication of transport is not received by Illinois until three (3) days before shipment. The City would urge the NRC to increase the notice period.

In Illinois, the designee of our governor is the Illinois Department of Nuclear Safety ("DNS"). DNS, in collaboration with the Department of Law Enforcement Division of State Police, the Emergency Services and Disaster Agency, the Department of Transportation and the Railroad Section of the Illinois Commerce Commission, are responsible for insuring the safe movement of irradiated reactor fuel within Illinois borders.

Some of the activities which DNS engages in are the inspection of the rail and truck containers in which the spent fuel is shipped; an inspection of the r'il track within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> prior to rail movement; an escort service by which vehicles with radio communications follow the rail and/or truck shipment until it arrives at a site in Illinois or leaves the Illinois border.

Although DNS does an excellent job in protecting the public from potential accidents involving the movement of irradiated reactor fuel, it has no control over the volume of shipments and the routes by which this traffic moves within the State of Illinois.

Chicago is unaware of the shipments of spent fuel sithin its geographical boundaries. The City does not receive notice from the NRC of these proposed movements whether by rail or by truck. Its agencies, such as police, fire and health, are not alerted until a serious problem arises.

The State of Wisconsin has performed a public service by focusing attention on a problem which will escalate and deepen in the near future. Periodic review and an invitation for state and local government comments to existing rules and regulations of 3 the NRC on this subject will promote and protect the public interest and safety.

. Respectfully submitted, CITY OF CHICAGO JAMES D. MONTGOMERY Corporation Counsel Dodge Wells Chief Assistant Corporation Counsel Public Utilities Division Bernard Rane Assistant Corporation Counsel M4 pw City Hall, Room 610 Chicago, Illinois 60602 (312) 744-6904 r "

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Secretary of the Commission 5 /PR -5 P3:59 U.S. Nuclear Regulatory Commission Washington, DC 20555 tf Ar e .

ATTN: Docketing and Service Branch WE$1 MH I. .]EQ.

April 4,1985.

Dear Sir or Madam:

In accordance with existing regulations that allow for public comment on petitions for rulemaking published in the Federal Register please see Earth Protector, Inc. comments regarding Docket No. PRM-71-10 published February 4,1985 in Vol. 50, No. 23.

Earth Protector, Inc. is a Minnesota based public interest corporation dedicated to the protection of the public resources of our nation - the land, air, water, and those who use these resources - from contamination.

The eternal peril posed by the vaste from the nuclear industry has been well documented and needs no repeating in Earth Protector consnents other than for us to continue to indicate whenever possible that the continued production of electricity with nuclear power is stupid.

What needs to be done now is apply common sense to the disposal of the irradiated fuel assemblies. This is not being done. Here in Minnesota, the Northern States Power Company (NSP) is shipping spent fuel assemblies f rom a temporary storage facility to another temporary storage f acility in Morris,

, Illinois and crossing the State of Wisconsin to accomplish this fiendish task.

The public does not have the information as to the safety of the casks being used, the necessity of the shipments, the proper routes to take and the entire range of questions that deal with the protection of our lives.

In regar( to the shipments leaving Minnesota it has been the public that has had to,espervise the repair of poorly maintained tracks in addition to raising . question of shipping from a temporary facility to a temporary facility Earth Protectors do not feel that simply shipping this deadly material from one state to another addresses this problem in a mature and responsible manner but rather reflects a serious lack of cocununication between the public and the administration responsible for looking af ter our interest.

Since the NRC is the primary responsible agency for public protection f rom the hazards of nuclear waste the rulemaking on this issue is important and the key at this time is to order a stop to the shipments until we can clearly assess the total problem and put an intelligent and comprehensise plan into work.

p d/ - MI /,, Acknowledged by card. 8 1995 "

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1138 Plymouth Building, Minneapolis, Minnesota,55402 012 375 0202

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1dre v-Nuclear Regulatory Commission Comments Page 2 A community right-to-know process must be established with federal, state and local agencies so that public information regarding safety criteria and problems is released in a timely and ef ficient manner. All parties involved should meet to develop details of this process.

Thank you for the opportunity to comment m the State of Wisconsin petition for rulemaking request.

Yours For A Cleaner Earth Sincere ,

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I es11e a President I

LD/wo 1138 Plymouth Building, Minneapolis, Minnesota,55402 012 375 0202

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Mr. Samuel J. Chilk Secretary of the Commission United States Nuclear Regulatory Comission

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Washington, D.C. 20555 ATTN: Docketing and Service Branch Re: Docket PRM-71-10 State of Wisconsin; Petition for Rulemaking 50 Fed. Reg. 4866 (Feb. 4, 1985)

Dear Mr. Secretary:

A. Introduction The transportation of radioactive materials has gained some attention during the last several years as a result of increased shipments of comercial spent fuel and other high-level radioactive waste. These increased shipping activi-ties reaf fi nn that the transportation of radioactive materials constitutes an infinitesimal radiological risk to the public. Despite the fact that no one has ever been killed or injured from radiation in over twenty years of comercial spent fuel transportation involving thousands of spent fuel elements, including over 200 recent highway shipments in Wisconsin, there continues to be a small group of disbelievers and opponents of nuclear energy who maintain that current standards and regulations for the transportation of spent nuclear fuel are totally inadequate.

Nebraska Public Power District is extremely inte re,sted in the regulatiens relating to spent fuel shipments because of the continued transfer of spent fuel from Cooper Nuclear Station to General Electric's Morris Operation. #

In addition to our coments herein, we fully endorse the coments filed on this subject by the Nuclear Transportation Graup.

Before addressing the particular amendments to 10 C.F.R. 71 proposed by the State of Wisconsin, it is important to emphasize that the Petitioner is oper3 ating under the false premise that the transportation of radioactive materials is seriously under-regulated. Nothing could be further from the truth.

Regulations governing the shipment of spent nuclear fuel were originally conceived in 1946 by the National Academy of Sciencts and since that tinie the framework of regulations which the State of Wisconsin finds to be 50 inadequate have been adopted by the International Atomic Energy Agency.

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- April lo 1985 Page 2 changed little because in 35 years of actual use, they have proven to be quite effective in minimizing public injury f rom RAM [ radioactive materials) in transport."1 The amendments proposed by the State of Wisconsin do not afford greater protec-tion to the public but rather would hinder the ability of shippers and carriers to continue transporting radioactive materials in a reasonable and highly safe manner.

The State of Wisconsin has proposed several amendments to 10 C.F.R. Part 71 providirig for advance approval for transportation of irradiated reactor fuel.

NPPD believes that the preposed changes are generally unnecessary, redundant and/or inappropriate. Most specific proposals will be addressed separately.

B. Section (b)

Among the proposed amendments is the following:

(b) an application for approval of a shipment of irradiated reactor fuel must be made in writing at least 120 days prior to the proposed shipment and must demonstrate that:

(1) The applicant has fulfilled the requirements of 673.37 of this chapter; This requirement is redundant. A licensee is currently required under 10 C.F.R. 173.37 to meet the specified requirements for physical protection of irradiated reactor fuel in transit. Since there is already an obligation to comply with the requirements, it is unnecessary to restate the requirements.

Moreover, the requirement that the licensee must demonstrate that it has fulfilled all the requirements of 10 C.F.R. 673.37 is unreasonable, unnecessary and would in part, run contrary to the purposes of 973.37. As a general coment, it is unclear what type of " proof" would be required in order to

" demonstrate that the applicant has fulfilled the requirements of 673.37."

However, it is very clear that providing the infonna tion requested by the State of Wisconsin could be extremely counter productive. A number of the requirements of 10 C.F.R. 673.37 involve safeguards. Requiring utilities to disclose certain safeguards is a grave mistake. For example, paragraphs 10 C.F.R. 173.37(b)(2), (3), (5) and (8) involve safeguarded information.

If the State of Wisconsin desires the rioht to submit written ccaments and request a hearing regarding a licensee's compliance with those sections, it would require the licensee to make available for public inspection detailed infonnation relating to security of the shipments. This is absurd and would defeat the purpose of 10 C.F.R. 573.37.

1 SANDIA REPORT " Analysis of Recent Council on Economic Priorities Newsletter" SAND 82-1250 p. 9.

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Mr. Sa;uel J. Chilk April 1, 1985 Page 3 The Wisconsin request also proposes that the licensee shall demonstrate that:

(2) The proposed shipment is necessary to meet the requirements of the licensee's operating license or required minimum fuel storage capacity; This proposed requirement would be extremely detrimental to the operators of nuclear reactors and their ratepayers without increasing public safety.

NPPD is aware of no operating license requirements that would compel the shipment of spent fuel. In addition, this proposed regulation would stifle prudent utility planning and decision-making by prohibiting a utility from transporting spent fuel to some other storage facility at the most oppor-tune and cost effective time. Rather than allowing a utility to transfer fuel when it deemed necessary or prudent, this proposed requirement would force a utility to wait until its on-site fuel storage capacity was exhausted befo-e comencing shipments. This could result in reactors being shut down because of lack of available storage capacity either on or off-site.

The proposed amendment would require licensees to demonstrate that:

(3) The proposed route complies with all applicable DOT safety and routing regulations; This is another redundant and unnecessary requirement.

Ir. addition, the proposed amendment would require demonstration that:

(4) There are no route-specific conditions or hazards which create unique risks of accidents, sabotage, or radiological exposure; and Petitioners seek to impose a standard that can never be met. Every route regardless of its location or characteristics is going to have certain unique risks of accidents or sabotage that are different from any other particular route. However, that doesn't mean that the " risks" are significant. As a matter of fact, such " risks" have been anticipated in the design of the casks. The design and engineering standards which have been developed for the transportation casks r dinary accident conditions.gsult' in a container which can withstand extraor-The licensee under the proposed amendments would also have to demonstrate that:

(5) The applicant has evaluated alternatives to the proposed shipment and alternative routes and has demonstrated that the proposed shipment is the best alternative for handling the irradiated reactor fuel which provides the least risk of radiological exposure to the public.

2 Id. at 9-12.

f Mr. Samu?1 J. Chil'c April 1,1985 Page 4 This provision would make it next to impossible to ship spent fuel. The risk of radiological exposure to the public under current shipping require-ments and procedures is very remote. Not shipping at all may theoretically be a lesser risk although the reduction, if any, is extremely small.

The proposal also requires the shipper to demonstrate that:

(6) The proposed shipping cask is shown to be capable of withstanding all reasonably foreseeable incidents along the proposed shipping route that could interrupt the shipment.

As previously mentioned, the casks are already required to be designed to withstand very severe accident condi tions. In addition, full scale testing has been conducted by Sandia National Laboratories and others and has confinned the accuracy of computer models in predicting the performance of casks under real accident conditions. To requirt additional demonstration from the licen-see serves no public purpose.

C. Section (c)

The proposed language under (c)(2) regarding public hearings is totally un-necessary and would undennine the purposes of 10 C.F.R. 973.37 as discussed supra.

D. Section (d)

The Commission has previously determined that the envirorrental consequences of spent fuel transportation are extremely small. See 10 C.F.R. 151.20 (Sumary Tables S-3 and S-4). Accordingly, an environmental impact state-ment is not required and there is r.o justification for imposing such a require-ment.

E. Conclusion For the foregoing reasons, Nebraska Public Power District believes that none of the amendments proposed by the State of Wisconsin should be adopted as they are unnecessary, unreasonable and inappropriate. Therefore, the Petition

, should be denied.

Sincerely, M

a . Pilant Manager, Technical Staff Nuclear Power Group

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Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing & Service Branch

Dear Sir:

We would like to offor comments on the proposed petition by the State of Wisconsin for rulemaking requiring application from radioactive materials licensees to the U.S. NRC 120 days before commencement of fuel rod shipments. The basic reason for the rulemaking petition was to allow more public input on transportation of fuel rods.

While we highly encourage public participation in all aspects of the issue of transportation across the United States, we believe the 120 day application rule would provide undue hardships on the shipper and carrier.

The U.S. NRC and DOT have provided for public input in years past which has been adequate for route selection. In the past rule making hearings we were able to designato certain routes in Idaho as perferred routes for fuel rod shipments.

Since the rulemaking and route selection over two years ago, there have been no accidents involving fuel rod shipments.

We are concerned, however, with the lack of enforcement and inspection procedures needed to assure that proper notifica-tion is made by the shipper and that information submitted is accurate. The regulations do not identify the regulatory bb 6!! y d.i 6 .l f t ,/', //f / . 4 ' L' P' ' ' -

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Secretary of the Commission U.S. Nuclear Regulatory Commission April 1, 1985 Page Two agency responsible for the inspections.

We appree' ate this opportunity to provide input on this issue.

Si ere ,

OHN V. EVANS GOVERNOR JVE/ds

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ROUTE 1, RUDOLPH, WISCONS 84 54475 March 29, 1985 M)N O/

Secretary of the Nuclear Regulatory Commission (83 F4 49W i Washington, DC 20555 g M -5 P!2:12 l

ATTN: Docketing and Service Branch gb( ..,f .mm.

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Gentlemen: RE: Docket # PRM-71 State of Wisconsirl[4111ng of Petition for Rulemaking l We support the State of Wisconsin in this filing of petition for rulemaking es we agree that Northern States Power Company has not adequately prepared 4

for an accident involving spent reactor fuel in making the shipments from Monticello to Morris, Illinois.

I This railroad traverses wetlands, passes along rivers and cliffs with little or no access, travels by tank farms storing flammable gases and a six-alle stretch of trestle involving the Mississippi River. There is sensitive ,

i environmental resources in this rail corridor, including fish spawning areas, l protected wildlife habitats, wetlands and endangered and threatened species.

Certainly there needs to be consideration given to the need for the shipments  !

i cnd the safety and environmental risks associated with various routes. The

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training of firefighters, law departments and hospitals is inadequate at this j time.

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We ask that you adopt the proposed rule that will provide the NRC and the public  !

the opportunity to evaluate the propriety of spent fuel shipments and the ability l of emergency personnel to respond to same. l l

! Sincerely, f

' (Mrs.) Naomi

f. cobson l Co-Chairperson & Director l

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525 River Road

Rudolph, W13. 54475 NFJ l

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Washington, D.C. 20555 Re: In the matter of the Petition of the State of Wisconsin for the Adoption of a Rule Regulating the Transportation of Irradiated Reacter Fuel, Docket No. PRM-71-10

Dear Sir or Madam:

Enclosed please find an original and five copies of the Comments on Petition for Rulemaking by Attorney General of the State of Illinois in regard to the above-mentioned matter.

Please send one stamped copy back to our office.

Very truly yo Michael J. I fes Director of Advocacy 160 North LaSalle Street, Rm. 900 Chicago, Illinois 60601 312/793-7642 jg Enclosures D511 add:

S. Wigginton, 4000 MflBB Janes J. Henry 1130 SS MR 8 1985 Frank Young, AR-5037 -

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WISCONSIN FOR THE ADOPTION OF ) Docket No. PRM-71-10

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OF IRRADIATED REACTOR FUEL )

COMMENTS ON PETITION FOR RULEMAKING BY ATTORNEY GENERAL OF TSE STATE OF ILLINOIS I

Neil F. Hartigan, Attorney General of the State of Il-linois, on behalf of the People of the State of Illinois, submits these comments to the Nuclear Regulatory Commission in support of the State of Wisconsin's Petition For Rulema' king in the above matter. These comments are offered as a supplement to the State of Wisconsin's reasons for the adoption of the proposed rule which reasons are hereby adopted and reasserted.

I.

THE INTEREST OF THE s STATE OF ILLINOIS IN ~~

THE SAFETY OF NUCLEAR FUEL TRANSPORTATION

, A. State Governmental Activity Illinois has a strong and abiding interest in the safety of its citizens and its environment from any potential adverse impact that might result from either intentional or accidental

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activities or omissions related to nuclear fuel transportation taking place in whole or in part in Illinois.

The Governor and the Attorney General of Illinois sent a joint letter dated September 23, 1983 (copy attached and marked

" Exhibit A") to Chairman Palladino setting forth numerous con-cerns related to this issue and its potential impact in Illinois.

Illinois Public Act 83-1342 became effective on Septem-ber 7, 1984. This Nuclear Safety Preparedness Act (Ill.Rev.S tat. , ch. 111 1/2, par. 4304, et seq.) (Copy attached and marked " Exhibit B") established a state-wide program designed to allow Illinois state officials to engage in activities associ-ated with the preparation and implementation of plans to deal with the effects of nuclear accidents that might take place in Illinois.

There is currently in place in Illinois a program where-by staff members of the Illinois Department of Nuclear Safety and the Illinois State Police meet all shipments of spent fuel at Illinois' borders, inspect for vehicle safety and compliance with federal radiation standards, and escort the shipments through the L

state.

Notwithstanding the foregoing ef forts of Illinois, there is a distinct need in Illinois and across the nation for further regulatory effort such as that which is now proposed by the State of Wisconsin. Route-specific advance planning for nuclear waste transport should be a highly significant but is, in fact, a much

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L-neglected component of the regulatory framework currently in place. The proposed rule will strengthen that framework.

