[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Proposed Rules]
[Pages 59677-59684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28594]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 72
RIN 3150-AG15
Clarification and Addition of Flexibility
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations on spent fuel storage to specify those sections of 10
CFR Part 72 that apply to general licensees, specific licensees,
applicants for a specific license, certificate holders, and applicants
for a certificate. The proposed amendment is consistent with past NRC
staff licensing practice and would eliminate any ambiguity for these
persons by clarifying which portions of Part 72 apply to their
activities. This proposed rule would eliminate the necessity for
repetitious Part 72 specific license hearing reviews of cask design
issues that the Commission previously considered and resolved during
approval of the cask design. This proposed rule would also allow an
applicant for a Certificate of Compliance (CoC) to begin cask
fabrication under an NRC-approved quality assurance (QA) program before
the CoC is issued.
DATES: Submit comments by January 18, 2000. Comments received after
this date will be considered if it is practical to do so, but the
Commission is able to ensure consideration only for comments received
on or before this date.
ADDRESSES: Comments may be sent by mail to the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking
web site through the NRC home page (http://www.nrc.gov). This site
provides the availability to upload comments as files (any format), if
your web browser supports that function. For information about the
interactive rulemaking site, contact Ms. Carol Gallagher (301) 415-
5905; e-mail [email protected]
Certain documents related to this rulemaking, including comments
received, the regulatory analysis, and a Table of Applicability, may be
examined at the NRC Public Document Room, 2120 L Street NW. (Lower
Level), Washington, DC. These same documents also may be viewed and
downloaded electronically via the interactive rulemaking website
established by NRC for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Anthony DiPalo, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6191, or e-mail at
[email protected]
SUPPLEMENTARY INFORMATION:
Background
The Commission's regulations at 10 CFR Part 72 were originally
designed to provide specific licenses for the storage of spent nuclear
fuel in an independent spent fuel storage installation (ISFSI) (45 FR
74693; November 12, 1980). In 1990, the Commission amended Part 72 to
include a process for approving the design of spent fuel storage casks
and issuing a CoC (Subpart L) and for granting a general license to
reactor licensees (Subpart K) to use NRC-approved casks for the storage
of spent nuclear fuel (55 FR 29181; August 17, 1990). Although the
Commission intended that the requirements imposed in Subpart K for
general licensees be used in addition to, rather than in lieu of,
appropriate existing requirements, ambiguity exists as to which Part 72
requirements, other than those in Subpart K, are applicable to general
licensees.
In addition, the Commission has identified two aspects of Part 72
where it would be desirable to reduce the regulatory burden and provide
additional flexibility to applicants for a specific license or for a
CoC.
First, the staff anticipates that the Commission may receive
several applications for specific licenses for ISFSI's that will
propose using storage cask designs previously approved by NRC under the
provisions of Subpart L of Part 72 (i.e., cask designs that have been
issued a CoC and are listed in Sec. 72.214). Section 72.18,
``Elimination of repetition,'' permits an applicant to incorporate by
reference information contained in previous applications, statements,
or reports filed with the NRC, including cask designs approved under
Subpart L. Section 72.46 requires that in an application for a license
under Part 72, the Commission shall issue or cause to be issued a
notice of proposed action and opportunity for a license hearing in
accordance with 10 CFR Part 2. Under current Part 72 regulations, the
adequacy of the design of these previously approved casks could be at
issue during a Sec. 72.46 license hearing for a specific license
[[Page 59678]]
application (i.e., issues on the cask design which have been previously
addressed by the Commission, including resolution of public comments,
that could be the subject of license hearings).
Second, Sec. 72.234(c), which was part of the 1990 amendments to
Part 72, prohibits an applicant for a CoC from beginning fabrication of
a spent fuel cask before the NRC issues a CoC for the cask design.
However, an applicant for a specific license is currently allowed to
begin fabrication of spent fuel storage casks before the license is
issued. At the time the 1990 rule was proposed, a commenter suggested
that a fabricator (i.e. applicant for a CoC) be allowed to take the
risk of beginning fabrication before the receipt of the CoC. However,
the Commission took the position, ``[i]f a vendor has not received the
certificate, then the vendor does not have the necessary approved
specifications and may design and fabricate casks to meet incorrect
criteria,'' ( 55 FR 29185; August 17, 1990).
Since 1990, the Commission has reviewed and approved several cask
designs. These reviews and follow-up requests for additional
information have established the NRC's expectation as to how its
criteria for cask design and fabrication should be met. In January
1997, the NRC published NUREG-1536, ``Standard Review Plan for Dry Cask
Storage Systems,'' informing CoC applicants of its expectations in
reviewing cask designs. Since then, the Commission has granted six
exemptions from Sec. 72.234(c) allowing applicants to begin fabrication
prior to issuance of the CoC. One exemption request is currently under
review by NRC. Additional exemption requests from Sec. 72.234(c)
requirements are anticipated.
Discussion
Clarification
This proposed rulemaking would eliminate the regulatory uncertainty
that now exists in Part 72 by adding a new section Sec. 72.13 which
specifies which Part 72 regulations apply to general licensees,
specific licensees, applicants for a specific license, certificate
holders, and applicants for a CoC.
