[Federal Register Volume 60, Number 143 (Wednesday, July 26, 1995)]
[Proposed Rules]
[Pages 38286-38288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18318]



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NUCLEAR REGULATORY COMMISSION
10 CFR Part 72

[Docket No. PRM-72-1]


Maryland Safe Energy Coalition; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-72-1) from Richard Ochs submitted on behalf of the 
Maryland Safe Energy Coalition. The petitioner requested several 
amendments to the regulations governing the independent storage of 
spent fuel in dry casks.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter to the petitioner are available for 
public inspection and/or copying in the NRC Public Document Room, 2120 
L Street, NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. Gordon E. Gundersen, Office of 
Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6195.

SUPPLEMENTARY INFORMATION:

The Petition

    On June 23, 1993, Mr. Richard Ochs, on behalf of the Maryland Safe 
Energy Coalition, filed a petition for rulemaking with the NRC.
    The petition relates to generic requirements for the licensing of 
independent storage of spent fuel in dry casks found in the 
Commission's regulations contained in 10 CFR Part 72. In particular, 
Subpart B provides information required to be submitted in a license 
application, Subpart C provides requirements for the issuance and 
conditions of a license, Subpart D provides the requirements for the 
records that must be kept by a licensee, and Subpart E provides 
requirements for evaluation of the storage facility site.
    The petitioner requested that the NRC amend 10 CFR Part 72 to read 
as follows:
    1. In Sec. 72.22(e)(2), ``Contents of application: General and 
financial information,'' add ``Specify the planned life of the ISFSI.''
    2. In Sec. 72.22(e)(3), ``Contents of application: General and 
financial information,'' change ``after the removal of spent fuel and/
or high-level radioactive waste'' to ``if the spent fuel and/or the 
high-level radioactive waste is removed.''
    3. In Sec. 72.42, ``Duration of license; renewal,'' add a new 
paragraph (d) to read ``No license will be issued before 90 days after 
the final safety evaluation report (SER) is published.''
    4. In Sec. 72.44(c)(3), ``License conditions,'' add paragraph (v) 
to read ``dry storage casks must be monitored continuously for 
radioactivity at the exit cooling vents.''
    5. In Sec. 72.46(d), ``Public hearings,'' add ``The time prescribed 
for a notice of opportunity for a hearing or petition for leave to 
intervene will extend from the notice of proposed action through 90 
days after the final SER is published.''
    6. In Sec. 72.72(a), ``Material balance, inventory, and records 
requirements for stored materials,'' after the first sentence add ``The 
records must include the history and condition of all spent fuel 
assemblies including a description of any defective fuel, such as fuel 
that is cracked, swollen, blistered, pinholed, or offgassing.''
    7. In Sec. 72.104(a) ``Criteria for radioactive materials in 
effluents and direct radiation from ISFSI or MSR,'' in place of 
``real'' put ``maximally exposed''; after ``individual'' add ``or 
fetus''; change ``25 mrem'' to ``5 mrem''; change ``75 mrem'' to ``15 
mrem''; and change ``25 mrem'' to ``5 mrem''. The sentence would then 
read, ``* * * dose equivalent to any maximally exposed individual or 
fetus who is located beyond the controlled area must not exceed 5 mrem 
to the whole body, 15 mrem to the thyroid and 5 mrem to any other organ 
* * * ''
    This petition for rulemaking stems from earlier actions regarding 
the Calvert Cliffs Independent Spent Fuel Storage Installation (ISFSI). 
On December 21, 1992, the petitioner filed a petition requesting that 
the NRC institute a proceeding pursuant to Sec. 2.206 with regard to 
the Calvert Cliffs ISFSI. In acknowledging the receipt of the December 
21, 1992, petition, the Director, Office of Nuclear Material Safety and 
Safeguards, indicated that to the extent it addressed generic issues 
related to dry cask storage, the appropriate course of action would be 
to file a petition for rulemaking. The Director's decision dated August 
16, 1993, denied the Sec. 2.206 petition, Baltimore Gas and Electric 
Company (Calvert Cliffs Independent Spent Fuel Storage Installation), 
DD-9-14 (August 16, 1993); 58 FR 44863 (August 25, 1993). This 
rulemaking petition filed on June 23, 1993, addresses many of the 
generic issues that were raised in the December 21, 1992, Sec. 2.206 
petition.