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B. Citisen Concern t

f The Attorney General is personally aware of the keen interest of many individual Illinois citizens and numerous groups active throughout the State of Illinois with respect to nuclear

! waste transportation safety issues. The Attorney General feels

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3 strongly that the concerns and questions raised by these citizens i and groups need to be addressed and that a forum for their ex-3 pression and for the provision of citizen input is both desirable and needed. Adoption of the proposed rule will provide this fo-rum and a reasonable opportunity to express concerns and offer I information that can be extremely helpful in reaching sound deci-sions on routing.

C. Illinois' concerns are significant And, In some

, Instances, Unique -

Illinois is well-known as being a segment in numerous major national transportation corridors and, in many instances, I

is a crucial hub for the national transportation system. These

! include highway, rail, waterway, and air transportation systems.  ;.

Further, the location of the General Electric nuclear fuel 9

l facility in Morris, Illinois and the numerous shipments of spent fuel to it raise issues of safety that are unique to Illinois.

There is a history in Illinois of routing nuclear fuel shipments through the metropolitan Chicago area and the existence of such high density residential and commercial areas in certain routes e__________r_-_____--________-. __~ T_J ~~

._ _ l _ _ _ _-

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• further heightens Illinois' interest in route-specific safety considerations.

Finally, the various states have been delegated respon-sibilities in relation to emergency response measures related to nuclear fuel transportation. Nothwithstanding the present federal regulatory scheme in relation to nuclear fuel transporta-tion issues, the necessity of specific shipments and route-specific safety concerns are justifiably seen as taking on regional and, oftentime, local significance and concern that are not presently addressed in a meaningful fashion at the federal level. It is for this reason that the Illinois Attorney General urges the adoption of the rule proposed by Wisconsin.

II.

THE FEDERAL REGULATORY GAP A significant report entitled Social and Economic Aspects of Radioactive Waste Management: Considerations for In-stitutional Management (hereinafter "the Report") was issued in 1984 by a' distinguished panel of experts under the aegis of the National Research Council whose members are drawn from the coun-cils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine.

The Report addressed numerous issues regarding the transportation of nuclear waste in the United States. One of those issues was the present regulatory framework (See pages 123

=

through 131).

_ _. . _ - . ~ .

~

• a The Report concluded at page 123:

First, a sufficiently broad-based and uni-form regulatory regime to assure the safe transport of radioactive wastes may not exists second, redundancies and incompleteness seem to exist in the current NRC/ DOT regulations; and, third, the role of the states in ensuring the safe transport of wastes within their ter-

_ritories needs to be addressed further.

The Report emphasized that the focus of regulation is on an NRC's licensee's role in supervising the transportation of nuclear materials but pointed out that this focus may be misdi-1 rected by observing:

f While carriers and drivers are subject to some direct regulation by the agencies, it is the licensee who bears the heaviest burden in vouching for safe transport. While HM-164 and the NRC sabotage regulations do give some at-tention to truck and driver safety and condi-tions on the open road, the focus of the former is relief from state and local requirement, while the focus of the latter is espionage and sabotage not conventional (and more likely) i accident safety for the highway-using public and surrounding com alties. The current reg-ulatory framework for radioactive waste and spent fuel can be analogized to air traffic control, where air freight customers, not air -

traffic controllers, have been made primarily .

responsible for the safe air transport of haz-ardous materials. As " traffic" increases, such a situation will not likely be allowed to con-tinue. (Report, p. 127) ,

The panel also concluded that the regulatory framework places maximum emphasis on cask integrity but that additional protection through special regulatory requirements applicable to transporta-tion modes and routes appeared appropriate.

In sum, the panel majority found that an underdeveloped regulatory framework currently exists for the transportation of spent fuel and high-level wastes. The federal governmental agencies involved defer to each other, with

• ~

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primary responsibility essentially delegated to NRC's reactor licensees.

The Report's comments on the present regulatory frame-work conclude that:

To prevent future accidents as the frequency of shipment grows and to forestall the adoption of a hastily conceived and costly federal regulatory regime in the wake of acci-dents, reform of the federal regulatory struc-ture, within the ample statutory authority for reasonable regulatory requirements that already exists, may be required. Thus, the panel recommends a careful evaluation of existing federal regulation of highway transport to assure that (a) a sufficiently broad and uni-form regulatory regime exists for the safe transport of radioactive wastes, (b) any redun-dancies and incompleteness in the existing NRC-DOT regulations have been eliminated, and (c) the needs of states to control safety on their highways are met.

The Illinois Attorney General submits that this conclusion is warranted and supported by the practice under the present frame-work. The U.S. Department of Transportation has repeatedly en-tered incensistency rulings in relation to state regulatory ef-forts to enhance the safety of shipments through the respective states. Implementation of the proposed rule would provide an arena for the expression of local concern that does not presently exist. -

Illinois has taken measures to develop emergency pre-paredness but more needs to be done through advance planning, t

commentary, and design so that both federal and state officials are not forced to react in ad hoc f ashion to perceived hazards.

Y The rule proposed by Wisconsin will significantly enhance public W

d d and environmental safety through advance consideration, delibera-tion, public discussion, and forward planning needed to insure the safety of the environment and potentially-affected citizens. I Adoption of the proposed rule will contribute to a closing of the regulatory gap.

III.

THE BEED FOR PUBLIC INPOT The Wisconsin petition addresses a glaring inadequacy in the current regulatory scheme. This is the absence of public comment and participation. In the end, it is the individual citizen and the integrity of the environment that stand to lose the most from an ill-conceived or inadequate safety component in a regulatory scheme. The proposed rule will allow for public input by concerned and affected individuals and groups. These citizens and groups often have a unique awareness of hazards en-demic to the transportation of nuclear waste through the geographical areas that they live, work, and play in. They should be heard as well as state and local governmental offi-cials. The public forum contemplated by the Wisconsin petition would do much to promote public confidence in the' regulators and minimize physical, health, and environmental hazards, to say nothing of the substantial psychological stress imposed on citizens living near transportation corridors and a much-too-prevalent mistrust of government " secrecy."

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CONCLUSION For all of the above reasons, the Attorney General of the State of Illinois would urge the Commission to adopt the pro-posed rule.

Respectfully submitted, NEIL F. HARTIGAN Attorney General State of Illinois o

By:

A'ssistant Il' lip 61s Att ney General 160 North LaSElle Str t, Room 900 Chicagn, IL 60601 (312) 793-2512 Edmund B. Moran, Jr.

Assistant Attorney General 160 North LaSalle Street, Room 900 Chicago, Illinois 60601 .

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' Dr. Nunzio Palladino, Chairman U. S. Nuclear Regulatory Commission . . .

1717 H Street N.W.

Washington, D.C. .

Dear Chairman Palladino:

We are writing you in regard to large numbers of spent nuclear in Illinoisreactor in the fuel coming shipmentsmonths. that are scheduled to take place All of these shipments will be traversing Illinois via highway or railway, man ,

proximity to the highly populated Chicago area.y As in c1cse we are sure '

you are aware, these shipments are a matter of concern to .

citizens and officials of Illinois.  !*

We are aware of the extensive regulations by the U. S. i Nuclear Regulatory Commission regarding the design and testing cf l

- the shipping casks and. the provisions regarding safety durir.g transport.

However, we feel that such a large number of i shipments precautions. in a relatively short time frame dictates additicnal We have already experienced at least one shipment ,

in which an empty cask was returned to the General Electric Morris Facility contaminated with radioactivity in excess of j United States Department of Transportation limits. Further, as your own regulations and the Department of Transportation's regulations recognize, (see 10CFR 0.73 etc.) there is the risk of L

radiological sabotage or theft of special nuclear material.

Additionally, the level of emergency response capability by the Nuclear Regulatory Commission in the event of a release, whether t

caused by accident or sabotage, appears inadequate.

The Illinois Department of Nuclear Safety and the Illinois D2partment of Law Enforcement have been ordered to inspect l

shipments of spent fuel originating in Illinois and to escort all '

such shipments transversing Illinois, irrespective of origin.

The large number cf shipments that originate, pass through er terminate in Illinois during the next twelve renths will place heavy the shipments. demands on our ability to continue inspecting and escorting assure the public Yet, we believe such. actions are necessary to safety.

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Dr. Nunzio Palladino U. S. Nuclear Regulatory Commission September 23, 1983 Page 2 Since the U. S. NRC has the prime authority and responsibility for regulation of such shipments, we are '

requesting that you impler.ent the following additional precautions: *

) 1. Perform thorough inspections of all shippers, carriers, l and receivers invclved in these shipments to ensure L that they have adequate written procedures, equiprent, f

and trained personnel to properly handle such a large number of shipments. .

f .

, 2. Perform pre-transport inspections of all spent fuel or

, empty cask shipments scheduled to originate, pass through or terminate in Illinois.

3. Require armed security escort of shiprents at all times during transit through Illinois.

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4. Assure emergency response capability which can be delivered to local jurisdictions through which these shipments will go.

Your cooperation in considering and implementing these

. additional precautions would be deeply appreciated. A response at your convenience, if at all possible within the next two

,. weeks, would be appreciated.

incere '

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( James . Thompso i Governor State of Illinois t , -

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Attorney Gener 3 Spate of Illinois e

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83rd GENERAL ASSEMBLY ,

State of Illinois

. 1983 and 1984 'Y". .

• E . .. -b M :16 Introduced April 13, 1984, By Representatives ChurchiU, Daniels, Hoffman, Ewing, Vinson, Davis, Pullen, HaUock and D. P. Friedrich.; . gg g, M.Li.% s 5zpv.-

NC" SYNOPSIS (Ch. III 1/2, pars. 4304 and 4305; new par. 4310) .

Amends the Illinois Nuclear safety Freparedness Act.

Increases fees for operators of nuclear power and storage facilities. Authorizes reimbursement to the Illinois Emergency Services and Disaster Agency, as well as local governments, for expenses incurred with respect to nuclear safety plans. Authorizes the Department of Nuclear Safety to accept grants, gifts and loans from both public and private sources in administering said Act. Effective innaediately.

LRB8308722JSjw '

Fiscal Note Act may be applicable t

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A BILL FOR .

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LRS8308722J8jtr I' .

'AN ACT to amend Sections 4 and 5 of the " Illinois Noelear 80 .

2 Safety Preparedness Act", approved September 14, 1979, as 81 3 amended, and to add Section 10 thereto. 82 4 Se it enacted by the People of the State of Illinois, SE 5 represented in the General Assembly:

6 Section 1. Sections 4 and 5 of the " Illinois Muelear 88 7 Safety Preparedness Act", approved September 14, 19'79, as 89 8 amended, are amended, and Section 10 is added thereto, the 90 9 amended and added sections to read as follows:

(ch.111 1/2, par. 4304) 92 10 Sec. 4. Persons engaged within this State in the 94 11 business of producing electricity utilizing nuclear energy or 95 i 12 operating facilities for storing spent nuclear reactor fuel 96

'i 13 for others shall pay fees to cover the cost of establishing 97 14 plans and programs to deal with the poss'ibility of nuclear 98 15 accidents. The fees shall be used exclusively to fond those ,

16 Departmental and other 4eee4 government activities defined as 99

, 17 necessary by the Director to implement and maintain the plans 100 18 and programs authorized by this Act. The 1111acis Emergency f

101  ;

19 Servlees and Disaster Agency and local governments incurring 102 4

20 expenses attributable to implementation and maintenance of 21 the plans and programs authorized by this Act may apply to 103 j 22 the Department for reimbursement of those expensess-end Upon 104 .

! 23 approval by the Director of such claims : t itt:d by 1:::1 106

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24 the Department shall reimburse such agency 'and 107 l 25 local governments from fees collected pursuant to this 108  :

26 Section, except that such; reimbursements shall not exceed 109 27 3350,000 forsuchAcancy,{nor$150,000, in the aggregate, for 110

! 28 local covernments ci:11 ' ::t  :::::d 0100,000 in any year. 111 29 Such fees.shall consist of the following: 112 30 (1) .A one-time charge of 8590,000 per nuclear power 114 ,

31 station in this , State to be paid by the owners of such 115 32 stations; h

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. t (2) An. additional charge of $240,000 per nuclear power -

117 2 station for 'which a fee under subparagraph (1) was paid 118 3 before June 30 ' ' - - ' ' - ' ' - - ' ' - " ' ' ' - - - - ' ' - - - -"

119 4 1982; -

5 (3) Through June 30, 1982, an annual fee of $75,000 per 121 6 year for each nuclear power reactor for which an operating

, 122 7 license

' has been issued by the NRC, and after June 30, 1982, 123 8 and through June 30 1984 an annual fee of $180,000 per year 124 9

for each nuclear power reactor for which an' operating license 125 10 has been issued by the NRC, ,

and after June 30, 1984, an 126 11 annual fee of 8400.000 for each nuclear power reactor for 127 l 12 which an operating license has been issued by the NRC. to be

! 128 13 paid by the owners of nuclear power reactors operating in 129 i 14 this State; i 15 (4) A capital expenditure surcharge of $1.400.000 per 131 e

16 nuclear power station in this State, whether operating or 132 17 under construction, shall be paid by the owners of such 133

18 station.

+

134

! 19 m 44+ An annual fee of $25,000 per year for each site

20 for which a valid operating license has been issued by NRC 135 21 g

' for the operation of an away-fron-reactor spent fuel storage 136 22 facility, to be paid by 23 the owners of facilities for the 137 i storage of spent nuclear fuel for others in this State; and j 24 m +4+ A fee assessed at the rate of $1,000 per cask 139 25 for truck shipments and $2,000 per cask for rail shipments of 141 26

spent nuclear fuel received at or departing from any nuclear -

. 27 power station or away-from-reactor spent fuel storage 142 28 29 facility in this State

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the owners of such 144 30 facilities.

[ 145 l'

L 31 (7) A fee assessed at the rate of $1.000 per cask for 147 32 shipments of spent nuclear fuel transversing the State to be 148

. 33 paid by the owner of such shipments.

~t 149 .

(Ch. til 1/2, par. 4305) -

t 34 Sec. 5. Within 30 days after the beginning of each State 151 h -

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LRS8308722JSju 1 ' fiscal year, each person who possesse'd a valid operating ~152 2 license issued by the NRC for a nuclear power reactor or a 153 1

3 spent fuel storage facility during any portion of the 154 4 previous fiscal year shall pay to the Department the fees 5 imposed by Section 4 of this Act. The one-time facility 155 6 charge assessed pursuant to subparagraph (1) of Section 4 156 7 shall be paid to the Department not less than 2 years prior 3 to Ocheduled comunencement of commercial operation. The 157 9 additional facility charge ass'essed pursuant to subparagraph 158 10 (2) of Section 4 shall be paid to the Department within 90 159 11 days Of June 30. 1982 ti: 00f::t'i:: d:t: :: thi: : ::d:t::7 160 12 ":t ri-4644.

. Fees assessed pursuant to subparagraph (4) of 162 13 Section 4 shall be paid in sis payments, the first, in ths 163 14 amount of 8400.000, shall be due and payable 30 days after 164

- 15 ge effective date of this Amendatory Act of 1984. 165 to subsequent payments shall be in the amount of $200,000 each.

17 and shall_ be due and payable annually on August 1, 1985 166 18 through August 1 1989, inclusive. Fees assessed under the 167 19 provisions of subparagraphs (6) and (7) ::i;;;;; :;i '5; of 168 ,

20 Section 4 of this Act shall be paid to the Department prior 21 to the movement ::::ipt of such shipments within this State. 170 (Ch.111 1/ 2, new par. 4310) 173 22 Sec. 10. The Department may accept and administer 175 23 according to law. Ioans , grants , or other f unds or gif t's f rom 176 24 the Federal Government and from other sources, public and 177 private, for carrying out its functions under this Act.  !

25 26 Section 2. This Act takes effect upon becoming a law. 181

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Northem States Powei Company t

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Minneapohs Mennesota 55401 Tewone (612) 330 5500

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April 4, 1985  !.0 ;% ~ 6-'.G ACM s '.te il.i Secretary of the Commission U S Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Section This letter is Northern States Power Company's (NSP) comments on the State of Wisconsin's Petition for Rulemaking (Docket No. PRM-71-10) dated December 13, 1984.

The Wisconsin petition should be denied. It would provide no additional safety benefits to the public over existing spent fuel shipment regulation. On the other hand, it:

1. Could unduly burden a utility attempting to ship spent fuel.

2. Creates a redundant and confusing regulatory scheme, ignoring the comprehensive system of federal regulation that already exists to govern spent fuel transportation.

3. Is inconsistent with the memorandum of understanding that describes the roles of the Department of Transportation (DOT) and Nuclear Regulatory Commission (NRC) in regulating radioactive material transportation.

co m EE" 4. Creates an unwarranted prejudice against spent fuel 34% A shipments while requiring no similar action to regulate the 80 S transportation of other hazardous materials, which can be

@ . eE more dangerous, do not have nearly as outstanding a

.b" transportation safety record and are much more widely tgg**C. y shipped.