Flexibility
First, this proposed rule would eliminate the necessity for
repetitious Sec. 72.46 specific license hearing board reviews of cask
design issues that the Commission has previously considered during
approval of the cask design. The Commission anticipates receipt of
several applications, for specific ISFSI licenses, that will propose
using storage cask designs previously approved by the NRC. Applicants
for a specific license presently have the authority under Sec. 72.18 to
incorporate by reference into their application, information contained
in previous applications, statements, or reports filed with the
Commission, including information from the Safety Analysis Report on a
cask design previously approved by the NRC under the provisions of
Subpart L. The Commission believes previously reviewed cask design
issues should be excluded from the scope of a license hearing. This is
because the public had the right during the Subpart L approval process
to comment on the adequacy of the cask design. The right of the public
to comment on cask designs would not be affected by this rulemaking.
For new cask design issues, this rulemaking would not limit the scope
of staff's review of the application or of license hearings. For
example, a cask's previously reviewed and approved thermal,
criticality, and structural designs could not be raised as issues in a
licensing hearing. However, design interface issues between the
approved cask design and specific site characteristics (e.g.,
meteorological, seismological, radiological, and hydrological) or
changes to the cask's approved design may be raised as issues at a
potential hearing. Furthermore, the rights of the public to petition
the Commission under Sec. 2.206 to raise new safety issues on the
adequacy of the cask design would not be affected by this rulemaking.
Second, the proposed rule would permit an applicant for approval of
a spent fuel storage cask design under Subpart L to begin fabrication
of casks before the NRC has approved the cask design and issued the
CoC. Currently, an applicant for a CoC is not permitted under
Sec. 72.234(c) to begin cask fabrication until after the CoC is issued.
Applicants for a specific license, and their contractors, are currently
allowed to begin fabrication of casks before the Commission issues
their license. However, general licensees and their contractors (i.e,
the certificate holder) are not allowed to begin fabrication before the
CoC is issued. Consequently, this proposed rule would eliminate NRC's
disparate treatment between general and specific licensees. In addition
to allowing an applicant for a CoC to begin fabrication of a cask,
comments would be requested on the need for a general licensee to also
begin fabrication of a cask before issuance of the CoC. The Commission
and the staff have previously determined that exemptions from the
fabrication prohibition are authorized by law and do not endanger life
or property, the common defense, or security and are otherwise in the
public interest. The Commission anticipates that additional cask
designs will be submitted to the NRC for approval and expects that
these designs will be similar in nature to those cask designs that have
already been approved. The Commission also expects that exemption
requests to permit fabrication would also be received. This rulemaking
would eliminate the need for such exemption requests.
This proposed rule would revise the quality assurance regulations
in Subpart G of Part 72 to require that an applicant for a CoC, who
voluntarily wishes to begin cask fabrication, must conduct cask
fabrication under an NRC-approved QA program. Currently, applicants for
a CoC are required by Sec. 72.234(b) to conduct design, fabrication,
testing, and maintenance activities under a QA program that meet the
requirements of Subpart G. Prior NRC approval of the applicant's QA
program is not required by Sec. 72.234(b). However, Sec. 72.234(c)
precludes cask fabrication until after the CoC is issued. The
Commission believes this proposed rule is a conditional relaxation to
permit fabrication before the CoC is issued. Since NRC staff would
approve the applicant's QA program as part of issuance of a CoC, staff
approval of the QA program prior to fabrication is a question of timing
(e.g., when the program is approved, as opposed to imposing a new
requirement for approval of a program). The Commission expects that any
financial or scheduler risks associated with fabrication of casks prior
to issuance of the CoC would be borne by the applicant. The Commission
believes that the proposed rule is not a backfit because Sec. 72.62
applies to licensees after the license is issued and does not apply to
applicants prior to issuance of the license or CoC. This rule would
require that a cask for which fabrication was initiated before issuance
of the CoC must conform to the issued CoC before it may be used.
This proposed rule would also require an applicant for a specific
license, who voluntarily wishes to begin fabrication of casks before
the license is issued, to conduct fabrication under an NRC-approved QA
program. Currently, an applicant for a specific license is required by
Sec. 72.140(c) to obtain NRC approval of its QA program before spent
fuel is loaded into the ISFSI. The Commission does not believe this
proposed rule would impose a separate requirement, rather it would
require
[[Page 59679]]
different timing on when the QA program is approved.
This proposed rule would also revise Sec. 72.140(d) to allow a
licensee, applicant for a license, certificate holder, and applicant
for a CoC to use an existing Part 50, 71, or 72 QA program that was
previously approved by the NRC.
As a result of this proposed rule, both licensees and certificate
holders will be required to accomplish any fabrication activities under
an NRC-approved QA program. The Commission believes this proposed
rule's increase in flexibility and change in timing of approval of a QA
program is not a backfit.
In addition to an applicant's fabrication of a cask design prior to
issuance of the CoC, the Commission is requesting comments on the need
for a general licensee to also begin fabrication of a cask design,
before the cask design is approved and the CoC is issued.
Section-by-Section Discussion of Proposed Amendments
This proposed rule would make several amendment changes to Part 72
which are characterized as follows. This proposed rule would eliminate
the regulatory uncertainty that now exists in Part 72 and explicitly
specifies which regulations apply to general licensees, specific
licensees, and certificate holders. The proposed rule would eliminate
the necessity for repetitious reviews in a specific license hearing of
cask design issues that the Commission previously considered during
approval of the cask design. The proposed rule would permit an
applicant for approval of a spent fuel storage cask design to begin
cask fabrication, at its own risk, before the NRC has issued the CoC.