Basis for Request

    As a basis for the requested action, the petitioner stated that, as 
an environmental consumer organization, the Maryland Safe Energy 
Coalition is interested in the minimization and safe storage of nuclear 
waste including spent fuel at nuclear power plant sites in general.
    The petitioner indicated that it is particularly concerned about 
spent fuel storage at the Calvert Cliffs Nuclear Power Plant, which is 
operated by Baltimore Gas and Electric Company (BG&E). The petitioner 
stated that even though the spent fuel at Calvert Cliffs is stored 
under a specific Part 72 license, many of the generic requirements 
proposed by the petitioner would be the same or similar to the specific 
requirements applicable to independent spent fuel storage at Calvert 
Cliffs.

Public Comments on the Petition

    A notice of filing of petition for rulemaking was published in the 
Federal Register on September 8, 1993 (58 FR 47222). Interested persons 
were requested to submit written comments or suggestions concerning the 
petition by November 22, 1993. The NRC received five comment letters 
from the industry and industrial associations, four from individuals, 
one from an environmental group, and two from governmental agencies. 
The commenters were evenly split, six supporting all or parts of the 
petition and six rejecting the petition. The supporters' comments 
generally supported the additional 90 days to review the Safety 
Evaluation Report (SER), the need for records because of the 
uncertainty of knowing how long the spent fuel will be stored, the need 
for continuously monitoring radiation leaving storage cask vents, and 
lower radiation limits. The commenters objecting to the petition were 
more specific, often citing the Director's decision under Sec. 2.206, 
Baltimore Gas & Electric Co. (Calvert Cliffs Independent Spent Fuel 
Storage Installation), DD-93-14, August 16, 1993. Concerning extending 
the opportunity for hearing or petition to 90 days after the final SER 
is issued, the objecting commenters cited the NRC hearing and petition 
processes as providing ample opportunity for public participation. In 
refuting the lower radiation limits, the objectors cited studies and 
reports by respected organizations and other regulations 

[[Page 38287]]
including EPA's 40 CFR Part 190 and the recently revised 10 CFR Part 
20. Additional information was also received from the petitioner. The 
petition and the comments received in response to the notice of filing 
are available for inspection in the NRC Public Document Room identified 
above.