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5. Ignores the vast amount of research on spent fuel transportation already completed.

028g Eh44 d: 6. Could have severe economic repercussions on a utility and its customers.

Furthermore, Wisconsin's real intent in this rulemaking proposal may be best gauged by its recent actions to unilaterally halt further shipments of radioactive materials until the shippers meet Wisconsin's imposed safety standards. On January 2, 1985, the state Department of

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2 Natural Resources issued an administrative order to NSP seeking a halt of planned spent fuel rail shipments until NSP complied with a detailed order (attached). The order would affect the rail shipment operations and require emergency response planning for accidents which are practically, if not physically, impossible. In March 1985, the DNR issued a similar order to Northeast Nuclear Energy Company (NNECO) seeking a halt to a planned NNECO shipment of " intermediate-level" radioactive materials (attached). Both NSP and NNECO have sought state administrative review of these orders.

Additionally, Wisconsin sought temporary injunctive relief in state court against any further NSP shipments. The state lost its motion for a temporary injunction. A decision is pending from the Wisconsin Circuit Court on the legal issues concerning the order.

These state administrative orders and the ensuing litigation are clear implications that Wisconsin does not seek responsible regulation of the hazards connected with spent fuel shipments. On the contrary, Wisconsin seeks either an outright ban upon such shipments, or to impose so many administrative barriers to shipments that shippers will either abandon their plans or route the shipments around the state.

Nuclear fuel cycle materials have been transported on a national basis for more than 30 years with an unsurpassed safety record; more than 5,000 commercial spent fuel assemblies have been shipped in this country without a single accident resulting in any release of radioactive materials. This excellent safety record is not mere happenstance. It is the result of broad and intensive regulation of spent fuel shipments by the federal government.

A vast amount of literature confirms not only the safety of spent fuel transportation, but the adequacy of the present regulatory scheme.

Over the past 18 years there have been more than 800 scientific and I technical papers examining radioactive material transportation. Drs.

J.C. Courtney and E.N. Lambremont of Louisiana State University examined 190 of those technical papers and conclude that "the risk to the general public from the transportation of radioactive materials is extremely low. The extensive amount of work which supports this conclusion reflects a remarkable international consensus." (Safety Issues in the Transportation of Radioactive Materials: A review of the Recent Scientific and Technical Literature, Dr. J.C. Courtney and Dr. E.N. Lambremont, February 1984).

The study goes on to address spent fuel shipments specifically:

"There is virtually no opportunity for a significant release of radioactive material during their transport from power plant sites."

This assumes that spent fuel is shipped as prescribed by the present federal regulations. Additionally, Courtney and Lambremont state that even under extreme accident conditions in densely populated areas it is virtually impossible to-expose large numbers of people to unacceptable levels of radiation. No other hazardous material has received the attention, analysis and degree of protection that spent fuel has, i

i i

3

,1 The petitioner provides no evidence that existing regulations are deficient. .Rather, the state offers vague statements meant to question the safety and regulatory adequacy of spent fuel shipments.

These statements clearly indicate that the petitioner neither

, adequately understands the regulatory scheme, nor has it sincerelv sought scientific opinions on the safety of spent fuel transportation.

4

Wisconsin's proposed rule would create a redundant and confusing ,

! regulatory scheme. It would require a shipper to fulfill the requirements of 10 CFR 73, comply with all DOT safety and routing

regulations and insure that the cask is capable of withstanding i accidents along the route. Such a rule is pointless; federal agencies

currently have ways of assuring licensee compliance without additional

requirements. ,

f A rule that requires a shipper to " demonstrate" that a cask can withstand "all reasonably foreseeable incidents" also is unnecessary j and, more important, would require repeated demonstrations of what i federal regulation already has accomplished. The NRC establishes the i technical requirements for casks, detailing what type of accidents casks must withstand. It then licenses casks according to these

specifications. A shipper would have to repeat not only the licensing i of a cask for each shipment but also repeat the scientific research .'l l used to establish current regulatory requirements. Such a rule would cost consumers millions of dollars and accomplish nothing.

! Petitioner's proposed rule also is inconsistent with the 1979 FRC-DOT i joint memorandum of understanding on responsibility for regulating the transportation of radioactive material. Wisconsin proposes that the NRC enforce "all applicable DOT safety and routing regulations." This i

would result in one of two situations, each of which is ridiculous on L its face: 1) two agencies duplicating enforcement of a single l

agency's regulations; 2) one agency (NRC) enforcing another's regulations. The latter situation would be, of course, unprecedented

~

in federal regulatory history and hardly represents a healthy trend in administrative law. Presumably such a regulation would also be in

violation of the Hazardous Materials Transportation Act and DOT regulations developed under that -act, since Congress in this law vests l responsibility for regulation of all hazardous (non-nuclear) materials  ;

in the DDT.

The proposed rule also would require a showing that the shipment l presents a radiological exposure less than the alternative of not shipping. Such a requirement is absurd and unnecessary. Federal r environmental impact statements have concluded that the current i regulatory regime for nuclear shipments assures there will be no significant risk to the public. Moreover, the November 1984 NRC denial of the rulemaking petition of Critical Mass Energy Project l found that additional rules for emergency response planning are

! unnecessary in light of the low risks arising from shipments.

e l The petitioner alleges the states lack "any meaningful input" into shipment decisions. Such is not the case. Federal regulations allow states to seek additional requirements on shipments to assure greater l

i

. _ _ __ _ ._u n___ _ _ _ _. ___ __ - _ _ _

4 protection to the public. However, such requirements must not unduly burden commerce and must not interfere with the federal scheme of uniform regulation of hazardous materials transportation. The real problem is that the petitioner does not seek to regulate transportation, but rather to block the shipments entirely, albeit through the means of administrative requirements.

Clearly, the State of Wisconsin is either unfamiliar with or has totally ignored regulations governing the transportation of spent fuel. As indicated above, numerous studies have examined such shipments, the federal government has created a regulatory scheme to protect the public's health and safety and, most important, spent fuel currently is safely shipped. The petitioner's proposed rules add nothing to safety and should be rejected.

D& '

David Musolf Manager - Nuclear Suppo t Services cc: Regional Administrator - III NRR Project Manager, NRC Resident Inspectors, NRC G Charnoff Director NRR L. Trosten T. Zaremba J. Bizzano S

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4 i. l BEFORE THE STATE OF WISCONSIN DEPARTMENT OF NATURAL RES,0URCES In the Matter of the )

Preparation by the Northern )

States Power Company of ) SPECIAL Minnesota of a Spill Prevention ) ORDER and Mitigation Plan for the ) #2A-84-1246 Shipment of Spent Nuclear . )

Reactor Fuel through the State )

of Wisconsin by Rail )

FINDINGS OF FACT ,

1. '

Northern States Monticello Power Nuclear Company Generating of Minnesota Plant owns and opera {es the in Minnesota.

2. Northern States Power Company of Minnesota proposes to ship 1,058 spent fuel assemblies, which are currently in storage at the Monticello Nuclear Generating Plant, to a General Electric Company storage. facility in Morris,' Illinois by rail. Two shipments of spent fuel assemblies (36 assemblies in each shipment) have been made as of the date of this Order.

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3. Northern States Power Company of Minnesota has shipped, ar4 proposes to continue to ship, the spent fuel assemblies on a Burlington Northern rail line which runs from Prescott, Minnesota to East Dubuque, Illinois.

through the State of Wisconsin along the Mississippi River.

4 Northern States Power Company of Minnesota has submitted to the Department of Natural Resources a document entitled " Spent Nuclear Fuel Shipment Emergency Plan and Emergency Plan Implementing Procedures", dated October 1,1984, and two letters (dated Ncvember 29, 1984 and December 5, 1984). .The Department of Natural Resources has found these submittals to be inadequate in that there is no satisfactory comprehensive description of how a radiological release resulting from an incident would be '

effectively contained and cleaned up, nor has Northern States Power Company indicated how it would incorporate a spill prevention and mitigation plan into its overall emergency procedures for the campaign.

CONCLUSIONS OF LAW ' ~ 1

1. The spent fuel ass'emblies described in Finding of Fact #2 are a " hazardous substance" within the meaning of that phrase as defined in section 144.01(4m). Wisconsin Statutes.

~;

2. The Department of Natural Resources has the authority under section ,

144.76(4), Wisconsin Statutes (as amended by 1983 Wisconsin Act 27) to issue orders requiring that preventive measures be taken by any person possessing or having control over a hazardous substance if the Department finds that existing control measures are inadequate. -

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3. The order contained herein is enforceable under sections 144.98 and 144.99, Wisconsin Statutes.

ORDER Pursuant to section 144.76(4), Wisconsin Statutes, llorthern States Power Comp:.ny of Minnesota is hereby ordered to-

1. Prepare a spill prevention and mitigation plan, prior to further shipments, which contains the following:

A. An adequate training program shall be developed for all personnel i involved in the shipment of the spent fuel.

i

1. Records shall be maintained on the personnel who have successfully completed the trafning program in tNeir responsibility area as outlined in the plan. *

2. Periodic training shall be conducted to maintain an adequate level of performance.

. B. Preparedness actions which would assist in prevention or mitigation shall be developed. ,,

1. Equipment and methods used to transport spent fuel shall be designed to minimize emergencies:

.. a. Rail cars shall undergo testing at least once a year and an inspection of the car shall be made prior to each shipment. Inspection and testing shall be documented.

b. All shipments shall be discontinued if a ten-year floodstage along the designated route is reached. All tracks, bridges and causeways shall be inspected after.a ten-year floodstage before the next shipment.

. - c. All oncoming rail traffic shall be stopped o.r side-tracked during a passing shipment or in the alternative document i that the net result of sidetracking or stopping oncoming '

j

,, traffic would compromise safety or impede interstate i commerce.

d. All rail crossings (of roads and other railroads) shall be controlled either mechanically or manually.

, e. The casks shall be inspected for integrity prior to each

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shipment and upon completion of shipment.

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f. Casks shall be properly placarded and labeled in accordance

with Title 49 Code of Federal Regulations Subchapter C.

1 .

! 2. Security measures dealing with natural or human intervention 4

shall be fully detailed in conformance with the current interim regulations: Title 10 Code of Federal Regulations, section 73.37.

! 3. Identify contractors and resources (equipment, personnel, etc.),

their locations and estimated response time for all classifications of incidents.

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4. Emergency coordinator roles shall be explained.

a. A primary emergency coordinator shall be designated.

b. An alternate emergency coordinator shall be designated.

C. Implementation of the prevention and mitigation plan shall address

.- the following specific issues:

1. Detailed procedures for incidents involving an accident with fire, an accident with a total release of cask contents to surface waters and an accident with no release to either surface i

waters or to the air share fully and completely detail:

a) Site security during an incident.

b) Emergency response procedures.

• c) Containment and contrp1 procedures .

d) Recovery procedures :fsr a' derailment involving a total release of cask contents to surface waters and wetlands;

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_ . . car and cask immersed in surface waters with no release of cask contents; car and cask derailed in adjacent wetlands with no release of cask contents; a derailr'ent on upland with no loss of cask contents; and an incident on uplands involving a total loss of cask contents due to a fire.

4 e) Clean-up of the site and mitigation of any subsequent adverse impacts including:

1) How and where will the contaminated caterial be temporarily stored? -

2) How and where will the contaminated material be permanently stored?

3) How will the site be restored and how will any adverse impacts be mitigated?

2. An emergency equipment inventory which is responsive. to the i

above three scenarios shall be compiled, and updated yearly, to i

it.clude:

a. Types of recovery, clean-up and containment equipment.

! b. When and where will the equipment be stored and what is the ownership of the equipment.

c. The capabilities of all equipe.cnt.

d. The date of last service and condition of equipment.

. e. The availability of qualified operators shall be indicated.

l 2. Cease the shipping of additional spent fuel assemblies from the Monticello .

j Nuclear Generating Plant until a spill prevention and mitigation plan, which meets the requirements in paragraph 1 of this Order, is submitted .

to, and is approved by, the Department of Natural Resources.

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. 4 . 5 NOTIEE OF ADMINISTRATIVE REVIEW RIGHT This Order shall be effective 10 days after it is served unleis Northern States Power Company of Minnesota requests a hearing within that 10-day period, of Natural byResources.

serving a petition for hearing on the Secretary of the Department If a nearing is requested, this Order shall not become effective issued a decision affirning this isOrder.

until after the hearing concluded and the hearing examiner has section 227.11(2), Wisconsin Statutes. This notice is provided pursuant to DatedatMadison, Wisconsin,this_[ day of January,1985.

STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES FOR THE SECRETARY

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)_u George E. Meyt3, Aaministratog Division of Enforcement 595BK '

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. . FEB 251985 RECEIVED.

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STATE OF WISCON3!N 910 m DEPARTERT OF NATUFAL RESOURCES gg

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Ir the Matter of the Preparation by )

the Northeast Nuclear Enerpy Company ) ,

sf Connecticut and the tur ington ) 3ptCIAL l I

Worthern Rat 1 road of Spill Prevention ) ORDER '

and Ritigation plans for the Shipment 1 ftA-45-1152 ,

i of Low-!.ew) Radioactive Waste threegh)

o the 5tste of Wisconsin by Rail )

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...................)

FINDIWts or FACT

1. Northeast Nuclear Energy Company of Connecticut (NCC), a subsidiary of i Northeast Utilities, owns and operates the Millstone Nuclear Pouer station, Unit: I and 2, in Cannecticut.

2. Northeast Nucisar Energy Costany of Connecticut proposes to ship low-level.

(intermediata) radioactive waste from the Millstone Nuclear Power Statioe in Connecticet to a disposal facility in Handford, Washingt.on by rall.

3. Northeast Nuclear Energy Company of Connecticut has shipped, and proposes to continue to ship, tne radioactive waste on a rail line owned by the

! Ourlington Northern Railroad, which runs from East Dubuque, Illinois through Wisconsin, along the Mississippi River, to Prescott, Wisconsin.

4. Representatives of Northeast Nuclear Energy Company of Connecticut (MCO) have met with Department of Natural Resources' personnel to discuss the measures which have been taken by MCO and Burlington Northern to prevent accidents during the shipment of the radioactive waste and the contin plans uhich have been developed to prevent, or contain and clean-up, gency discharges of radioactive weste into the environment in the event of an accident.

. ' 5. The Dese'rtunt firds t' hat MCO's and sur11 ton Northern's existing contretenusures (their Quality Assurance / ality Control precedures and the "M Assistance Involvetfa the Transportat< Agreement by and Among' Electric Utilities on of Mr. lear Waste. developed by the

". Institete of Nuclear Power Operations and signed by fifty-one att11 ties 1 including Northeast Utilities) are inadequate to prevent or minimize the r i harmful effects from the discharge of radioactive waste should an accident occur.

COMM.USIONS OF LAW ,

1. The low-level (intermediate) radioective weste described in Finding of Fact #2 is a " hazardous substance" within the meaning of that phrase as defined in section 144.m(4e). Wisconsin Statutes.

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2. The Department of Natural Resources has the authority under section 144.76(4), Wisconsin Statutes, to issue orders requiring that preventive measures be taken by any person possessing or having control over a ,

hazardous substance if the Department finds.that ex' sting control measures are inadequate to prevent discharges.

3. The Order contained herein is enforceable under sections 144.98 and 144.99, Wisconsin statutes.

ORDER

. Pursuant to section 144.76(4), Wisconsin statutas, the Northeast Nuclear Energy Company of Connecticut and the Burlington Northern Ratiroad are hereby ordered to: ,

1. prepare spill prevention and mitigation plans prior to further shipments, which compile with the following minimum requirements:

A. Equipment used to transport radioactive vaste shall be designed and

- tested to minimize tha possibility of an accident and a discharge of radioactive waste:

1. Rail cars shall undergo testing at least once a year and an inspection of the car shall be made prior to each shipment.

Inspection and testing shall be documented.

2. Casts shall be inspected for integrity prior to each shipment and upon completion of the shipment.

g. Casks shall be properly placarded and labeled in accordance with Title 49, Code of Federal Regulations, Subchapter C. .

C. All radioactive wasta shipments shall be discontinued if a ten-year l

recurrence interval floodstage is reached along the designated i route. All tracks, bridges and causeways shall be inspected after a

,- ten-year floodstage before the next shipment.

D. Detailed procedures chall be developed for incidents involving: an .

accident with a fire; an accident involving partial or total f

submersion of a cast in estar; and a derailment on uplands. The proceesres shall include: ,

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1. Site security during an incident.

2. Emergency response procedures. ,

l 3. Recovery procedures for a derailment involving car and cast

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- insnersed in surface waters; car and cask derailed in a wetland; ~

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and derailment on up11.nd.