The proposed rule would require that NRC approval of the quality
assurance program be obtained before cask fabrication can commence.
Section 72.13 Applicability
This new section identifies those sections of Part 72 that apply to
specific licenses, general licenses, and Certificates of Compliance. No
changes to the underlying regulations would result from this amendment,
it is intended for clarification only.
Section 72.46 Public Hearings
A new paragraph (e) would be added to this section to indicate that
the scope of any license hearing, for an application for an ISFSI
license, shall not include any issues that were previously resolved by
the Commission during the approval process of the design of a spent
fuel storage cask, when the application incorporates by reference,
information on the design of an NRC-approved spent fuel storage cask.
The Commission considers rereview of cask design issues, which have
been previously resolved as an unnecessary regulatory burden on
applicants causing unnecessary expenditure of staff and hearing board
resources. For example, the cask's previously reviewed and approved
thermal, criticality, and structural designs could not be raised as
issues in a hearing. However, design interface issues between the
approved cask design and specific site characteristics (e.g.,
meteorological, seismological, radiological, and hydrological) or
changes to the cask's approved design may be raised as issues at a
potential hearing.
This proposed rulemaking would not limit the scope of staff's
review of the application or of license hearings, for new cask design
issues that were not considered by the Commission during previous
approval of the cask design. In addition, the rights of the public to
petition the Commission under Sec. 2.206 to raise new safety issues on
the adequacy of the cask design would not be affected by this
rulemaking.
Section 72.86 Criminal Penalties
Paragraph (b) of this section lists those Part 72 regulations for
which criminal sanctions may not be issued, because the Commission
considers these sections to be non-substantive regulations issued under
the provisions of Sec. 161(b), (i), or (o) of the Atomic Energy Act of
1954 (AEA).
Substantive regulations are those regulations that create duties,
obligations, conditions, restrictions, limitations, and prohibitions
(see final rule on ``Clarification of Statutory Authority for Purposes
of Criminal Enforcement'' (57 FR 55062; November 24, 1992)). The
Commission considers that the new Sec. 72.13 would not be a substantive
regulation, issued under the provisions of Sec. 161(b), (i), or (o) of
the AEA. Therefore, paragraph (b) of this section would be revised to
add Sec. 72.13 to indicate that willful violations of this new section
would not be subject to criminal penalties.
Section 72.140 Quality Assurance Requirements
Paragraph (c)(1) would be revised to add applicants for a specific
license and applicants for a CoC. Paragraph (c)(2) would be revised to
add the requirement that an applicant for a specific license shall
obtain NRC-approval of its QA program before beginning fabrication or
testing of a spent fuel storage cask. Paragraph (c)(3) would be revised
to indicate that an applicant for a CoC shall obtain NRC-approval of
its QA program requirement before beginning fabrication or testing of a
spent fuel storage cask. These revisions would result in consistent
treatment of general licensees, specific licensees, applicants for a
specific license, certificate holders, and applicants for a CoC. These
revisions would also ensure that the NRC has reviewed and approved a QA
program before commencement of any fabrication or testing activities.
Paragraph (d) would be revised to clarify the use of previously
approved QA programs by a licensee, applicant for a license,
certificate holder, and applicant for a CoC. The Commission expects
these persons to notify the NRC of their intent to use a QA program
previously approved by the NRC under the provisions of Parts 50, 71, or
72.
Section 72.234 Conditions of approval
Paragraph (c) of this section would be revised to permit an
applicant for a CoC to begin fabrication of spent fuel storage casks
(under an NRC-approved QA program), at the applicant's own risk, before
the NRC issues the CoC. The Commission expects that any risks
associated with fabrication (e.g., rewelding, reinspection, or even
abandonment of the cask) would be borne by the applicant. The NRC would
also require that a cask fabricated before the CoC was issued conform
to the issued CoC before spent fuel is loaded. Requiring an applicant
to conform a fabricated cask to the issued CoC would not be subject to
the backfit review provisions of Sec. 72.62.
Section 72.236 Specific Requirements For Spent Fuel Storage Cask
Approval
The introductory text in this section before paragraph (a) would be
revised as a conforming change to Sec. 72.234(c) to indicate that all
of the requirements in this section apply to both certificate holders
and applicants for a CoC.
Criminal Penalties
For the purposes of Section 223 of the Atomic Energy Act (AEA), the
Commission is issuing the proposed rule to amend 10 CFR 72.140, 72.234,
and 72.236 under one or more of Sections 161b, 161i, or 161o of the
AEA. Willful violations of the rule would be subject to criminal
enforcement.
Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' approved by the Commission on June 30, 1997,
and published in the Federal Register on September 3, 1997 (62 FR
46517), this
[[Page 59680]]
proposed rule is classified as Category NRC. Compatibility is not
required for Category NRC regulations. The NRC program elements in this
category are those that relate directly to areas of regulation reserved
to the NRC by the AEA or the provisions of Title 10 of the Code of
Federal Regulations.