Reasons for Denial

    The NRC has considered the petitioner's requested amendments, the 
public comments received, and other related information. The following 
discussion addresses each of the seven parts of the petitioner's 
requested amendments quoted above and the NRC's response.
    Part 1: The petitioner requests that Sec. 72.22(e)(2) be revised by 
adding ``Specify the planned life of the ISFSI.''
    In the existing Sec. 72.22(e), there is already the requirement for 
the applicant to specify the period of time for which the license is 
requested. The petitioner's request is therefore unnecessary and 
redundant because the applicant is already required to specify the 
planned life of the ISFSI, that is, the period of time for which the 
license is requested.
    Part 2: The petitioner requests that wording of Sec. 72.22(e)(3) be 
changed from ``after the removal of spent fuel and/or high-level 
radioactive waste'' to ``if the spent fuel and/or the high-level 
radioactive waste is removed.''
    DOE is required by the Nuclear Waste Policy Act of 1982 to accept 
spent fuel for ultimate disposal. Moreover, the Commission made a 
generic determination in its Waste Confidence Decisions (September 18, 
1990; 55 FR 38474 and August 31, 1984; 49 FR 34694) that there is 
reasonable assurance that safe disposal is technically feasible and 
will be available within the first quarter of the 21st century. The NRC 
therefore does not believe it is either necessary or appropriate to 
revise the existing wording of the regulation as requested by the 
petitioner.
    Part 3 and Part 5: The petitioner requests a new paragraph (d) be 
added to Sec. 72.42 to read ``No license will be issued before 90 days 
after the final safety evaluation report (SER) is published.'' The 
petitioner believes that significant new issues will be contained in 
the final SER. The petitioner also requests that the following be added 
to Sec. 72.46(d): ``The time prescribed for a notice of opportunity for 
a hearing or petition for leave to intervene will extend from the 
notice of proposed action through 90 days after the final SER is 
published.'' The petitioner states that if a notice of opportunity for 
a hearing or intervention is limited to a short period after the 
license application, interested parties may be prevented from obtaining 
a hearing based on the second or final SER. Information in the latter 
safety reports may impact on the advisability of issuing a license. The 
public should have the right and opportunity to comment on the final 
Safety Analysis Report (SAR) and SER before a license is issued.
    An applicant for a site-specific dry cask storage license is 
required by Sec. 72.24 to submit a detailed safety analysis report 
(SAR) with the application for license to the NRC. The applicant's SAR 
contains the detailed basis for requesting a license and, more 
particularly, for demonstrating compliance with NRC licensing 
standards. Following receipt of an application, the NRC publishes a 
notice of docketing an application for an ISFSI in the Federal Register 
as required by Sec. 72.16(e). This notice, which may be combined with a 
notice of opportunity for a hearing, will typically indicate where a 
copy of the detailed SAR may be examined. An individual is allowed 30 
days from the notice of proposed action to request that NRC grant a 
hearing in accordance with Sec. 2.105 and Sec. 2.1107. The 30-day 
period is provided so that the individual can review the license 
application and SAR and determine whether to request a hearing or 
intervention. The SAR will provide ample information for the individual 
to make the determination. At the same time, the NRC technical staff 
will commence its review of the SAR and other relevant documents and 
preparation of an SER. These documents and the license are placed in 
the NRC Public Document Room and the Local Public Document Room near 
the licensee site where they are also available for review. Should the 
SER contain a new issue (as opposed to new evidence on an issue 
apparent from the SAR) pertinent to the requested license, an 
interested party could seek late intervention or submit a late-filed 
contention as allowed by Sec. 2.714. Finally, a party can petition the 
NRC to modify a license if new information comes to light after the 
license is issued. Thus, an individual has ample opportunity to 
participate in the ISFSI licensing process and to review and raise 
issues concerning the SER. Adding another 90-day delay in issuing the 
license would not significantly improve the process for licensing the 
safe operation of an ISFSI.
    Part 4: The petitioner requests a new paragraph (v) be added to 
Sec. 72.44(c)(3) to read ``dry storage casks must be monitored 
continuously for radioactivity at the exit cooling vents.'' The 
petitioner states that the exit vents are the most likely location of 
radioactive venting, and it is therefore logical that monitors would be 
required at these locations.
    NRC regulations already require that the license (or Certificate of 
Compliance in the case of an NRC approved cask) include surveillance 
and monitoring requirements to determine when corrective actions need 
be taken to maintain safe storage conditions. See, e.g., 10 CFR 
72.122(h)(4). In addition, radiation monitoring and environmental 
monitoring programs are also already required (e.g., 10 CFR 72.126), 
and these programs can be expected to detect any radiation leak in 
excess of NRC limits from an NRC-approved cask. Furthermore, the NRC-
approved cask designs which use cooling vents and air flow between the 
fuel canister and the concrete biological shield for cooling also are 
designed to require double seal closure welds on the canister. These 
welds are inspected and the canister leak tested after being loaded. 
There is no known long-term degradation mechanisms which would cause 
the weld to fail within the design life of the canister. Therefore, the 
regulation proposed by the petitioner is not needed.
    Part 5: The response to this part has been combined with the 
response to Part 3 and is addressed above.
    Part 6: The petitioner requests that the following be added after 
the first sentence in Sec. 72.72(a): ``The records must include the 
history and condition of all spent fuel assemblies including a 
description of any defective fuel, such as fuel that is cracked, 
swollen, blistered, pinholed, or offgassing.'' The petitioner states 
that defective fuel can cause problems for safe storage; therefore, the 
history and condition of all spent fuel should be documented.
    NRC regulations already require that the license (or Certificate of 
Compliance in the case of an NRC-approved cask) must include 
specifications for the conditions of fuel assemblies to be loaded into 
storage casks. See, e.g., 10 CFR 72.44(c). These regulations also 
require that licensees must demonstrate in procedures and records that 
the fuel load meets the cask design criteria. In addition, licensees 
must conduct loading operations in accordance with written procedures 
which must be specific enough to demonstrate that only fuel assemblies 
that meet the cask design criteria can be loaded. Licensees are 
required to maintain records, including the condition of the fuel, of 