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4. Clean-up of the site end sitigation of any subsequent adverse environmental impacts.

A list of available contractors, their resources (equipment.

5. l personnel, etc.) their locations, and estimated response times. ,

l E. An emergency equipment inventory shall be complied and updated l yearly, which includes all equipment necessary to respond to the l

l

' three types of accidents specified in paragraph 0, above, and which lists the following information:

1. Types of recovery and clean-up equipment available.

2. When and where the equipment will be stored and the equipment's ownership.

3. The capabilities of the equipment.

i 4 The date of last service and the condition of the equipment. i

5. The availability of qualified operators. ,

!- 2. Northeast Nuclear Energy Company of Connecticut and Burlington Northern ,

- Railroad shall cease the shipment of additional low-level (intermediata) radioactive waste from the Millstone Nuclear Power Station through Wisconsin untti spill prevention and mitigation plans, which meet the

- requirements of paragraph 1 of this Order, are submitted to, and are i . . approved by, the Department of Natural Resources. -

NOTICE OF RIGHT 70 ADMIN!3TRAT!YE REY!EW This Order shall be effective 10 days after it is served unless Wortheast

- Nuclear Energy Company of Connecticut or Burlington Northern Railroad requests a hearing within that 10-day period, by serving a petition for hearing on the Secretary of the Department of Natural Resources. If a hearing is requested, i

this Order shall not become effective until after the hearing is concluded and i -

the hearing examiner has issued a decision affiming or modifying this Order.

This notice is provided pursuant to section 227.11(1), Wisconsin Statutes.

Dated at Madison, Wisconsin, this 15 0 day of February, loss.

STATE OF WISCON5IN

• DEPARTENT OF NATURAL RESOURCES FOR THE SECRETARY l

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George E. Meytr Aaministragr d Division of EAforcement v l 3g74I j

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.0c m m e RETITION BULE nod s G2 * *"> STATE O? COLOMJO

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Demer. Cotosado 80203-1792  ;.C, w a m un 85 + -5 A'0:12 %i p r;2 .y . .. e t ' A . R.cwd D umm 00CKETiNG i SEW.C! C*""**

April 3,1985 Secretary of the Comunission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing & Service Branch To the Secretary of the Cosentssion:

The State of Colorado wishes to make the following cossnents on Docket No. PRM-71-10 regarding the State of Wisconsin's filing of petition of rulemaking for spent nuclear fuel shipments.

The State of Colorado shares the State of Wisconsin's concerns for the adequacy of consideration given to transportation impacts

! resulting from spent nuclear fuel shipments. While the

.; transpertation of all radioactive materials has had an enviable j safety record, it would be foolhardy to beccme complacent and ignore the potential impacts that could result from a serious transportation accident involving spent nuclear fuel. Therefore, every step of the transportation process, from the decision to ship, to the shipping mode, to the choice of route must be carefully

, assessed.

In order to safeguard the public and the environment, it is i necessary to assess firstly, whether shipment of a load of spent i

• nuclear fuel is actually in the best interests of the public health and safety. If such a shipment is necessary, the safest mode of i transportation and safest route must then be determined. y

Historically, adequate cor. sideration of all of these factors has -

been lacking. To remedy this situation, the State of Wisconsin has proposed amendments to 10 CFR Part 71 requiring advance approval for transportation of spent nuclear fuel.

The State of Colorado strongly concurs with these proposed amendments. Colorado does believe some revisions would improve these requirements. Colorado suggests that the amendments allow for an application and approval / denial for a series of shipments from )

one point of origin to one destination. The provision regarding l Environmental Impact Statements and Environmental Assessments should .

l clarify when such Statements or Assessments are and are not necessary.

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/ ^de' S. Wigginton, 4000 MnBB APR 8 1985 James J. Henry, 113055 Frank Young. AR-5027 W h card... - .'

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Secretary of the Consission .

April 3,1985 Page Two The State of Colorado urges the Nuclear Regulatory Commission to adopt the proposed amendments to 10 CFR 71, as modified by the suggestions above. It is absolutely essential that decisions involving the shipment of spent nuclear fuel be made with a full understanding of the impacts involved and af ter consultation with the affected states.

Sincerely, a.5-Ric ard D. Lamn Gove nor l

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UdFL46W/ 9 MIDDLE SOUTH SERVICES,1NC1BO ,E5tOOO/N LEANS.LA 7glE5,iniiFp45^ Nb 5252 Gadiv e w..:s 9 %.. &. .. ..

April 4, 1985 Secretary of the Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 ATTN: Docketing and Service Branch These coments are provided by Middle South Services, Inc. (" Middle South")

on behalf of Arkansas Power & Light Company, Louisiana Power & Light Company, and Mississippi Power & Light Company, in regard to the petition for rule-making (Docket No. PRM-71-10, 50 Federal Register 4866, February 4, 1985) by the State of Wisconsin. Middle South is in general agreement with and supports the coments filed by the Electric Utilities Companies' Nuclear Transportation Group.

The petitioner has not identified a need for adoption of the proposed rule, and the petition contains no new data or infonnation t.iich would point out in-adequacies in the current regulatory basis. Middle South believes that the current transport regulations of the Comission and the corresponding regulations of the U.S. Department of Transportation provide significantly more than adequate assurances of the public health and safety.

If there are any questions regarding these coments, please do not hesitate to contact me.

Sincerely, W. f. Y File: 041-01 h (6M k'. 3~'

047-26 cc: Mr. J. F. Fager Mr. L. L. Kittrell Dr. T. W. Schnatz NED/QA Managers Nuclear Fuel Subcomittee f fj ,

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• WR James . Henry, 1130 SS 81965 Frank Young, AR-5037 Acnnowledged by cani....mmGiT ~

SERVINGt MICDLE SOUTH LITILITIES.INC.

• AAKANSAS POWEA & LIGHT COMPANY . Ul56ANA POWEA

& LIGHT COMAANV . MISSISSIAPI AOWE A & LIGHT COMPANY . NEW CALEANS AUBLIC SEAVICE INC

DOCKET NUMBOI' .

PRllD/~/O V PETITION RULE ,

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• r TUES. MORN 4/2/85 BREEZY CLOUDY 33*F WON g gush f

Howdy Comissioners cv e3 I rite to urge adoption of the State of Wisc. petition to control and oversea trans of nue A radioactive material ~& provides a means of citizen input it seems that because U S citizens both can benefit &

suffer from the nuc industry & the transport of its material, there should be a vehicle be which their opinion can have affect - the nuclear indus, isn't being singled out by me as an industry closed to citizen input - but the same chance of input & influence should be true for any econ activitity affecting the econ & physical health of citizens & the Land as which Life is based - such vehicles of input would go far to remove blame for environmental degradation from industry & force the citizens to pay attention to what we ask the industries to do & how it is done - we ask for responsibility -

now we can only sit & grumble & blame others for the results of our apathy IN APPRECIATION OTIS Michael J. Riegert (OTIS)

N 342 ORIOLE DR Stetsonville, Wis. 54480 Typed by Docketing & Service Branch fron original. 1 Original could not be reproduced.

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Dear Mr. Chilk:

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Enclosed herewith please find a signed original of the comments prepared by the Electric Utility Companies' Nuclear Transportation Group on the above-referenced petition for rulemaking.

. Sincerely, f

w Ln/l[/w h-Leonard M. Trosten 1

Attorney for the Nuclear Transportation Group

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Comments on Qocket No. PRM-71-10s ...

Wisconsin Petition for Rulemaking '" I'52 50 Fed. Reg. 4866 (Feb. 4, 1985)

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These comments on the Petition for Rulem4hj,QgfM6Eled on December 17, 1984 by the State of Wisconsin (" Wisconsin Petition") pursuant to 5 U.S.C. 5 553 (ISS2),,and 10 C.F.R. ,

S 2.802 (1984), are submitted to the Nuclear Regulatory Commission (" Commission" or "NRC") on behalf of the Electric Utility Companies' Nuclear Transportation Group (" Group"). The Group consists of 37 investor-owned and publicly-owned electric utilities responsible for the construction or operation of 99 nuclear power reactors.1! The Group is vitally interested in 1/ The members are Alabama Power-Company, Arizona Public Service Company, Baltimore Gas & Electric Company, Boston Edison Company, Carolina Power & Light Company, Commonwealth Edison Company, Consolidated Edison Company of New York, Inc.,

Duke Power Company, Duquesne Light Company, Florida Power &

Light Company, Georgia Power & Light Company, Gulf States Utilities Company, Houston Lighting & Power Company, Indiana &

Michigan Electric Company, Kansas City Power and Light Company, Kansas Gas and Electric Company, Middle South Services, Inc., Nebraska Public Power District, New York Power Authority, Niagara Mohawk Power Corporation, Northeast _

Utilities, Northern States Power Company, Pacific Gas & -

Electric Company, Pennsylvania Power & Light Company, Philadelphia Electric Company, Public Service Company of Colorado, Public Service Electric & Gas Company, Rochester Gas and Electric Corporation, Sacramento Municipal Utility District, South Carolina Electric & Gas Company, Southern California Edison Company, Texas Utilities Generating Company, Union Electric Company, Virginia Electric & Power Company, Wisconsin Electric Power Company, Wisconsin Public Service i Corporation and Yankee Atomic Electric Company. The Edison Electric Institute supports the Group financially and  !

participates in its activities.

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the effect of federal, state, and local laws and regulations on the ability of electric utilities to operate nuclear power plants safely, prudently, and economically and to transport in the same manner the fuel cycle materials essential to that operation.

Summary of the Group's Comments The Wisconsin Petition requests the Commission to require advance NRC approval for the transport of spent fuel.

Under the proposal, the licensee would have to apply for NRC

~

approval to transport, and such application would have to be noticed in the Federal Register and could be the subject of a public hearing. Moreover, NRC approval of the application could require preparation of an environmental impact statement.

The Wisconsin Petition rests on the false premise that transportation of spent fuel under the current regulatory framework is so hazardous that it should only be permitted following a specific NRC determination of the need for and the risks of the proposed shipment. The Wisconsin Petition has failed to demonstrate that there is a valid factual or legal basis for the proposed rule. The Commission has already L addressed the issues raised by the Wisconsin Petition that are within the NRC's jurisdiction and has recognized the coordinate responsibilities of the U.S. Department of Transportation

(" DOT"). The Commission has properly determined that there is

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reasonable assurance that the public health and safety and the common defense and security are adequately protected by the Commission's current spent fuel shipment regulations coupled with those of the DOT.

In reaching these judgments, the Commission ha.s fully complied with all applicable statutes, including the National Environmental Policy Act of 1969. The NRC has repeatedly concluded, based on a wealth of data and studies, that shipment of spent fuel under current regulations will not have a significant impact on the environment. The Wisconsin Petition contains no new data that contradicts the NRC's prior e

determinations.

Accordingly, the Commission should deny the Wisconsin Petition, since the proposed rule would be redundant, unnecessary, and without legal foundation.

i Detailed Comments I. Current Regulatory Framework For Transportation Of i Spent Fuel

• In order to place the Group's critique of the Wisconsin Petition in context, it is necessary to recapitulate the current

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NRC regulatory framework governing the transport of spent fuel

! and the relationship of this framework to that of the DOT's l

regulations. An understanding of each agency's regulatory structure and the extent to which the two interlock is necessary to appreciate the flaws in, and the inappropriateness of, the l l

Wisconsin Petition.

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A. Regulation of Transportation by the NRC The Atomic Energy Act of 1954, 42 U.S.C. SS 2011-2284-(19 82) (" AEA") , as amended, authorizes the NRC to license and regulate the receipt, possession, use and transfer of " byproduct material," " source material," and "special nuclear material."

This jurisdiction includes the authority to regulate the packaging, shipment, and carriage of spent fuel.

Pursuant to this authority, the NRC has issued regulations governing the delivery and transfer of spent fuel, 10 C.F.R. Part 70 (1984), the packaging and transportation of spent fuel, id. Part 71, and the physical protection of spent fuel in transit, id. Part 73. These regulations effectively require several NRC approvals, either by general or specific license or by other applicable authorization, prior to the transport of spent fuel. These regulations also provide for full public participation in the development of the NRC's

{ transportation requirements, including hearings as appropriate.

i The approvals by general license or.other authorization are based on generic determinations regarding the safety of spent fuel transport. For example, the NRC has issued a general license to possess spent fuel for transport. 10 C.F.R.  ;

S 70.20a(a) . It nas also issued a general license to any licensee of'the Commission to transport, or to deliver to a carrier for transport, spent fuel in a package for which a NRC

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approval has been issued. Id. at 5 71.12(a). The authority to transport under this second general license is subject to several requirements including, inter alia, the adoption by the licensee of a quality assurance program specifically approved by the Commission, pursuant to 10 C.F.R. SS 71.101-137, prior to the use of any package for the shipment of licensed material.

The NRC's approvals by specific license or authorization are based on determinations regarding the safety2 / and physical protection of spent fuel transport. For example, a licensee must maintain, or arrange for, a physical protection system which shall provide for, inter alia, advance approval by the NRC of the routes used for road and rail .- '

shipments of spent fuel, and of any U.S. ports where vessels 1

carrying spent fuel shipments are scheduled to stop. 10 C.F.R.

S 73.37 (b) (7) . The NRC considers those issues within its jurisdiction, including radiological health and safety and safeguards, prior to a grant of these specific approvals.

Moreover, if the shipment is to involve a specific i license or license amendment, the Commission must determine the need for an environmental impact stctement or an environmental I

assessment. 49 Fed. Reg. 9351, 9385-86 (March 12, 1984), to be L codified at 10 C.F.R. S 51.25. A specific license or license 2/ As discussed more fully in I.B., infra, NRC shares with DOT safety jurisdiction over spent fuel transportation.

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amendment may, in unusual circumstances, be required for an action associated with spent fuel transport. For example, in Duke Power Company (Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), 14 N.R.C. 307 (1981), the Atomic Safety and Licensing Appeal Board authorized a materials license amendment to allow the highway transshipment of 300 spent fuel assemblies between two nuclear power plants for storage at the second plant. The amendment application sought authorization for the storage of the spent fuel and not for its transport ger se, which was already authorized by 10 C.F.R. S 71.12. 14 N.R.C. at 309.

It is well settled under general principles of administrative law that the NRC may grant its authorizations for spent fuel shipments by either general or specific license. The former are, in effect, rules. Yet where an administrative agency may proceed by either rulemaking or adjudication, which includes specific licensing, the choice between the two "is one that lies primarily in the informed discretion of the administrative agency." SEC v. Chenery Corp., 332 U.S. 194, 203 (1947), quoted in Nueces County Navigation District No. 1 v.

ICC, 674 F.2d 1055, 1065 (5th Cir.), cert. denied, 459 U.S. _

l 1035 (1982).

In sum, the NRC has fully considered the subject of the Wisconsin Petition and has properly concluded that case-by-case examinations of spent fuel shipments are not necessary because I

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the public health and safety and the common defense and security are adequately protected by the current regulatory framework.

This conclusion is supported by a Final Environmental Statement (NUREG-0710, discussed inf ra) and other studies performed by the NRC.

B. Regulation of Transportation by the DOT The NRC shares with the DOT the statutory authority to regulate the transport of spent fuel. Certain responsibilities, including the regulation of routing of spent fuel shipments, are exercised by the latter.3/

.The Hazardous Materials Transportation Act of 1974

("HMTA"), 49 U.S.C. SS 1801-1812 (1982), authorizes the DOT to promulgate regulations for the safe transport in commerce of hazardous materials, including spent nuclear fuel. Under the authority of the HMTA, DOT has issued comprehensive regulations applicable to carriers and shippers of spent fuel. These regulations govern such matters as packing, repacking, handling, labeling, marking, placarding, and routing, and the marking, maintenance, reconditioning, repairing, or testing of a package or container to be used in hazardous materials transport. --

Pursuant to this authority and after extensive public hearings, the DOT issued in 1981 a final rule governing the 3/ Commonwealth Edison Co. (Shipment of Irradiated Nuclear Fuel from west valley, N.Y.), 18 N.R.C. 726, 732-733 (1983).

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l highway routing of radioactive materials, designated HM-164 and codified at 49 C.F.R. $ 177.825 (1984). The rule applies .

general routing requirements to shippers and carriers of low-level radioactive materials and specific routing requirements for " highway route controlled quantities" of radioactive materials, including spent fuel.