Plain Language
The Presidential Memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing,'' directed that the government's
writing be in plain language. The NRC requests comments on this
proposed rule specifically with respect to the clarity and
effectiveness of the language used. Comments should be sent to the
address listed under the heading ADDRESSES above.
Voluntary Consensus Standards
The National Technology Transfer Act of 1995, (Pub. L. 104-113),
requires that Federal agencies use technical standards that are
developed or adopted by voluntary consensus standards bodies unless the
use of such a standard is inconsistent with applicable law or otherwise
impractical. The NRC is proposing to amend its regulations on spent
fuel storage in those sections of 10 CFR Part 72 that apply to general
licensees, specific licensees, applicants for a specific license,
certificate holders, and applicants for a certificate. This proposed
rule would eliminate the necessity for repetitious Part 72 specific
license hearing reviews of cask design issues that the Commission
previously considered and resolved during approval of the cask design.
This proposed rule would also allow an applicant for a Certificate of
Compliance (CoC) to begin cask fabrication before the CoC is issued.
This action does not constitute the establishment of a standard that
establishes generally applicable requirements.
Environmental Impact: Categorical Exclusion
The NRC has determined that this proposed rule is the type of
action described in the categorical exclusion in 10 CFR 51.22(c)(2) and
(3). This action represents amendments to the regulations which are
corrective or of a minor or nonpolicy nature and do not substantially
modify the existing regulations. Therefore, neither an environmental
impact statement nor an environmental assessment has been prepared for
this proposed rule.
Paperwork Reduction Act Statement
This proposed rule would decrease the burden on licensees by
eliminating the requirement to request an exemption to begin cask
design before a license is issued, and by allowing all licensees and
CoC holders to reference previously approved QA programs. The public
burden reduction for this information collection would average 200
hours per exemption request. However, because no burden has previously
been approved for exemption requests and no licensees are expected to
reference previously approved QA programs in the foreseeable future, no
burden reduction can be taken for this rulemaking. Existing
requirements were approved by the Office of Management and Budget,
approval number 3150-0132.
Public Protection Notification
If a means used to impose an information collection does not
display a currently valid OMB control number, the NRC may not conduct
or sponsor, and a person is not required to respond to, the information
collection.
Regulatory Analysis
Statement of the Problem and Objective
The Commission's regulations at 10 CFR Part 72 were originally
designed to provide specific licenses for the storage of spent nuclear
fuel in independent spent fuel storage installations (ISFSIs) (45 FR
74693; November 12, 1980). In 1990, the Commission amended Part 72 to
include a process for approving the design of spent fuel storage casks
and issuance of a CoC (Subpart L); and for granting a general license
to reactor licensees (Subpart K) to use NRC-approved casks for storage
of spent nuclear fuel (55 FR 29181; August 17, 1990). Although the
Commission intended that the requirements imposed in Subpart K for
general licensees be used in addition to, rather than in lieu of,
appropriate existing requirements, ambiguity exists as to which of the
Part 72 requirements, other than those in Subpart K, are applicable to
general licensees. This rulemaking would resolve that ambiguity.
In addition, the Commission has identified two aspects of Part 72
where it would be desirable to reduce the regulatory burden for
applicants, NRC staff, and hearing boards and to afford additional
flexibility to applicants for a CoC:
First, this proposed rule would eliminate the necessity for
repetitious reviews, during a Part 72 specific license hearing
(Sec. 72.46), of cask design issues that the Commission has previously
considered during approval of the cask design. The Commission
anticipates receipt of several applications, for specific ISFSI
licenses, that will propose using storage cask designs previously
approved by the NRC. Applicants for a specific license presently have
the authority under Sec. 72.18 to incorporate by reference into their
application, information contained in previous applications,
statements, or reports filed with the Commission, including information
from the Safety Analysis Report for a cask design previously approved
by the NRC under the provisions of Subpart L. The Commission believes
previously reviewed cask design issues should be excluded from the
scope of a license hearing. This is because the public had the right to
question the adequacy of the cask design, during the approval process
under Subpart L. The right of the public to comment on cask designs
would not be affected by this rulemaking. For new cask design issues,
this rulemaking would not limit the scope of staff's review of the
application or of license hearings. For example, a cask's previously
reviewed and approved thermal, criticality, and structural designs
could not be raised as issues in a hearing. However, design interface
issues between the approved cask design and specific site
characteristics (e.g., meteorological, seismological, radiological, and
hydrological) or changes to the cask's approved design may be raised as
issues at a potential hearing. In addition, the rights of the public to
petition the Commission under Sec. 2.206 to raise new safety issues on
the adequacy of the cask design would not be affected by this
rulemaking.
Second, the proposed rule would permit an applicant for approval of
a spent fuel storage cask design under Subpart L to begin fabrication
of casks before the NRC has approved the cask design and issued the
CoC. Currently, an applicant for a CoC is not permitted under
Sec. 72.234(c) to begin cask fabrication until after the CoC is issued.