[[Page 38288]]
all fuel assemblies in storage casks or in the pool. See, e.g., 10 CFR 
Part 50 Appendix B, XVII, ``Quality Assurance Records,'' and 10 CFR 
72.174, ``Quality Assurance Records.'' Therefore, additional records as 
proposed by the petitioner are not necessary.
    Part 7: The petitioner requests the following revisions to 
Sec. 72.104(a): in place of ``real'' put ``maximally exposed''; after 
``individual'' add ``or fetus''; change ``25 mrem'' to ``5 mrem''; 
change ``75 mrem'' to ``15 mrem''; and change ``25 mrem'' to ``5 
mrem.'' The sentence will then read, ``* * * dose equivalent to any 
maximally exposed individual or fetus who is located beyond the 
controlled area must not exceed 5 mrem to the whole body, 15 mrem to 
the thyroid and 5 mrem to any other organ * * *''
    The change of the word ``real'' to ``maximally exposed'' in 
Sec. 72.104(a) is not needed. In the regulation, the word ``real'' in 
the phrase ``The annual dose equivalent to any real individual who is 
located beyond the controlled area * * *'' refers to an individual who 
lives closest to the boundary of the controlled area. This individual 
is, in general, the maximally exposed individual because other 
individuals are further away from the controlled area. If the 
petitioner's suggested words ``maximally exposed'' were adopted, it 
could mean that an imaginary individual would be continually present at 
the boundary of the controlled area. The NRC regulates radiation doses 
on the basis of real people in proximity to the boundary of the 
controlled area.
    Section 72.104(a) establishes the bases for the amount of 
radioactive materials permitted in ISFSI effluents and direct radiation 
from an ISFSI. It imposes limits on the annual dose equivalent that is 
received by an individual who is located beyond the controlled area. 
The petitioner referred to a 1990 study by Alice Stewart that allegedly 
supports the conclusion that the standards incorporated in 
Sec. 72.104(a) are too high for a developing fetus, women, and 
children. The petitioner cited additional references during the comment 
period.
    Section 72.104(a) does not incorporate exposure limits that are 
unique to ISFSI operation. Rather, the exposure limits used in Part 72 
are based on the Environmental Protection Agency's (EPA) Environmental 
Radiation Standards for fuel cycle facilities specified in 40 CFR Part 
190. 45 FR 74693 (November 11, 1980). Moreover, the EPA, commenting on 
the proposed 10 CFR Part 72, stated: ``Our only comment of substance 
concerns your requirement that such independent storage facilities 
provide radiation protection consistent with the Agency's public health 
protection standards for the Uranium Fuel Cycle (40 CFR 190). We 
generally support your use of these requirements.''
    The Sec. 72.104(a) exposure limits are also consistent with the 
recent revision of 10 CFR Part 20--Standards for Protection Against 
Radiation which became effective on January 1, 1994. This revision was 
comprehensive in scope and reflects state-of-the-art data on radiation 
protection. This revision was based on recommendations and studies of 
expert groups through 1990, including the International Commission on 
Radiological Protection, the National Council on Radiation Protection 
and Measurements, the United Nations Scientific Committee on the 
Effects of Atomic Radiation, and the National Academy of Science's 
Committee on the Biological Effects of Ionizing Radiation (BEIR). Among 
other things, these studies analyzed the data on radiation exposure to 
a developing fetus. In sum, the NRC's radiation protection standards 
are based on a body of recent, authoritative, and substantial data. The 
petition fails to provide an adequate basis for its requested revisions 
to Sec. 72.104(a).
    It should also be noted that both 10 CFR Parts 20 and 72 have 
requirements to keep radiation exposures as low as reasonably 
achievable (ALARA). Experience to date with ISFSI operations has 
demonstrated that due to the conservative ISFSI designs and the 
application of ALARA requirements, the radiation levels associated with 
ISFSI operations are in fact well below regulatory limits.
    For the foregoing reasons, the petition is denied.

    Dated at Rockville, Maryland, this 11th day of July, 1995.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 95-18318 Filed 7-25-95; 8:45 am]
BILLING CODE 7590-01-P