In addition to the EMTA, the Federal Railroad Safety Act of 1970 ("FRSA"), 45 U.S.C. SS 421-441 (1982), authorizes j the DOT to prescribe rules, regulations, orders and standards to I

govern all aspects of railroad safety. However, the DOT has chosen not to exercise its authority to issue routing regulations relating to railroad shipments.4/

i The line of demarcation between NRC and DOT jurisdiction and authority to regulate radioactive materials transport is specified in a Memorandum of Understanding between the two agencies. 44 Fed. Reg. 38,690 (1979). Pursuant to the

Memorandum of Understanding, each agency enforces through its

! own rules those regulations of the other agency that are l

4/ See 43 Fed. Reg. 36,492 (1978) (HM-164 Advanced Notice of = ,

i Proposed Rulemaking) ("Only highway routing of radioactive materials will be considered"); 45 Fed. Reg. 7140, 7151-52 (1980) (RM-164 Notice of Proposed Rulemaking) ; see also Hazardous Materials Transportation Act and National Transportation Safety Board Authorizations: Hearing Before the Subcomm. on Transportation and Commerce of the House Comm. on Interstate and Foreign Commerce, 96th Cong., 2d Sess. 14-15 (1980) (prepared statement of Howard J. Dugoff, Administrator, i Research and Special Program Administration, Department of j Transportation).

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relevant to the transport of spent fuel. The NRC, in consultation with the DOT, is responsible for the promulgation-

) of safety standards to govern the design and performance of

, packages for the transport of highway route controlled quantities of radioactive materials. The NRC also exercises

" safeguards" jurisdiction and is thereby responsible for the physical protection of spent fuel in transport. Packaging and

. physical protection of radioactive materials are addressed in 10 C.F.R. Parts 71 and 73, discussed supra. Those aspects of radioactive materials transport for which the DOT is responsible are. addressed in 49 C.F.R. Parts 171 through 177.

! II. Determination Of Environmental Effects Of Transportation The NRC has on several occasions assessed the

environmental effects of transportation of spent fuel and other radioactive materials by all modes and has in each instance determined that those effects are small and that NRC's transportation regulations are adequate. In this connection, q NRC has also considered the environmental effects of alternatives to the present regulations and methods of i

transport. Thus the Commission has fulfilled its mandate under  ;;

the National Environmental Policy Act of 1969 ("NEPA"), 42 i

U.S.C. SS 4321-4370 (1982).

! For example, the Commissio'n announced in 1975 its intention to re-evaluate the then-existing regulations governing

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the air transport and packaging of radioactive materials. 40 Fed. Reg. 23,768 (1975). As part of this rulemaking proceeding, the NRC, pursuant to NEPA and 10 C.F.R. Part 51, prepared a Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes, NUREG-0170 (December 1977). The statement considered alternatives to

projected spent fuel shipping practices. The NRC concluded, in part on the basis of NUREG-0170, that its regulations were adequate to protect the public against any unreasonable risk

• from such transport, and that no changes in the regulations were needed to improve safety. 46 Fed. Reg. 21,619 (1981)

(withdrawal of advance notice of rulemaking). The Commission reaffirmed its conclusion on the adequacy of its nuclear

, transport regulations when it promulgated regulations requiring

, prenotification of spent fuel shipments. 47 Fed. Reg. 596 i

(1982). The Commission similarly confirmed the adequacy of its regulations when it denied a petition for rulemaking that sought the promulgation of regulations to amend those currently governing routing, emergency planning, and financial responsibility. 49 Fed. Reg. 44,502 (1984). This petition had l raised' issues similar to those raised in the Wisconsin =

Petition. The NRC determined, however, that "each of the issues

. . . has been substantively resolved." 49 Fed. Reg. at 44,505. Indeed, the Commission is presently considering a modification of its stringent regulations for the physical I

t

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protection of spent fuel in transit. In light of recent studies by the NRC and the Department of Energy (" DOE") which show the-risk of sabotage to be much less than previously assumed, proposed amendments to these regulations would relieve licensees i

of certain "non-essential" safeguards requirements. 49 Fed.

Reg. 23,867 (1984).

It is in view of these determinations that the i Ccamission has consistently maintained that a specific spent fuel shipment is not an action significantly affecting the i environment which would require an environmental impact

• statement under Section 102(2) (C) of NEPA, 42 U.S.C.

5 4332 (2) (C) (1982) . Commonwealth Edison Co. (Shipment of ,

Irradiated Nuclear Fuel from West Valley, N.Y. ) , 18 N.R.C. 726, 734 (1983).E/ The Department of Transportation has also examined the environmental effects of its regulatory activities. For example, the DOT performed an Environmental Assessment of its RM-164 rule, concluding that its routing rule 7 would have no significant impact on the environment.1/ The i

validity of this determination has been upheld by the j . _

5/ See also 49 Fed. Reg. at 9385, to be codified at 10 l E.F.R. 5 SITYI(c) (12) (categorical exclusion for review and

! approval of transporation routes pursuant to 10 C.F.R. 5 73.37).

i 6/ Final Regulatory Evaluation and Environmental Issessment: HM-164. See Draft Environmental Assessment, 45 l

Fed. Reg. 7140, 7152 (TFIO) (summary of draf t assessment) .

I i

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courts.1/ Accordingly, these is no basis for Wisconsin's proposal that an environmental impact statement may need to be-prepared for each approval of a spent fuel shipment.

III. Determination of Need for Spent Fuel Transport The Wisconsin Petition " requests that the NRC exercise its regulatory authority to ensure that both the need for and the safety and environmental consequences of proposed shipments

have been considered in a public forum prior to approval of the shipment and route." Pet. at 1. This request proceeds from two false assumptions. The first is that proposed shipments of spent fuel under the current regulatory framework are so dangerous or environmentally harmful that they should only be permitted in the event of dire need. There is no basis for this assumption.8/ The second faulty premise is that the NRC possesses the legal authority to determine the "need" for proposed shipments. In fact, the "need" to transport spent fuel l

7/ City of New York 'i. Department of Transportation, 539 F. l Supp. 1237 (S.D.N.Y. 1982), rev'd on other grounds, 715 F.2d ~~

i 732 (2d Cir. 1983), appeal dismissed and cert. denied, 104 S. '

Ct. 1403 (1984). i 8/ See, e.g., Letter from Herzel H.E. Plaine, General CounseI7 Nuclear Regulatory Commission, to Hon. James J.

Howard, Chairman, House Committee on Public Works and Transportation (June 15,1985) (expressing NRC views on H.R. 761 and H.R. 4850, 98th Cong., 2d Sess. (1984)).

l

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has already been determined.by Congress. The NRC itself has no authority to make such a determination.1/

The thrust of the Wisconsin Petition, with respect to shipment of spent fuel to temporary off-site storage locations

as the result of the lack of adequate on-site capacity, is that

, . . . no federal agency has considered the need for the shipments . . . Pet. at 4. As noted earlier, Congress has already addressed this issue. For example, the Nuclear Waste

! Policy Act of 1982 ("NWPA"), 42 U.S.C. 55 10101-10226 (1982),

4 requires the Department of Energy to provide not more than 1900 metric tons of interim storage capacity, prior to the establish, ment of a permanent high-level waste repository, for spent fuel f rom civilian nuclear power reactors that cannot e

reasonably provide adequate storage capacity on site. 42 U.S.C.

S 10155(a). This capacity is to be made available only upon a determination that the person seeking it "is diligently pursuing i ,

licensed alternatives to the use of Federal storage capacity '

1

[. . . including, inter alia,1 transshipment to another civilian nuclear power reactor owned by such person." Id. at S 10155 (b) (1) (B) (iv) . See also id. at 5 10155 (g) (criteria for determining adequacy of available storage capacity). Congress 1 thus expreasly acknowledged the possible need for electric 1

. 9/ See Commonwealth Edison Company, 18 N.R.C. at 732 (NRC's role does not include deciding whether DOE needs the Fuel Receiving Facility to conclude the West Valley Demonstration Project).

I 13- .

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---._...-_..,_.,__.___,_.__,.____,,.,,_~.,____Ji______,._.__,.___

utilities to transship spent fuel, and Co'ngress required that utilities pursue such an alternative, among others, before becoming eligible to use interim storage capacity to be furnished by COE.1S!

The NRC recently promulgated regulations governing the criteria and procedures for determining the adequacy of available spent nuclear fuel storage capacity. 50 Fed. Reg.

5548 (Feb. 11, 1985), to be codified at 10 C.F.R. Part 53.

These regulations incorporate the requirement that persons seeking federal interim spent fuel storage capacity first pursue o alternatives to the use of such capacity, including the transshipment of waste to the site of another civilian nuclear power reac*or within the same utility system. 50 Fed. Reg. at 5565, to be codified at 10 C.F.R. S 53.13 (c) (4) .

The Commission's comments accompanying these regulations address a proposal that the NRC adopt, in 10 C.F.R.

Part 53, a preference for on-site storage alternatives over transshipments. The Commission replied that it "does not have any authority under (the NWPA] to establish priorities for the pursuit of spent fuel storage alternatives in the context of a Part 53 determination." 50 Fed. Reg. at 5557. Indeed, the _=_

Commission noted that Congress had rejected a provision of an 10 / Of course, the NWPA is not the only statute in which Congress has specifically contemplated shipments of spent fuel

' prior to the operation of a repository. See, e.g., Pub. L. No.96-295, S 301, 94 Stat. 780, 789-90 (1980) (prenotification to Governors of spent fuel shipments).

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earlier bill which would have es'tablished priorities for the pursuit of these alternatives. Id. -

i In view of the need for spent fuel transport as i

! determined by Congress and the general and specific authorizations for such transport granted by the NRC and DOT

subject to regulations whose adequacy the NRC has reaffirmed on

a number of occasions, any additional specific determinations by i

NRC as to the "need" to transport would needlessly and j unlawfully circumscribe the managerial discretion of the operators of licensed nuclear power plants. Determinations by

_l i

l the NRC of the desirability of spent fuel shipments, which are in compliance with existing radiological health and safety and environmental requirements, would place the Commission in the untenable position of evaluating the judgment of alectric utilities in their choice of alternatives and their operating  ;

j decisions consistent with their obligations to ratepayers and stockholders. This the Commission may not do. "[T]he [NRC]

i l .

and its adjudicatory boards do not sit to supervise the general business decisions of the public utility industry nor to second-guess the judgment of those who dor that task is entrusted to others." The Detroit Edison Company (Enrico Fermi J; I Atomic Power Plant, Unit No. 2), 7 N.R.C. 752, 757-58 (1978);

l see Washington Public Power Supply System (WPPSS Nuclear Proiect No. 1) , 19 N.R.C. 1183, 1190-91 (1984) ("It is not our mission

to superintend utility management when it makes business judgments for which it is ultimately responsible.").

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IV. Critique of Specific Provisions of the Wisconsin Petition l

There is quoted below the text of the proposed rule set i

. 1 forth in the Wisconsin Petition, together with the Group's

, critique thereof.

A. Section (a)

Advance approval for transportation of irradiated reactor fuel.

(a) No licensee may transport, or deliver to a carrier for transport, in a single shipment, a quantity of irradiated reactor fuel in excess of 100' grams in net weight of irradiated fuel, exclusive of cladding or other structural or packaging material, which has a total external radiation dose rate in excess of 100 rems per hour at a distance of 3 feet from any accessible surface without intervening shielding, unless that licensee first obtains the approval of the Commission.

Advance approval to transport has already been granted 1

by the NRC, in the form of a general license under 10 C.F.R.

S 71.12, on the basis of a generic determination regarding the safety of spent fuel shipments under prescribed conditions. The existing regulatory framework also requires certain specific approvals prior to shipment (e.g., with respect to specific routes). Additional shipment-specific approvals and determinations would be redundant and unnecessary, as well as ;_

unauthorized in some instances.11/

11/ It is uncertain whether the Wisconsin Petition contemplates advance approval of a shipping campaign or of an individual shipment. If the latter is intended all of the reasons cited for denial of the Wisconsin Petition apply a fortiori.

. ,.e- . . . . . . _ _ . . . _ _ . . . . . . . . . ;... oc B. Secti'on (b) -

i (b) An application for approval of a shipment of i irradiated reactor fuel shall be made in writing at  !

least 120 days prior to the proposed shipment, and shall demonstrate that:

(1) The applicant has fulfilled the requirements of 5 73.37; (2) The proposed shipment is necessary to meet the requirements of the licensee's operating license or required minimum fuel storage capacity; (3) The proposed route complies with all applicable DOT safety and routing regulations; (4) There are no route-specific conditions or hazards which create unique risks of accidents, sabotage or radiological exposures and (5) The applicant has evaluated alternatives to

• the proposed shipment and alternative routes and has demonstrated that the proposed shipment is the alternative for handling the irradiated reactor fuel which provides the least risk of radiological exposure to the public.

(6) The proposed shipping cask is shown to be capable of withstanding all reasonably foreseeable incidents along the proposed route which could interrupt the shipment.

1. Compliance with 10 C.F.R. 5 73.37 (requirements for physical protection of spent fuel in transit) is already required for spent fuel shipments. This requirement, therefore, would be redundant.  ;

2. The need for spent fuel transport has already been determined by Congress. Thus, shipment-specific, determinations of need would be inappropriate. Moreover, the NRC lacks authority under the AEA to make such determinations. Thus, the rule in this regard would be without legal foundation.

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3. Compliance with all applicable DOT safety and routing regulations is already required.

4. The NRC, in the exercise of its physical security responsibility under the existing regulatory framework, already requires shipment-specific approvals of routes for spent fuel transport. Questions relating to the safety of routing spent fuel are within DOT's jurisdiction under the NRC-DOT Memorandum of Understanding. The DOT has examined the need for routing approvals and has promulgated regulations applicable thereto.1 /

5. See comments under 2 and 4, above. Moreover, the NRC's obligation is to assure that there is adequate protection of the public health and safety. It is not required to determine which alternative provides the least risk of radiological exposure to the public.11/

6. Packaging of spent fuel shipments is thoroughly addressed in 10 C.F.R. Part 71.

In summary, there is no basis for imposing the vague requirements of the Wisconsin Petition on NRC licensees.

i i

12/ See, e.g., 43 Fed. Reg. 36,492, 36,494 (1978) (HM-164 2; K3vanced Notice of Proposed Rulemaking) (discussion of shipment-specific licensing); 46 Fed. Reg. 5298, 5310 (1981)

' (HM-164 Final Rule) (" State-designated routes are not considered to be shipment specific routes except under unusual, one-time-only shipment situations").

13/ See, le.., 42 U.S.C. 55 2012(e), 2013(d), 2232(a),

YI56a, 2242W) (1982) ; compare 49 U.S.C. 5 1801 (1982)

(authorizing DOT "to protect the Nation adequately" against hazardous materials transport risks); see City of New York v.

DOT, 715 F.2d at 738.

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1 C. Section (c) .

(c) (1) Upon receipt of the application, the Commission shall provide notice of receipt of the application in the federal register and to each state along the proposed route.

(2) Any interested person, including any state or municipality along the proposed route, may submit written comments and request a hearing concerning the applicant's compliance with subsec. (b) (1) , within 30 days after publication of the application in the federal register.

(3) The Commission shall issue a decision on the application within 60 days after completion of any hearing held under subsec. (b) (2) .

The Commission's rules altsady provide for prenotification to Governors of spent fuel shipments. 10 C.F.R.

55 71.97, 73.37(f)(1984). The proposed provisions for written comments and a possible hearing on spent fuel shipments are redundant, unnecessary, potentially in conflict with the Commission's physical security requirements, and without legal basis, for the reasons previously discussed. This requirement would only contribute to delay and increased cost of spent fuel transport without any contribution to safety. Accordingly, the proposal has no basis in either fact or law.

D. Section (d)

(d) The Commission's action under this section is ~~

an action for which an environmental impact statement may be necessary, in accordance with 10 C.F.R.

5 51.5(b).

Based on the environmental studies cited previously, the NRC and the DOT have determined that the shipment of spent fuel under the current regulatory framework will not have a

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significant impact on the environment and that the current regulations are adequate. Therefore, no action is being taken' by the NRC in connection with approval of such transportation that requires preparation of an environmental impact statement.

The Wisconsin Petition cites no new evidence that contradicts the NRC's previous determinations. Accordingly, this provision of the proposed rule lacks a' factual foundation.

Conclusion For all of the foregoing reasons, the Wisconsin Petition should be denied.

Respectfully submitted,

\ N Leonard M. Trosten LEBOEUF, LAMB, LEIBY & MACRAE 1333 New Hampshire Avenue, N.W.

, Suite 1100 Washington, D.C. 20036 (202) 457-7500 Attorneys for the Electric Utility Companies' Nuclear Transportation Group i Dated: April 5, 1985

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L ZKE1 4 A 3E C F A* C-April 4, 1985 Mr. Samuel J. Chilk Secretary of the Comission U. S. Nuclear Regulatory Comission Washington, DC 20555 Attn: Docketing and Service Branch

Subject:

Request for Coments on State of Wisconsin Filing of Petition for Rulemaking; Propcsed Amenda.ents to 10 CFR Part 71.

The staff of GPU Nuclear Corporation has reviewed the subject petition and is of the opinion that the proposed amendments to 10 CFR Part 71 are unnecessary.