Applicants for a specific license, and their contractors, are currently
allowed to begin fabrication of casks before the Commission issues
their license. However, general licensees and their contractors (i.e,
the certificate holder) are not allowed to begin fabrication before the
CoC is issued. Consequently, this proposed rule would eliminate NRC's
disparate treatment between general and specific licensees. In addition
to allowing an applicant for a CoC to begin fabrication of a cask prior
to issuance of the CoC, comments would be requested on the need for a
general licensee to also begin fabrication of a cask before the CoC is
issued. The Commission and the staff have
[[Page 59681]]
previously determined that exemptions from the fabrication prohibition
are authorized by law and do not endanger life or property, the common
defense, or security and are otherwise in the public interest. The
Commission anticipates that additional cask designs will be submitted
to the NRC for approval and expects that these designs will be similar
in nature to those cask designs that have already been approved. The
Commission also expects that exemption requests to permit fabrication
would also be received. Therefore, this rulemaking would eliminate the
need for such exemption requests.
This proposed rule would revise the quality assurance regulations
in Subpart G of Part 72 to require that an applicant for a CoC, who
voluntarily wishes to begin cask fabrication, must conduct cask
fabrication under an NRC-approved QA program. Currently, applicants for
a CoC are required by Sec. 72.234(b) to conduct design, fabrication,
testing, and maintenance activities under a QA program that meets the
requirements of Subpart G. Prior NRC approval of the applicant's QA
program is not required by Sec. 72.234(b). However, Sec. 72.234(c)
precludes cask fabrication until after the CoC is issued. The
Commission believes this proposed rule is a conditional relaxation to
permit fabrication before the CoC is issued. Since NRC staff would
approve the applicant's QA program as part of issuance of a CoC, staff
approval of the QA program prior to fabrication is a question of timing
(e.g., when the program is approved, as opposed to imposing a new
requirement for approval of a program). The Commission expects that any
financial or scheduler risks associated with fabrication of casks prior
to issuance of the CoC would be borne by the applicant. The Commission
believes that the proposed rule is not a backfit because Sec. 72.62
applies to licensees after the license is issued and does not apply to
applicants prior to issuance of the license or CoC. This rule would
require that a cask for which fabrication was initiated before issuance
of the CoC must conform to the issued CoC before it may be used.
This proposed rule would also require an applicant for a specific
license, who voluntarily wishes to begin fabrication of casks before
the license is issued, to conduct fabrication under an NRC-approved QA
program. Currently, an applicant for a specific license is required by
Sec. 72.140(c) to obtain NRC approval of its QA program before spent
fuel is loaded into the ISFSI. The Commission does not believe this
proposed rule would impose a separate requirement, rather it would
require different timing on when the QA program is approved.
This proposed rule would also revise Sec. 72.140(d) to allow a
licensee, applicant for a license, certificate holder, and applicant
for a CoC to use an existing Part 50, 71, or 72 QA program that was
previously approved by the NRC.
As a result of this proposed rule both licensees and certificate
holders will be required to accomplish any fabrication activities under
an NRC-approved QA program. The Commission believes this proposed
rule's increase in flexibility and change in timing of approval of a QA
program is not a backfit.
The Commission expects that any risks associated with fabrication
(e.g., rewelding, reinspection, or even abandonment of the cask) would
be borne by the applicant. In particular, the staff would require that
a cask, which was fabricated before the CoC was issued, must conform
with the issued CoC. Requiring an applicant to conform a fabricated
cask to the issued CoC would not be subject to the backfit review
provisions of Sec. 72.62.
Identification and Preliminary Analysis of Alternative Approaches to
the Problem
Option 1--Conduct a rulemaking that would address the
regulatory problems as described above.
First, this proposed rulemaking would specify the sections in Part
72 that apply to general licensees, specific licensees, and certificate
holders. This would eliminate the need to resolve on a case-by-case
basis questions on which Part 72 sections are applicable to those
activities. The proposed rule is administrative in nature and other
than the cost of rulemaking, would have no impact.
Second, this rulemaking would reduce the regulatory burden on
applicants, staff, and hearing board resources relating to any
Sec. 72.46 license hearings involving cask design issues associated
with an application for a specific license, where the cask design has
been previously approved by the NRC. Elimination of the need for
repetitious reviews of cask design issues and licensing hearings on
these same cask design issues together would save 1.0 FTE of applicant
effort and 1.0 FTE of staff effort for each license application
received. NRC expects to receive three applications in 1999 and six
applications each year in 2000 and 2001. While applicants for a license
are currently allowed to incorporate by reference information on cask
design information, this rulemaking would reduce applicant burden
associated with providing additional information on the cask design and
responding to hearing board contentions on issues which have been
previously reviewed.
Third, this rulemaking would also provide increased flexibility to
applicants for a CoC by allowing them to begin cask fabrication, before
the CoC is issued. This rulemaking would reduce the burden on
applicants for a CoC associated with submission of requests for
exemption from Sec. 72.234(c). Certificate holders have requested these
exemptions to take advantage of favorable business conditions (i.e.,
they want to begin fabrication of casks a soon as possible to meet
their contract obligations). Elimination of the need for submission and
review of exemption requests from the cask fabrication requirement of
Sec. 72.234(c) would save 0.1 FTE of applicant effort and 0.1 FTE of
staff effort, for each exemption request not received. Without this
action, NRC expects that two requests for exemption from Sec. 72.234(c)
would be received each year in 1999 and beyond. This rulemaking would
also eliminate the disparate treatment of general and specific
licensees under Part 72, with respect to fabrication of spent fuel
storage casks. This rulemaking would also reduce staff burden
associated with review of such exemption requests. Because a
certificate holder is currently required by Sec. 72.140(c)(3) to obtain
NRC approval of its QA program before commencing fabrication, and the
staff is currently required to review and approve such programs, no
increase in applicant burden or staff resources would occur with
respect to the proposed change to Sec. 72.140(c)(3). However, the
timing of the staff review and approval of the QA program would change.