The subject petition alleges three main shortcomings with respect to current regulatory requirements governing irradiated fuel shipment. Our response to each allegation follows:

1. Alleged Shortcominc - There is no Federal Agency considering the need for irradiatec fuel shipments.

Response - The NRC, under authority granted to it by the Atomic Energy Act of 1954 As Amended, controls the issuance of licenses which are necessary to receive, possess, use and transfer of radioactive material. Once a license is obtained, the material is the property of the licensee. As such, the licensee has the legal right to dispose of, sell or transfer the irradiated fuel to whomever deemed appropriate so long as the transfer complies with the conditions of the license. In the past, local governments have imposed regulations requiring the transporter to demonstrate a need for each shipment. All such regulations have been struck mm down by the courts as having been in violation of the interstate fe w comerce clause of the U.S. Constitution (Kassell vs. Consolidated Egy Freightways Corporation of Delaware 450 US 662, 1981). Therefore, pg establishment of such as requirement would be improper.

". [ 2. Alleged Shortcoming - There is no Federal Agency considering the 8 c g; safety or environmental risks associated with the selected routes,

.d or the propriety of exposing the public to these risks.

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Response - Irradiated fuel is classified as a hazardous material. As such, it is controlled under the Hazardous This act identifies the Material Transportation (HMT)(Act.

Department of Transportation DOT) as the Federal Apency controlling the transportation of hazardous materia . To carry out this responsibility, the 00T has established repulations concerning routing, external radiation fields, labe ing, ,

loading, unloading, handling, storage and special transportation r controls. In addition, DOT also controls carrier equipment and l the qualification of carrier personnel. The NRC recognized the '

authority of the 00T in these matters by Memorandum of Understanding dated July 2, 1979. The U.S. Supreme Court has recently upheld regulations promulgated by the DOT concerning i the routing of radioactive material.  !

The DOT and the NRC have previously evaluated the transportation of spent nuclear fuel and determined that the use of the Federal i

Interstate Highway System is the preferred routing for these shipments and provides the maximum transportation safety and minimizes the radiological risk. Current route planning by the shippers utilizes the interstate system as its first routing choice. ,

Following a request for routing approval from the shipper, the i NRC surveys the proposed route and evaluates the acceptability  !

of the route from a safeguards persepective. The shipper must provide information regarding its implementation of the l safeguards requirements of 10 CFR 73.37 are fully recognized and '

executed for full compliance. h The Hazardous Material Transportation Act, DOT Docket 2-164 DOT regulations, and NRC regulations constitute a comprehensive '

regulatory scheme for transportation of spent nuclear fuel that insures the protection of the public health and safety.

Provisions have been made to allow the involvement of state and local jurisdictions on matters of safety based on their specific knowledge of the local area conditions which may create unique risks of accidents. However, the unilateral imposition of divergent and inconsistent rules and regulations from jurisdiction to jurisdiction of necessity would not complement safety but would rather detract from it.

3. A11ened Shortcoming - There is no Federal Agency which currently requ'res acequate safeguards to protect against emergencies related to shipments of irradiated fuel. ,

Response - Response to transportation amerpencies is necessarily  :

site-specific. The position of the Federa Government on this ,

matter is outlined in 44 FR 75568; "Although the Federal r Government can regulate in order to avert situations where ,

emergency response is necessary, and can aid in local and state ,

planning and preparation, when an accident does occur the ,

response is, of necessity, a local responsibility." The DOT has the responsibility to reduce the probability of transportation emergencies. This is done by requiring the shipments to travel over routes which have been demonstrated to offer the highest level of safety, by regulating carrier equipment and by ensuring the adequacy of the training of drivers. Also, the Department of Energy has developed regional response teams to assist local authorities in the event of a " nuclear" emergency. As a result of extensive reviews performed, the DOT has concluded that "...

spent nuclear fuel poses a much lower risk of transportation accident than do any number of comon chemicals, the containment of which could also be expected to exceed the capacity of local groups to respond" (49 FR 46664).

Spent fuel shipping casks have been designed and tested to standards that prov'ide assurance that the casks would be capable of withstanding all reasonably foreseeable incidents during transit. The cask vendor license application must treat these subjects in detail prior to the issuance of a certificate of compliance by the NRC for the shipping package. The requirements to demonstrate such capability is done and will .~

continue to be accomplished without further regulation.

As currently structured the proposed rulemaking would require the imposition of a cumbersome procedure for each shipment. Since most shipping campaigns consist of many shipments, the proposed rulemaking would constitute an overly complicated and unduly burdensome restraint of spent fuel transport with no demonstable increase in safety or reduction of radiological risk. Each campaign should be treated as a whole since all actions are identical for each shipment within the campaign.

l However, since the proposed rulemaking covers areas of regulation currently subject to substantial and sufficient protective regulation, no new program of regulation is necessary in GPUN's view, especially as drawn in the Wisconsin proposed amendments.

Based on the above, it is our opinion that the petition for rulemaking should not be honored. The petition has failed to demonstrate a need for rulemaking or that such rulemaking would enhance the health and safety of the public. Nor has the petition shown cause for the NRC to preempt the authority of the DOT in these matters.

Sincerely, W 3 m.

J. R. Thorpe b Director Licensing & Regulatory Affairs RKL: dis:1639f

sxx,su.i su cw n ,

. PETITION RULEN D-M (61FMBGG) f ORI

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r BadgerSofe

( EA [., Energy Alliance P.O. Box 68 Durond, Wisconsin 54736

\v [" Dorking for o Better Energy Future V L- . w .-: t ',W 00CnC .G .s 5Esvitf.

3 " ""

4/3/85 TO: JOHN PHILIPS, NRC FR: WILL FANTLE, for BSEA RE: DOCKET NO. PRM-71-10 The Badger Safe Energy Alliance (BSEA) strongly supports the petition .by the State of Wisconsin to the Nuclear Regulatory Commission seeking a public rulemaking proceeding for the public evaluation and approval of proposed shipments of irradiated spent nuclear fuel.

The Badger Safe Energy Alliance is composed of citizens throughout western Wisconsin concerned with the environmental problems associated with centralized energy production and distri-bution, and with the promotion of energy conservation and renew-able energy sources. Many members of BSEA live along the rail route being used by Northern States Power Co. for the shipment of irradiated spent nuclear fuel from its Monticello reactor to a temporary storage pool at Morris, II. BSEA was formed in 1978.

BSEA members are very upset with the clear lack of regulation that currently exists at the federal level, principally the NRC, i with regard to the shipment of irradiated spent nuclear fuel.

Specifically, BSEA members are concerned withs

- the lack of a certificate of need proceeding which would verify the " urgent public necessity and need" to ship spent nuc-lear fuel prior to the shipment of irradiated spent nuclear fuel.

the lack of a careful examination of alternatives to pro-posed shipments of irradiated spent nuclear fuel, with the mandate that prudent and cost effective onsite storage alternatives be undertaken prior to the granting of a certificate of public neces-sity and need.

- the lack of actual physical crash and accident testing of the cask model used for the shipment of irradiated spent nuclear fuel, verifying that the cask is capable of withstanding all reasonable accident scenarios, including fire, water uubmersion, cruching, drops and falls.

- the lack of demonstrated emergency response capability to a radiation accident by emergency personel, first responders, and bnowledged by conf...

-syd/p; i y T.

hospitals along irradiated spen't nuclear fuel shipping routes.

- the lack of a clear evaluation of alternative routes for irradiated spent nuclear fuel shipments, listing the unique hasards and risks of each route examined.

Therefore, the Badger Safe Energy Alliance requests that the NRC hold a public rulemaking proceeding that would examine the issues raised by the State of Wisconsin and other petitioners, and that such a hearing be held in Wisconsin or near the route pre-sently being used by the Northern States Power Co. for the ship-ment of irradiated spent nuclear fuel.

j for ESEA,

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DOCKET NUMBER 2 0h (Od $[ph g ) b N.6218 Jason $t._

Onalaska. WI 1 April 1985 #65#(-g gj g Secretary of the Consnission Mgi..t.<..

'g,'Q.{E R VICf.

U.S. Nuclear Regulatory Consnission Washington, D.C. 20555

Dear Sir:

I am writing to register my support for the State of Wisconsin's rulemaking petition. Docket No. PRM 71-10.

I strongly support this petition and believe the public interest will be served best by allowing such participation. My support of this petition is also based on my belief that no adverse or ill effects will be realized by power companies or shippers of irradiated reactor fuel.

Thank you.

l Sinc. ! rely, pys.- k Varren A. Viehl Aclamassed by conf. ..

a ,i,rz 0511 add:

S. i Hig3.nton, Janes Henry,4000154BB 1130 5 Frank Young, AR-5037

STATE OF DOCKET NUM8M%.

PETITION R LE EN RADIOACTIVE WASTEREVIEWBOARD s21 renner ewien,

... 110E Marn Street April 3, 1985 0) h'r' ~U h11.'jl Ma$$on wt $3702 (608)266 0697 (606)267 7615 tt ik t ,s,. r Hr. Samuel J. Chilk, Secretary 00C C ...:.,$tRvici Nuclear Regulatory Commission BAANCM Washington, D. C. 20555 Attn: Docketing and Service Branch RE:

Docket No. PRS 71-10

Dear Mr. Chilk:

Board's strong support for the petition filed with the Commission by the State of Wisconsin a for oactive Waste rulem Review

, dated December 13, 1984, The Radioactive Waste Review Board is charged with the re wide nuclearfor advocate therepositories.

waste people of Wisconsin in the Federal governmsponsib ent's search for nation-In carrying out chese res fuel will be crossing Wisconsin to an eventual re is one of the host states.

i y, whether or not Wisconsin shares the Governor's concern that nsin, there the Reviewis no Fe Board for the shipments, the safety or environmental gency risks considering the need agency currently requiring adequate s.safeguards And, there is no to p against emergencies.

The Federal government has the responsibility to protect th the public, as well as the environment, from haza ed health and safety of of high-level radioactive waste and spent fuel. r s associated with the shipment to act, it will own best interests.

be inviting states and local unit If the Federal government fails s of government to act in their

$$ We urge the Nuclear Regulatory Commission to act fa and issue a proposed rule to amend 10 CFR Part 71 in thvorably on Wis tio p proposed.

go E e manner that Wisconsin has Thank you for your f avorable attention to the petition g4 Sincerely, .

d Qg J h[ Wisconsin RadiuactivState Senator Joseph Strohl, Chairman ,

e Waste Review Board JS mb Acknmedged byW. #

DOCKET NUMBER

@ PETITION (SoF2. 48GG)

R STATE OF WYOMING so namenue orrect or TNe covaRNOR CNEYaNNE s2oO2 e-oovinson April 3, 1985 Af *O f, 5:rd' .[*hj Secretary of the n .-

U.S. Commission Washington, NuclearD.C.

Regulatory Commission 20555 '

Attention:

Docketing and Service Branch RE:

Docket No. PRM-71-10, State Filing 4,of Petition (Feb.

1985). for Rulemakingof .

Wisconsin; 50 FR 4866 Dear Sir 1 vould ment concerning like to submit this submitted by the Statethe above-referenced petitionletter as acom- written as a corridor of Wisconsin.

(opent fuel), state In general Wyoming,for rulem supports Wisconsin'sfor shipments of irradiated react rule.

there are Wyoming agrees with Wisconsin' petition and proposedor fuct significant s allegations ing shipment of spent gaps fuel. in the that Specifically, regulatory program regard-

- there spent should be fuel shipments prioratofederal the policy designedzeto minimi tercial nuclear waste repository; operation of a com-there should be ating the need for spenta federal regulatory system for eval operation of a repository 8fuel shipments prior to the u-additional transport sponst tain transportationplanning proceduresrequirements should be or eme which were not routes entail uniqueimposed if ter-conditions used for cask licensing prevaluated accident through the ocedures; and federal support, government, through DOE and NRC, should response with effortfunds

s. and training, state emerg ency This is especially important corridor nor and storage expertise nestes which have neither wa facilities for from which to deriveste generatore planning and implementation.for emergency revenues response prepara

,$0",n 3 5 Frank Young,

(

Secretary of the NRC Commission April 3. 1985 Page 2 i

l Wyoming believes that Wisconsin's petition raises significant issues with the current regulation of commercial spent fuel shipments. We would respectfully request that any action on the petition by NRC consider the points discussed above.

t Thank you for your attention and consideration of this comment.

incerf ly, fla a 2 1 BA> _%

l EHinip l cc: Honorable Anthony S. Earl

• l Julius Haes i

L r

e 9

-E- _ _ _ _ - - - _ _ _ _ _ _ _ _ _ _ _ . _ _ . . _ _ _ _ _ . _ _ _ _ _ . _ _ _ ___

DOCKET PETITION RULE _NUMBER PRM 7/- _

\ '/O (fB FA,48GG)

SIERRA Nonh Star Chapter CLUB -

• {f{CD 5 April 1985 g gg FFICE Of StCRtIAP)

U.S. Nuclear Regulatory Commission u0CMETmG & SENict*

Secretary of the Commission BRANCH Washington, D.C. 20555 ,

Attention: Docketing and Service Branch ,

Re: *'*"'

l_0 CFR Part 71-Docket No. PRM-71-10

Dear Sir:

I am writing this letter on behalf of the North Star Chapter of the Sierra Club, which has over 6,200 members within the state of Minnesota. The below comments refer to the State of Wisconsin's filing of petition for rule making as it pertains to 10 CFR Part 71.

The State of Minnesota finds itself in the same position as the State of Wisconsin in that shipments of spent nuclear fuel are currently proceeding through the r state from a nuclear reactor facility in Monticello, Minne- .

sota to a temporary storage facility in Morris, Illinois. {'

The State of Minnesota has not taken any action, although urged to do so by various environmental groups, to ensure that such shipments are transported in the safest possible manner. The State has repeatedly believed that federal regulations and acts of Congress preempt the State from taking any action. The North Star Chapter does not nec-essarily agree with the logic of the State's position on the issue of preemption, however, rue request of the State of Wisconsin to amend 10 CFR Part "el will help relieve some safety concerns as it relates to irradiated reactor fuel shipments.

The safety of the public and the environmental are of the utmost concern. We would agree with and support the proposed amendments to 10 CFR Part 71 as requested by the State of Wisconsin with some minor additions. These are:

Section (b) (5) . Language should be added to the last sentence of this section u follows: . . . the irradiated reactor fuel.which provides the least risk of radiological exposure to the public and . .

environment." .. .

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U.S. Nuclear Regulatory Commission Page 2 April 5, 1985 Section (c) (2 ) . Language should be added to this section as follows: "The commission will hold hearing (s) within 60 days within the State of the requested hearing."

The NRC has a responsibility to protect the public and enviroment against risk of radiation exposure and because l of this responsibility such proposed amendments should be adopted.

Very truly yours, b .

, John . GrpIk>ek.[ *

! Chap r Chair

. \ Conse vation Chair \.

\ North tarChaptgrSierjaClub JEG:gw cc: Michael Shoop

\ N John E. Grzysak N 4153 Harriet Aventa South Nuclear Energy Task Force Chair Minneapolis, MN a5409 1

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6 gGg Carolina Ponf & Light,Q,0 pe April'5, 1985

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Dr.';KEi M a SEb FILE: NF-511.04 01 B SF.AhCH SERIAL: NF-85-162 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch COMENTS IN RESPONSE TO NOTICE OF STATE OF WISCONSIN PETITION -

FOR RULEMAKING ON SPENT FUEL TRANSPORTATION

Dear Mr. Secretary:

We have reviewed the subject notice and appreciate this opportunity to submit our comments. Carolina Power & Light Company is a member of the Electric Utility Nuclear Transportation Group, and we endorse the Group's comments which are being filed separately. In addition, we are enclosing comments of particular concern to Carolina Power & Light Company.

Yours very truly, eve =

S immerman l Manager - Nuclear Licensing RKK/ppl Enclosure 7402SAU i

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1. For reasons stated in the Nuclear Transportation Group's comments, the l proposed amendments to 10CFR71 are inappropriate and unnecessary. I

2. We find some of the proposed regulations so vague that one could not demonstrate compliance. It is not clear what is meant by a " unique risk" in Item (b) (4), "least risks" in Item (b) (5), or " withstanding," "all reasonably foreseeable incidents" and " interrupt the shipment" in j Item (b) (6). We also believe that Item (b) (6) is inconsistent with the existing cask licensing criteria.

3. There are probably thousands of shipments of flammable fuels (e.g.,

gasoline), liquified fuels (e.g., propane and liquified natural gas), and chemicals (e.g., chlorine) occurring throughout the U.S. on a daily basis. Any transportation accident with these hazardous materials could potentially cause significant harm to the public, yet there is no requirement (nor any need for requirements) for any " Federal Agency considering the need for shipment, the safety or environmental risks associated with selected routes, or the propriety of exposing the public to these risks." Accordingly, spent fuel which has relatively benign credible accident consequences to the public relative to such other materials should not be subjected to the proposed regulations. Congr ess ,

through its laws, has already decided that nuclear energy is an acceptable societal risk.

4 The State of Wisconsin's petition indicates that the Department of Energy, the Department of Transportation, and the Nuclear Regulatory Commission could potentially influence spent fuel transportation decision-making

• through responsibilities under the Nuclear Waste Policy Act, the Hazardous .

Transportation Act, and Title 10 of the Code of Federal Regulations, res pectively. While this is true, we know of no instances where failure to meet these responsibilities resulted in any significant harm to the public or environment. The fact that the Department of Energy's responsibility for shipment of spent fuel does not begin until it takes title has nothing to do with whether shipments before it take title are necessary or unnecessary. Indeed, prior to the Department of Energy taking title, the Nuclear Waste Policy Act states that generators and owners of spent fuel have the primary responsibility to provide for the spent fuel.

With regard to the Department of Transportation, we fail to understand why illegal actions by states in areas clearly reserved to the Federal Government imply any Department of Transportation failure to meet its .

requirements. In any case, this petition seems an inappropriate place to challenge the Department of Transportation.

With regard to the Nuclear Regulatory Commission, we fail to understand why the State of Wisconsin points out that the Nuclear Regulatory Commission does not regulate the carrier or consider its safety record.

It seems obvious to us that the Department of Transportation provides such regulation.

j T402SAU l

1 STATE OF NEBRASKA ROBERT EERREY e GOVERNOR e EANDRA HAHN 0- R CTON

_  % 3 April 5, 1985 t di : : y ; .

00~MEip,n,;$pjy, oRANCH Secretary of the Consnission U.S. Nuclear Regulatory Conunission Em NtJMBER' 1 Washington, DC 20555 PETITION RULE pgg /((-(( l' Attention: Docketing and Services Branch (9 PMBG6)

Dear Sir or Madam:

These comunents are submitted in response to Docket No. PRM-71-10, the petition for rulemaking filed by the State of Wisconsin. The Federal Betister gave notice of the consnent period February 4,1985 at page 4866.

The State of Wisconsin's petition has raised a number of issues, the most basic of which concems the accountability of federal agencies to the public for decisions that affect the safety of the public. In my judgment, unless this question is squarely addressed by the NRC, it will continue to arise in other situations, probably with increasing frequency as more utilities consider transportation of spent fuel as a way to manage their storage problems.

The recent experience in Bebraska with a series of shipments from the Cooper Nuclear Station in Brownville, Nebrsska to the General Electric storage facility at Morris Illinois may provide some useful insight to your deliberations. Before the first train of spent fuel was dispatched in August, 1984, there were two public discussions of the need for the shipments. The first was a public hearing of the comunittee on Agriculture and Environment of the State Legislature in August, 1982. The second was a meeting of the Lincoln City Council in February, 1983. Both these meetings were very well attended and at each, dozens of Nebraskans spoke their minds.

Citizens here turned to consideration of law or ordinance at the state and local level exactly because there was an absence of formal process for public and state review of federal agency decisions. And clearly, the forums used were no substitute for the methodical, orderly examination of information and choices the IRC could provide in a proceeding of the kind Wisconsin proposes.

Yet even these meetings had some constructive results.

t 5 PP -

O $N ne w try e m e............ :. =y NEBRASKA ENERGY OFFICE, BOX 95085, LINCOLN, NEBRASKA 68509-5085 PHONE (402) 4712867 AN EQUAL OPPOETUNITY/AHUtMATTVE ACTION EMPLDYER M/F/H

. . _ ~ _ _ . _ _ -_ _ - -

Secretary of the Consnission Page Two April 5, 1985 f

The utility involved--Nebraska Public Power District--was able to demonstrate that it had reviewed alternative means of addressing its storage problems. (It chose transportation to Morris largely because of uncertainty about the timing of ERC licensing of dry storage on site.)

At the same time, public concern for safety has spurred state agencies, the utility, and the carrier to take safety precautions beyond the minimum required by federal regulation. For example, the Nebraska State Civil Defense Agency held workshops for first responders--local fire and public officials--

along the route. It also published a plan for Emermency Response for Bon-Power Reactor Incidents, including transportation incidents, with one volume addressed to the state level and a second to local governments. The utility decided to provide a special vehicle which will serve as an escort for each shipment, providing special radiation monitoring and cosaunications equipment.

The railroad agreed to provide its employees with film badges. An important saftey measure taken is the use of special train service. .-'

This short history suggests at least three reasons for a positive response to the basic request made by Wisconsin for NRC determination and state and public review of the need to make shipments, route selection and safety measures:

- open discussion of the issues may result in a greater range of choices

both formal and informal, as happened in Nebraska.

- Fears that public participation would somehow get out of hand and undermine rational, technically-sound decisionmaking are probably not realistic. Reasonable resolution leaves everyone better off--utilities,

, carriers, state officials and citizen-ratepayer-taxpayers.

- If the NRC itself provides a public forum, resort to state and local government as a source of information and discussion is less likely. ,

Legally futile attempts to ban spent fuel transportation by local ordinance can only generate local resentment and, in the long run, undermine federal authority to regulate spent fuel transportation.

Therefore, I urge you to recognize the value of a knowledgeable ERC review of the need for and safety of a particular set of shipments and the advantages of flexibility that open public discussion such a review would introduce.

= - _ . - _-_ = x - . . - - . . . - . _ _ _ _ _ - - - _ - _ - - . _ -

Secretary of the Commission Page Three

> ' April 5, 1985 I believe the Comunission will recognize that the days when experts can announce to the public that there is "no problem" in handling spent nuclear fuel are gone. Citizens will satisfy themselves on these matters as is their right in a democracy. I urge you to provide informative, conettvetive cht.mels for that resolution.

Yours truly, d~

E indre Hahn

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DOCKET NUMBER PETITION RULE PRM 7/-/d GENERAL ASSEMBLY G58FA4BM)

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7mePneSrNTa MICH AEL J. M ADIGAN N bD . O...C.O - ...

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31S CAPfTOL ALL **OUSE CO--sTTE E S SPRING.IE LD. GLLINOas 62708 ( l - -

U.S. Nuclear Regulatory Comission 1717 "H" Street N.W.

Washington, D.C. 20555

Dear Comistioners:

I am writing in iny capacity as Speaker of the Illinois House of Representatives to urge your adoption of the rule regulating the Transportation of Irradiated Reactor Fuel that has been proposed by the State of Wisconsin. Your prompt action on this petition is vital to assuring that the health and safety of the citizens of Illinois will be protected from the hazards posed by the increasing shipments of spent fuel through our state.

Illinois has quickly become the crossroads for the drastically increasing frequency of fuel shipments taking place in this country. Hundreds of tons of these highly radioactive wastes are being shipped to the only "away from reactor storage facility in the U.S. at Morris, Illinois.

Over one hundred truck and rail shipments of spent fuel rods have started to be transported to Illinois from New York; California, Nebraska and Minnesota.

Cespite the extreme hazard of these radioactive materials the safety of tl.cse shipments has not been adequately assured. The need for these shipmer,ts and the safety or environmental risks associated with the specific routes of the individual shipments has not been addressed in the current licensing process. The existing regulations do not require 1 safeguards to protect the public in case of an emergency or accident in route.

The Wisconsin proposal before the Comission represents an important advance in assuring the safety of individual shipments. The petition proposes to establish a licensing and safety review procest very similar to state permitting requirements that have been proposed by legislation in Illinois. Because of federal preemption under the Hazardzs Materials Transportation Act, however, the states have very limited authority to regulate the shipments of such wastes. Strengthening the rec uirements is l the most appropriate method to assure the safety of these ratioactive shipments.  !

Acknowledged by c8fd.... b l .- _ _

T

U.S. Nuclear Regulatory Comission Page 2 April 5,1985 The prompt adoption of this proposal will t,ssure that adequate safeguards are taken. It wi)1 also assure that the state and the public at large are given meaningful opportunity for input on how these shipments proceed. The citizens of Illinois and other affected states that are subject to the hazards of these highly radioactive shipments have the right to be assured that all possible steps are being taken to assure that their safety is being protected. I urge your prompt affimative action on this petition.

With kindest personal regards, I remain Sincerely yours.

'E0)q.D r__

MICHAEL J. MAD AN Speaker of the House MJM:js 4 .

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DOCKET NUMBER M- '

PETITION RULE PRM % /d

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. John Philips, Chief Rules and Procedures Branch Division of Rules and Records Office of Administration U.S. Nuclear Regulatory Commission Washington, D.C. 20555 RE: DOCKET NO. PRM-71-10

Dear Mr. Philips:

I am very much in favor of Governor Earl's petitioning the Nuclear Regulatory Commission to establish a rule-making proceeding for the evaluation and approval of spent fuel shipments of the type being made by Northern States Power Company through the State of Wisconsin.

What is wrong with addressing the problems of health, cask safety, need or the protection of the environment?

What is wrong with questioning if the route is protected from terrorists?

Until these questions are answered satisfactorily, I think it is disgraceful these shipments are allowed to continue. .

Sincerely, l.l.1 Q $ - bMtlVU Margel, R. Joh on Route 2, Box 300 g River Falls, Wi. 54022 I

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5 DOCKET NUMBER PETITION RULE PRM 7h/O SnTE or NEw Mexico

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pg %PC Tosty Asa)4 April 8,1985 RN 1029 Govt #* eon 'E5 AFF 11 P2:49 Mr. Samuel Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing and Service Branch

REFERENCE:

Docket Number PRM-71-10 Petition by the State of Wisconsin

Dear Mr. Chilk:

The State of New Mexico supports the State of Wisconsin's contention that the current rules under CFR Part 71 citeri in the petition should be thoroughly reviewed by the Commission. Further, the Commission should provide ample review and comment opportunity for both the state governments and the public impacted by the campaign to ship over 1,000 spent fuel assemblies over the past five years.

Specifically, we believe that prior to any major campaign to ship radioactive wastes between two or more points, the following actions should occur:

(1) A thorough public review of the proposed action; (2) An opportunity for affected states to participate in decisions for routing of " highway route controlled quantity shipments" in accordance with DOT Regulations 49CFR 173 through 49CFR178; (3) An understanding reaci.ed with the affected states of the roles of all parties in inspection of shipments, emergency response, prior notification, and liability.

Thank you for the opportunity ta comment.

TONEY ANAYA Governor cc: The Honorable Anthony S. Earl, Governor State of Wisconsin Ms. Denise D. Fort, EID Director

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t DOCKET NUMBER c PETITION R PRM Tl-/d GENERAL $ ELECTRIC @ULEMedf NUCLEAR FUEL AND $PECIAL PROJECTS DMslON e, ,..r-GENERAL ELECTRIC COMPANY

• MORRIS OPERATION

• 7555 EAsi COLLINS ROAD

• MORRi$ *1!flNQTs'6o450 * (8 April 9, 1985 85 err P A*0:15 Secretary of The Commission

• US Nuclear Regulatory Comb . .on - ' W f. 5M' Washington, DC 20555 Attention: Docketing and Service Branch Gentlemen:

SUBJECT:

COMMENT ON " STATE OF WISCONSIN, FILING OF PETITION FOR RULEMAKING". (DOCKET NO. PRM-71-10, 50FR 4866-7)

General Electric Company herein provides comments in response to the referenced notice of reqLiest to the NRC for proposed rulemaking.

The petition for rulemaking dated December 13, 1984 filed by the State of ..

Wisconsin is apparently based on the premise that the transport of nuclear -

spent fuel is not adequately regulated.

Spent fuel transport is one of, if not the most, heavily regulated transportation activities associated with a transportable comodity. The basic regulatory system for transport of spent fuel has been demonstrated by experience nationally and internationally to be sufficiently encompassing to ensure protection of public health and safety.

In addition, the uniform federal regulation - which now exists - provides for the efficient and direct movement of hazardous materials in comerce, thereby minimizing the tortuous routings and delays which would undoubtedly result as shippers and carriers tried to conform with or avoid a plethora of conflicting local rules.

The US regulatory system already includes provision for:

, USNRC approval of routes according to established criteria.

- USDOT/USNRC regulation of shipping container typeot' ensure public safety.

USNRC regulation of the use of shipping containers and the establishment of rules for radiological protection of the public.

USDOT regulation of hazardous material transport.

- State enforcement of USDOT rules (through incorporation of USDOT rules in  ;

the state jurisdiction).

USNRC regulation of safeguard aspects of spent fuel transportation.

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J Secretary of The Comission April 9,1985 l Page 2 l In addition, the USNRC has published environmental impact statements on the 4

transportation of radioactive materials and found the risks acceptable.

The Wisconsin petition does not contain any new provision that would improve the public health and safety.

Specific coments paragraph by paragraph on IV. Wisconsin Proposed Amendments to 10CFR.71 as set forth on Page 4867 of the Federal Register Vol. 50, No. 23, Monday, February 4,1985 are:

(a) Fulfillment of the Commission's " pervasive" regulatory requirements already constitutes a blanket approval to transport large quantities of radioactive materials. To require an additional Comission approval is

redundant.

i (b)(1) The shipper / carrier by existing regulation must conform to Paragraph 73.37 of 10CFR Part 71 and all other requirements of the regulation or suffer (possibly severe) penalties. To reaffirm compliance to this requirement is redundant.

' (b)(2) Necessity as defined by the Wisconsin petition is not a legitimate factor. A decision to transfer spent fuel is a business decision based on business needs. If existing regulations are properly complied with, the public health and safety is well protected.

(b)(3) Existing DOT safety and routing regulations apply to transport of all hazardous materials, of which radioactive materials are only one category.

l The proposal is redundant.

(b)(4) There are frequently local or temporary conditions which affect 4

transportation routes. These are called out in various local and state advisories, but generally affect all transportation irdiscriminately not just radioactive shipments, e.g.; detours, weight restrictions, road damage (flood orwashout),etc. It is meaningless to " demonstrate" 120 days in advance that 4 "...there are not route specific hazards which create unique risks..." when i such hazards usually occur on short notice and are well handled by responsible l state or local agencies. Longer term detriments to the transportation of i spent nuclear fuel or regulated large radioactive material shipments are

! recognized in the existing route approval process.

, (b)(5) Regulations already require consideration of routes. Selection of a route based _on1y on minimization of radiological exposure to the public is inadequate. Of far greater concern is the risk of vehicular accident -- hence distances travelled, quality of the highway or railway route must be considered. Traffic density must receive consideration as well, i

(b)(6) Certification of the cask as provided by the USDOT/USNRC regulatory process is for the specific purpose of showing that the cask is "... capable of

withstanding all reasonably foreseeable incidents along the proposed routes which could interrupt the shipment.".

1

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4 Secretary of The Comission April 9, 1985 Page 3 (c)(1) Currently the USNRC publishes a listing of approved routes that cover most shipments of spent fuel. Cognizant state departments should already be aware of such approved routes. Truck shipment " preferred routes" may presently be specified by the states. (c)(1) is redundant.

(c)(2) Safeguarded information itself must be safeguarded and kept from public disclosure. This section is inconsistent with existing safeguard requirements, which are currently being considered for revision.

(c)(3) The process requested will require a minimum of 150 and a maximum of 210 days elapsed time from application to approval and will not add to or improve the safety and health of the general public. It would require the USNRC to implement on an ad hoc basis what has already been taken care of by the well tested regulatory process.

In the past, single shipments have traversed 13 states and countless smaller jurisdictions. The hearing notification and EIS process described in (c)(1),

(c)(2), (c)(3) and (d) would cause an enormous use of USNRC and utility resources for little if any positive public gain.

Sincerel ,

4h E. E. Voiland Manager, Morris Operation General Electric Company EEY:tp D

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'85 5?? 15 Pl2:24 BECo 85-069 GDE . . L:LM SEi. .rt;

(;rr ;E Secretary of the Commission '*

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch Response to Request for Written Comments for the State of Wisconsin Petition for Rulemaking

Dear Sir:

By Federal Register notice (50 Fed. Reg. 4866, February 4, 1985) the Commission has requested written comments for a petition for rulemaking filed by the State of Wisconsin (Docket No. PRM-71-10). Boston Edison Company is a power reactor licensee and although we have no immediate plans to ship spent reactor fuel this petition could affect our future operations. We have, therefore, reviewed the petition for rulemaking and hereby submit limited comments reflecting our concerns.

The petitioner has requested that a regulatory process be established to provide an opportunity for public participation in the evaluation and approval of proposed shipments of spent reactor fuel. He feel that the nature of the activity which is proposed to be regulated does not warrant the imposition of new regulations as described in the petition. Although we recognize that there are potential risks associated with the shipment of spent reactor fuel we also feel that an adequate regulatory framework currently exists with the Nuclear Regulatory Commission, Department of Transportation, and Department of Energy. The addition of new regulatory requirements upon a licensee, the potential delays associated with involvement in public hearings, and the costs incurred to prepare a full environmental impact statement are not justified given the good overall track record of radwaste shipments and especially spent reactor fuel shipmer.

Moreover the proposed rule is silent as to whether its requirements would be repeatedly imposed for a specific shipping route even though approval hao been granted for a prior shipment. The rule as written could be construed so as to benefit individuals interested in making frivolous repeated requests for hearings for already established shipping routes.