The impact of this option consists primarily of a reduction in
regulatory burden on an applicant for a specific license, a reduction
in regulatory burden and increase in regulatory flexibility for an
applicant for a cask design, and a reduction in the expenditure of NRC
resources involved in reviewing applications for a specific license,
supporting license hearings, and reviewing requests for exemption from
Sec. 72.234(c). This option would result in the expenditure of NRC
resources to conduct this rulemaking.
Option 2--No action.
The benefit of the no action alternative is that NRC resources will
be conserved because no rulemaking would be conducted. The impact of
this alternative would be that the regulatory problems described above
would not be addressed. Instead, applicant and staff resources will
continue to be expended
[[Page 59682]]
on repetitious reviews of previously approved cask designs, conducting
licensing hearings on previously approved cask design issues, and
processing requests for exemption from Sec. 72.234(c), to allow
fabrication of casks.
Estimation and Evaluation of Values and Impacts
The clarification of which Part 72 sections apply to specific
licensees, applicants for a specific license, general licensees,
certificate holders, and applicants for a CoC alone would have no
impacts other than the cost of rulemaking, because this action is
administrative in nature.
The elimination of the need for repetitious reviews of cask design
issues, that were previously reviewed by the NRC, and elimination of
licensing hearings on these same cask design issues together would save
1.0 FTE of applicant effort and 1.0 FTE of staff effort for each
license application received. NRC expects to receive three applications
in 1999 and six applications each year in 2000 and 2001.
The elimination of the need for submission and review of exemption
requests from the cask fabrication requirement of Sec. 72.234(c) would
save 0.1 FTE of applicant effort and 0.1 FTE of staff effort, for each
exemption request not received. Without this action, NRC expects that
two requests for exemption from Sec. 72.234(c) would be received each
year in 1999 and beyond.
Presentation of Results
The recommended action is to adopt the first option because it will
set forth a clear regulatory base for Part 72 general licensees,
specific licensees, applicants for a specific license, certificate
holders, and applicants for a CoC.
The recommended action would eliminate the need for repetitious
license hearing adjudication of cask design issues that the Commission
has previously reviewed in approving the cask design, when an applicant
for a specific license has incorporated by reference a cask design that
has been approved by the Commission under the provisions of Subpart L.
This is because the public had the right to question the adequacy of
the cask design during the approval process under Subpart L. The right
of the public to comment on cask designs would not be affected by this
rulemaking. This rulemaking would not limit the scope of staff's review
of the application or license hearings for issues which were not
considered by the Commission during previous approval of the cask
design. In addition, the rights of the public to petition the
Commission under Sec. 2.206 to raise new safety issues on the adequacy
of the cask design would not be affected by this rulemaking. The
Commission considers rereview of cask design issues which have been
previously evaluated and dispositioned as an unnecessary regulatory
burden on applicants and an unnecessary expenditure of staff and
hearing board resources. For example, the cask's previously reviewed
and approved thermal, criticality, and structural designs could not be
raised as issues in a hearing. However, design interface issues between
the approved cask design and specific site characteristics (e.g.,
meteorological, seismological, radiological, and hydrological) or
changes to the cask's approved design may be raised as issues at a
potential hearing. Therefore, this action has no safety impact.
The recommended action would permit an applicant for approval of a
spent fuel storage cask design under Subpart L to begin fabrication of
casks before the NRC has approved the cask design and issued the CoC.
Currently, an applicant for a CoC is not permitted under Sec. 72.234(c)
to begin cask fabrication until after the CoC is issued. Applicants for
a specific license, and their contractors, are currently allowed to
begin fabrication of casks before the Commission issues their license.
However, general licensees and their contractors (i.e, the certificate
holder) are not allowed to begin fabrication before the CoC is issued.
Consequently, this proposed rule would eliminate NRC's disparate
treatment between general and specific licensees. In addition to
allowing an applicant for a CoC to begin fabrication of a cask prior to
issuance of the CoC, comments would be requested on the need for a
general licensee to also begin fabrication of a cask before the CoC is
issued. The Commission and the staff have previously determined that
exemptions from the fabrication prohibition are authorized by law and
do not endanger life or property, the common defense, or security and
are otherwise in the public interest. The Commission anticipates that
additional cask designs will be submitted to the NRC for approval and
expects that these designs will be similar in nature to those cask
designs that have already been approved. The Commission also expects
that exemption requests to permit fabrication would also be received.
Therefore, this rulemaking would eliminate the need for such exemption
requests.
This proposed rule would revise the quality assurance regulations
in Subpart G of Part 72 to require that an applicant for a CoC, who
voluntarily wishes to begin cask fabrication, must conduct cask
fabrication under an NRC-approved QA program. Currently, applicants for
a CoC are required by Sec. 72.234(b) to conduct design, fabrication,
testing, and maintenance activities under a QA program that meet the
requirements of Subpart G. Prior NRC approval of the applicant's QA
program is not required by Sec. 72.234(b). However, Sec. 72.234(c)
precludes cask fabrication until after the CoC is issued. The
Commission believes this proposed rule is a conditional relaxation to
permit fabrication before the CoC is issued. Since NRC staff would
approve the applicant's QA program as part of issuance of a CoC, staff
approval of the QA program prior to fabrication is a question of timing
(e.g., when the program is approved, as opposed to imposing a new
requirement for approval of a program). The Commission expects that any
financial or scheduler risks associated with fabrication of casks prior
to issuance of the CoC would be borne by the applicant. The Commission
believes that the proposed rule is not a backfit because Sec. 72.62
applies to licensees after the license is issued and does not apply to
applicants prior to issuance of the license or CoC. This rule would
require that a cask for which fabrication was initiated before issuance
of the CoC must conform to the issued CoC before it may be used.
This proposed rule would also require an applicant for a specific
license, who voluntarily wishes to begin fabrication of casks before
the license is issued, to conduct fabrication under an NRC-approved QA
program. Currently, an applicant for a specific license is required by
Sec. 72.140(c) to obtain NRC approval of its QA program before spent
fuel is loaded into the ISFSI. The Commission does not believe this
proposed rule would impose a separate requirement, rather it would
require different timing on when the QA program is approved.
This proposed rule would also revise Sec. 72.140(d) to allow a
licensee, applicant for a license, certificate holder, and applicant
for a CoC to use an existing Part 50, 71, or 72 QA program that was
previously approved by the NRC.
As a result of this proposed rule, both licensees and certificate
holders will be required to conduct any fabrication activities under an
NRC-approved QA program. The Commission believes this proposed rule's
increase in flexibility and change in timing of approval of a QA
program is not a backfit. Therefore, these actions have no safety
impact.
[[Page 59683]]
The Commission expects that any risks associated with fabrication
(e.g., rewelding, reinspection, or even abandonment of the cask) would
be borne by the applicant. In particular, the staff would require that
a cask, which was fabricated before the CoC was issued, must conform
with the issued CoC. Requiring an applicant to conform a fabricated
cask to the issued CoC would not be subject to the backfit review
provisions of Sec. 72.62.
The total cost of this rulemaking to the NRC is estimated at 1.9
FTE. The total savings to the NRC for this rulemaking is estimated at
16.5 FTE over a 3-year period (1999 through 2001). The total savings to
applicants is estimated at 15.0 FTE over the same 3-year period.
Therefore, this action would be considered cost beneficial to both NRC
and applicants, would reduce the burden on applicants, and would
improve the efficiency and effectiveness of the NRC. Consequently, the
Commission believes public confidence in the safe storage of spent fuel
at independent spent fuel storage installations would not be adversely
affected by this rulemaking.
Decision Rationale
The rationale is to proceed with this proposed rulemaking
implementing the Commission approved rulemaking plan. This rulemaking
would save both staff and applicant resources as discussed above.
The clarification of the provisions of Part 72 and their
application to general licensees, specific licensees, applicants for a
specific license, certificate holders, and applicants for a CoC is
administrative in nature and would have no safety impacts.
The elimination of the need for repetitious license hearings on
cask design issues, that the NRC has previously reviewed and approved,
in an application for a specific license would have no safety impacts.
The public's right to comment on cask design issues, through the
Subpart L cask approval process, will remain unchanged.
The flexibility to begin fabrication cask fabrication before the
NRC issues the CoC, when combined with the requirement that cask
fabrication must be performed under an NRC-approved QA program, would
have no safety impacts.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)),
the Commission certifies that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. This proposed rule would clearly specify which sections of
Part 72 apply to general licensees, specific licensees, applicants for
a specific license, certificate holders, and applicants for a
certificate and allow these persons to determine which Part 72
regulations apply to their activity. This clarification will eliminate
the ambiguity that now exists. This proposed rule would also eliminate
the need for repetitious license-hearing reviews of cask design issues,
that were previously reviewed and approved by the NRC, when the
applicant for a specific license incorporates by reference information
on a cask design that was previously approved by the NRC. Finally, this
proposed rule would allow applicants for a CoC to begin fabrication of
a cask design before the NRC has issued a CoC. Applicants desiring to
begin fabrication shall use an NRC-approval QA program. The requirement
to obtain NRC-approval of the applicant's QA program is not considered
an additional burden. An applicant who has been issued a CoC, and is
then considered a certificate holder, is currently required by
Sec. 72.140(c)(2) to obtain NRC-approval before fabrication or testing
is commenced; consequently, no actual increase in burden occurs.
Similarly, an applicant for a license is currently required to obtain
NRC-approval prior to receipt of spent fuel or high-level waste;
consequently, no actual increase in burden occurs. This proposed rule
does not impose any additional obligations on entities that may fall
within the definition of ``small entities'' as set forth in Section
601(6) of the Regulatory Flexibility Act; or within the definition of
``small business'' as found in Section 3 of the Small Business Act, 15
U.S.C. 632; or within the size standards adopted by the NRC on April
11, 1985 (60 FR 18344).
Backfit Analysis
The NRC has determined that the backfit rule, Sec. 72.62, does not
apply to this proposed rule. Because these amendments would not involve
any provisions that would impose backfits as defined in Sec. 72.62(a),
a backfit analysis is not required.