Finally, since we believe the petitioner does not have an adequate basis for the proposed rule we also are opposed to petitioner's assertion that the NRC should refrain from approving routes for any shipments of irradiated reactor fuel until the required rule has been promulgated. The additional restriction wrongfully assumes that any spent fuel shipments are inherently unsafe.

n =sy a s -1 o ! -' O _.

l l- t (; l Acknowledged by sens. ...... >M

....;_....F

I BOSTON EDISON COMPANY Secretary of the Commission April 10, 1985 Page 2 In summary we feel the petition for rulemaking is not needed and that current regulatory requirements are adequate in this area. Boston Edison Company appreciates the opportunity to comment on this issue. He hope our views on "

this matter will be considered by the Commission in their disposition of this issue.

Very truly yours, i

TFF/kmc l 1

- - . . . - . . - . . - ~ - . - - - ~

DOCKET NUMBER' PE ITION RULE PRM %lO 30 STATE OF CALIFORNIA-SUSINESS. TRANSPORTATION AND HOUSING AGENCY GEORGE DEUEMEJ1AN, Gememor DEPARTMENT OF CALIFORNIA HIGHWAY PATROL Pf). DOX 898 SACRAMEMO. CAUPOGNIA 99004 7'"P f'((

(915) 445-6211 P 'C April 11, 1985

'85 Arn i6 All :30 File No.: 60.4062.A6078 0'Ckb.o s 'SE ib; BEANCH Secretary of the Commission U.S. Nuclear Regulatory Commissicn Washington, DC 20555 Attention Docketing and Service Branch

Subject:

State of Wisconsin Petition for Rulemaking Docket No. PRM-71-10 It is the opinion of this Department that adoption of Docket No. PRM-71-10 will jeopardize the safety of spent radioactive fuel shipments. Also, the proposals contained in this docket .

could ultimately prevent the transportation of spent radioactive fuel due to administrative delays or legal actions associated with the public hearing process.

We believe the highly controversial issue of whether this material should be transported is not an appropriate subject for resolution through the rulemaking process. Any action that could have such an impact on the entire nuclear energy industry should be resolved only by Federal legislative action.

Revealing the actual shipment dates and times, which will ultimately occur at public hearings, is in direct conflict with Title 10, Code of Federal Regulations, Part 73.21. The security of these shipments must not be compromised and this is California's primary concern with this notice of proposed rulemaking.

Very t uly yours,

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. . M l . . ORT, C ief Enforc ment Se vices Division oc vn -,;a y ;j i n if;Q ] p, -

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DOCKET NUM Cooth Gardner 3 PETITION RULE PRWf

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wAms 4 are STATE OF WASHNGTON . . -. .

NUCLEAR WASTE BOARD -

Aw Stop ev n e owpa. washagron yesm . pas) asn,s,o April 10, 1985 05 O PI:22 L.

The Honorable Nunzio Palladino Chairman Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Palladino:

REF: Docket No. PRM-71-10 This is written to support the Petition for Rulemaking submitted by the State of Wisconsin on December 13, 1984, and referenced above.

As one of three states DOE has selected for investigation for a high-level waste repository, we are acutely aware of the volumes and frequency of spent fuel shipments which would occur if the repository is developed in Washington. Both road and rail modes of shipment are subject to accidents caused by weather, mechani-cal failure, deteriorated roads and railbeds, and human error.

We have histories of accidents in both modes and we understand better than any federal agency their probable causes and probable frequency of occurrence under specific conditions.

Yet federal agencies virtually ignore this capability in concep-tual plannicg for a repository. The Draft Environmental Assess-ment of the Hanford sita by the U.S. Department of Energy con-sidered only a radius of a few miles around the site, and even so it used only nonspecific national risk factors. USDOE policy appears to be based on truck route selection by commercial oper-ators, who naturally will have incentives to cut time and costs.

The rail system in the Hanford region needs maintenance, yet there is no effective means of requiring upgrading of the lines before spent fuel shipments would begin. The U.S. Department of Transportation has taken a strong position against states and local governments who attempt to participate in and influence routes and standards for waste shipments, with the promise of lawsuits.

khplQ &$

APR 161985 _ .

Mnow} edged by card...or...L -

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The Honorablo Nunzio Policdino April 10, 1985 Page 2 Transportation safety is among the concerns uppermost in the l ainds of our citizens, as we have established in extensive public l meetings and surveys. Conaunities with special, specific hazards in their jurisdictions are going on record as opposing repository development in the state, largely on the basis that the federal agencies are indifferent and unresponsive to their needs. Assur-ances by the U.S. Department of Energy that risks of accidents are low, risks of loss of container integrity are minute and risks of public exposure are negligible, are not taken seriously by people who have seen hazardous materials dispersed into the community as the result of transportation accidents.

Since the Nuclear Regulatory Commission bears a great deal of responsibility for ensuring and verifying safety in all aspects of a repository, certainly including route-specific transporta-tion, it would be both prudent and constructive to establish

, acceptable standards and procedures today through formal rule-making. -

1 urge you to support and implement the proposal made by the State of Wisconsin, thereby conveying an important message to other federal agencies which will turn out to be in their best interests as well as those of the general public.

Since ly, m

M Warren A. Bishop Chair -

Nuclear Waste Board cc: Governor Booth Gardner Governor Anthony S. Earl l

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PETITION RULE PRM '7/-/d (58PR48%)

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60 CME'.uaLChv'Cf SRANCH April 15, 1985 Secretary of the Commission ATIN: Docketing and Service Branch U. S. Nuclear Regulatory Commission Washington, DC 20555 Centlemen:

The " State of Wisconsin: Filing of Petition for Rulemaking (Docket No. PRM-71-10)" regarding the absence of a lead Federal agency of spent irradicted fuel on the nation's highways has been reviewed by several inter-ested State of Delaware agencies. In response to the referenced Notice we offer the following counnents:

1. No single Federal agency answerable to the public exists for " con-sidering the need for the shipments, the safety or environmental risks associated with the selected routes, or the propriety of exposing the public to these exists." While the DOE, DOT, NRC and EPA each have certain specific responsibilities, none has assumed a leadership role in this arena.

2. The NRC has the primary responsibility to protect the public against risks of radiation exposure from the transport of spent irradiated fuel shipments. Therefore, the NRC is the logical Federal agency to take the lead which probably will require Congressional action.

3. In the interim, NRC should adopt the proposed amendments to 10 CFR Part 71 as given in the referenced Docket. Adoption of the amendment would establish 100 rems /h @ 3 ft. (unshielded) from an accessible surface of a container of irradiated reactor fuel as the maximum external radiation dose rate unless further approved by the Conunission. The dose rate of 100 ress/hr (unshielded) is another matter that deserves further explanation.

Sincerely, Aw,c4-Harryh0tto,Ph.D.

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DOCKET NUMBER' PETITION RULE PRM 7/-/d 9

R CMARD F CELESTE weme STATE OF OHIO OFFICE OF THE GOVERNOR COLUMBUS 43215 (60 FK48%)

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,BRANCN Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Dear Sir:

It has been brought to my attention in the February 4, 1985, Federal Register that Governor Anthony S. Earl and Attorney General Bronson La Follette of the State of Wisconsin have petitioned the Nuclear Regulatory Commission to establish a regulatory process that would give states and other interested parties an opportunity to participate in the evaluation and approval of shipments of spent nuclear fuel.

As Governor of the State of Ohio, I too am concerned with the transport of nuclear waste. Therefore, I agree with the petition for rulemaking from the State of Wisconsing and I recommend that the U.S. Nuclear Regulatory Commisison adopt the proposed amendments to 10 CRF Part 71.

If there is any additional procedure that I may follow to ensure the adoption of these amendments, please advise me accordingly.

sincerely, Richar . Ce este A

Governor

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4 DOCKET NUMBER MITION LE__PRM]/-/Q v.Jt[! Go MGQ DOLMETEr i

STATE OF NORTH CAROLINA UShAC '

OFFICE OF THE GOVERNOR i

RALEIGH 27611 W APR 19 P3:46 JAMES G. MARTIN FC F eat it. '

April 5,1985 GOVERNOR ggERvid i

Secretary of the Comission l U. S. Nuclear Regulatory Comission l Washington, D. C. 20555 l

Dear Secretary:

l Recently, a petition was filed with the Comission by the State of Wisconsin. It dealt with the matter of proposed shipments of irradiated reactor fuel.

The North Carolina State Clearinghouse distributed the Federal Register Notice to the appropriate state agencies for review and coment, and I would like to share those coments with you. In general, we do feel it is desirable that the Nuclear Regulatory Comission should take a more active role in regulating shipments of spent nuclear fuel and should issue detailed guidelines urder which shipping would have to occur.

We do have some apprehension about the wiLdom of opening up each and every proposed shipment of spent fuel to the possibility of a long hearing process in which not only a state or municipality but "any interested person . . . along the route" could call for a hearing and could presumably intervene. Possibly, there is a workable compromise between the public's right and need to know and the need of the nuclear industry and the comission for a procedure that is predictable and not overly burdensome. The Nuclear Regulatory Comission could hold public rule-making hearings and expand its rules for spent fuel transport after taking into consideration the public concerns, especially the concerns of state and municipal officials. The rules could establish (or update) generic criteria for designating routes and alternate routes, establishing the need to ship, evaluating risks, etc.

Such an approach would allow a generic, rather than specific, examination of spent fuel shipments and thus would not pose the possibility of a hearing each time fuel is shipped. T.hroughout the process the insubend par.ticipAtjon ,of.stgte and local officials should be sought and fully considened. .

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- 1 We appreciate this opportunity for input. -

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Best personal wishes. l

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. I MARK WHITE 9l OFFICE OF THE GOVERNOR STATE C APITOL DOCKET NUMBER PE7:7;Ord nULE_PRM 7/

0 KE USNRC ooveaaoa AUSTIN, TEXAS 75m 'E APR 26 N156 April 22.1985 hy,a ,,; g , p .0CKEilnu & dEFvP.

BRANCM i Mr. Samuel J. Chilk. Secretary U.S. Nuclear Regulatory Connission Washington. D.C. 20555 j Attn: Docketing and Service Branch

Dear Mr. Chilk:

The following connents are submitted in response to your " Notice of i

Receipt of Petition for Rulemaking from the State of Wisconsin" (Federal 4

Register. Vol. 50. No. 23, February 4.1985, pgs. 4866-4867). Other res-ponsibilities and commitments prevented earlier submission of these connents but we ask that you make every. effort to consider them in addressir.g the i cited Petition for Rulemaking.

! Texas' concern regarding the proper shipment of spent fuel is based l on two considerations. First and most important, a site in Texas has been tentatively designated as one of three to undergo detailed characterization as a potential site for the nation's first repository. Second, regardless of the location selected for disposal of spent fuel, transportation of these materials through Texas is certain to occur. Four nuclear power plants are

' under construction in Texas and Texas is in the transportation corridor between other potential repository sites and operating nuclear power plants.

! Substantial attentien has been devoted to development of transportation, equipment and other safety requirements designed to minimize the risk to the i public of spent fuel. shipments. The complex nature of these systems and inade-l quacy of relevant data render definitive assessment of the risks subject to i continuing debate. It is, however irrefutable that these operations do pose some risk and that the unnecessary and uncoordinated random shipment of these materials must be avoided.

, Extensive review and monitoring of the U.S. Department of Energy program j for management of spent fuel and high-level waste has. clearly demonstrated ,

i the uncertainty penneating the planning for the DOE system for management '

of spent fuel. Numerous options including interim storage, centralized pack- '

aging and handling facilities, monitored retrievable storage, and repositories -

as well as numerous potential locations for these facilities which will not be ,

, soon integrated into a comprehensive management strategy demonstrate beyond

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Samuel J. Chilk, Secretary USNRC April 22, 1985 Page 2 doubt the impossibility of planning ctrrent utility shipments of spent fuel in a manner that will minimi.ze the overall transportation and consequent risk to, the public in ultimately disposing of these materials. Only after a compre-hensive and reasonably predictable strategy for spent fuel management has been developed and approved can there be any possibility of analyzing the impact of such shipments on the overall risk of transportation of spent fuel. Even after such a strategy has been developed, competent review of the consequences of and need for such shipments must be conducted and used as the basis for granting or denying authorization for the shipments.

The history of difficulty in developing a system for ultimately disposing of spent fuel provides obvious incentive to those storing such material for transferring responsibility and physical possession of that material at any opportunity. For example, some power plant licensees are insisting that fuel contract provisions for storage of spent fuel at an inoperative reprocessing facility be honored. Whether or not that transfer of spent fuel will ultimately increase or decrease the overall transportation required cannot be determined at this time. In another case spent fuel is being shipped from an inoperative repro-cessing facility back to the nuclear power plants where it was produced. Further-more, there is no evidence to indicate (1) that licensees review shipment of spent fuel to in any way minimize the national requirements for such operations and assess their need, or (2) that licensees provide any opportunity for meaning-ful input from the affected public or from other knowledgeable interests. As stated above, these shipments should be minimized until adoption of a comprehensive management strategy allowing analysis and minimization of the overall transportation burden.

In view of these general concerns regarding the sufficiency of current trans-portation regulations for spent fuel, we are convinced that the concept proposed by the cited Petition for Rulemaking is valid and should be addressed in regula-tions proc:ulgated by the Nucler.r Regulatory Commission. This responsibility justifiably falls on the Nuclear Regulatory Comission as the focal point of regulation if nuclear materials and their use as provided by the Energy Reorgani-zation Act of 1974 (P.L.93-438) and the Atomic Energy Act of 1954 (P.L.83-703).

With respect to the language proposed by the petitioner, we offer two specific coninents. The proposed text provides for regulation of irradiated reactor fuel. We recorm:end that the rule apply also to high-level waste and "other highly radioactive material that the Cournission ... determines by rule requires permanent isolation" under the provisions of the Nuclear Waste Policy Act (P.L.97-425).

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Samuel J. Chilk, Secretary USNRC April 22, 1985 Page 3

Our other concern is that the rule clearly specify that all spent fuel and high-level waste transpo'rtation activities undertaken by the U.S. Department of' Energy in implementation of responsibilities delegated under the Nuclear J

Waste Policy Act be subject to these proposed transportation regulations. Var-ious storage and disposal facilities that the DOE may develop require licensing by the NRC and application of transportation regulations to shipments related 1

to use of those facilities would be entirely consistent with the Nuclear Waste Policy Act. In the absence of a binding commitment that overall transportation risk will be minimized in the DOE management strategy, the NRC should regulate j

these activities.

j Thank you for your consideration of these comments. We look forward to reviewing your' response to the Petition for Rulemaking and the consnents submitted on that proposal.

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Yours truly, M "

Dan Smith, Assistant Director i

Nuclear Waste Programs Office cc: Steve Frishman, Director, NWP0 Bob Halstead Wisconsin Division of State Energy i

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DOCKET NUM86

, , PETITION ltulE E [b TENNESSEE CHATTANOOCA. TENNEs5EE VALLEY 37401 AUTHORITY @f Mfh 1630 Chestnut street Tower II OttMETEC April 24, 1985 USNRC Secretary of the Commission U.S. Euclear Regulatory Commission 550WO Attention:

Washington. D.C. 20555 Docketing and service Branch GFFICr 0F SECRt'TAa -

00CnfTsseG a steytcr BRANCH

Dear Sir:

petition For Bu1=hing, p55-71-10TennesseeValleyAuthorityispleaseh en the filed by the state of Wi sconsin as i

The petitioner requested IRC to establish, egulatory

. through a ne process, of opent fuel. additional means for the evaluation and approval -

-- pments of shi i i We believe the proposal to amend 10 CFR part 71essary is unnec (1) the current eerhasis upon design safety of spent f given uel containers in fact that plant licensing included spent . (3) thefuel eensiderstl  ;

offered an opportunity for public participation, ands(4) andthe  ;

regulations spent fuel shipment. of the Department of Transportation (Doy) that portala to for safety adequately and environmental considered. consequences of spent fuel shiThese pments are  ;

There is no showing that an additional evaluation increased public health and safety protection would rovide any p I expense and delays associated with an additional In contrast.overlaythe of revi t

the possible adverse safety implications of routing discl ew and by the Wisconsin osures sought ru1==hing proposal. petition are factors that clearly galast weigh a the The proposal is r= 6 - 6 t of existing requirements licensee any only ship spent fuel in accordance For with example, its lia ~' '

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cense la 10 CFR 73.37)* and pursuant to DOTeas.safety e.g.. and .grouting u

These procedures identify and address route-specific conditi ons that exist which might cause the public health sad safety to be je opardised

,l from accidents radiological exposure. or sabotage, including risks fram'not a ms minial i rigid safety evolustion.Also, shipping casks are already subject to a Currently the Governor, or his designee, for each State al ong the proposed route is notified of and participates la the shipment I g$h M ddd Mb h f

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