List of Subjects in 10 CFR Part 72
Criminal penalties, Manpower training programs, Nuclear materials,
Occupational safety and health, Reporting and recordkeeping
requirements, Security measures, Spent fuel.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to
adopt the following amendments to 10 CFR Part 72.
PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE
1. The authority citation for Part 72 continues to read as follows:
Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183,
184, 186, 187, 189, 68 Stat. 929, 930, 932, 934, 935, 948, 953, 954,
955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071,
2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234,
2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as
amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat.
1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L.
95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec.
7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133, 135, 137, 141, Pub.
L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-
203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155,
10157, 10161, 10168).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d),
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b),
10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat.
955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42
U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub.
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101,
10137(a), 10161(h)). Subparts K and L are also issued under sec.
133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252
(42 U.S.C. 10198).
2. Section 72.13 is added to Subpart A to read as follows:
Sec. 72.13 Applicability.
(a) This section identifies those sections, under this part, that
apply to the activities associated with a specific license, a general
license, or a certificate of compliance.
(b) The following sections apply to activities associated with a
specific license: Secs. 72.1; 72.2(a) through (e); 72.3 through
72.13(b); 72.16 through 72.34; 72.40 through 72.62; 72.70 through
72.86; 72.90 through 72.108; 72.120 through 72.130; 72.140 through
72.176; 72.180 through 72.186; 72.190 through 72.194; and 72.200
through 72.206.
(c) The following sections apply to activities associated with a
general license: Secs. 72.1; 72.2(a)(1), (b), (c), and (e); 72.3
through 72.6(c)(1); 72.7 through 72.13(a) and (c); 72.30(c) and (d);
72.32(c) and 72.32(d); 72.44(b), (d), (e),
[[Page 59684]]
and (f); 72.48; 72.50(a); 72.52; 72.54(d) through (m); 72.60; 72.62;
72.72 through 72.80(f); 72.82 through 72.86; 72.104; 72.106; 72.122;
72.124; 72.126; 72.140 through 72.176; 72.190 through 72.194; 72.210;
72.212; and 72.216 through 72.220.
(d) The following sections apply to activities associated with a
certificate of compliance: Secs. 72.1; 72.2(e) and (f); 72.3; 72.4;
72.5; 72.7; 72.9 through 72.13(a) and (d); 72.48; 72.84(a); 72.86;
72.124; 72.140 through 72.176; 72.214; and 72.230 through 72.248.
3. In Sec. 72.46, paragraph (e) is added to read as follows:
Sec. 72.46 Public hearings.
* * * * *
(e) If an application for (or an amendment to) a specific license
issued under this part incorporates by reference information on the
design of an NRC-approved spent fuel storage cask, the scope of any
public hearing held to consider the application will not include any
cask design issues previously addressed by the Commission when it
issued a Certificate of Compliance under subpart L of this part.
4. In Sec. 72.86, paragraph (b) is revised to read as follows:
Sec. 72.86 Criminal penalties.
* * * * *
(b) The regulations in part 72 that are not issued under sections
161b, 161i, or 161o for the purposes of section 223 are as follows:
Secs. 72.1, 72.2, 72.3, 72.4, 72.5, 72.7, 72.8, 72.9, 72.13, 72.16,
72.18, 72.20, 72.22, 72.24, 72.26, 72.28, 72.32, 72.34, 72.40, 72.46,
72.56, 72.58, 72.60, 72.62, 72.84, 72.86, 72.90, 72.96, 72.108, 72.120,
72.122, 72.124, 72.126, 72.128, 72.130, 72.182, 72.194, 72.200, 72.202,
72.204, 72.206, 72.210, 72.214, 72.220, 72.230, 72.238, and 72.240.
5. In Sec. 72.140, paragraphs (c) and (d) are revised to read as
follows:
Sec. 72.140 Quality assurance requirements.
* * * * *
(c) Approval of program:
(1) Each licensee, applicant for a license, certificate holder, or
applicant for a CoC shall file a description of its quality assurance
program, including a discussion of which requirements of this subpart
are applicable and how they will be satisfied, in accordance with
Sec. 72.4.
(2) Each licensee shall obtain Commission approval of its quality
assurance program prior to receipt of spent fuel at the ISFSI or spent
fuel and high-level radioactive waste at the MRS. Each licensee or
applicant for a specific license shall obtain Commission approval of
its quality assurance program prior to commencing fabrication or
testing of a spent fuel storage cask.
(3) Each certificate holder or applicant for a CoC shall obtain
Commission approval of its quality assurance program prior to
commencing fabrication or testing of a spent fuel storage cask.
(d) Previously approved programs. A quality assurance program
previously approved by the Commission as satisfying the requirements of
appendix B to part 50 of this chapter, subpart H to part 71 of this
chapter, or subpart G to this part will be accepted as satisfying the
requirements of paragraph (b) of this section, except that a licensee,
applicant for a license, certificate holder, and applicant for a CoC
who is using an appendix B or subpart H quality assurance program shall
also meet the recordkeeping requirements of Sec. 72.174. In filing the
description of the quality assurance program required by paragraph (c)
of this section, each licensee, applicant for a license, certificate
holder, and applicant for a CoC shall notify the NRC, in accordance
with Sec. 72.4, of its intent to apply its previously approved quality
assurance program to ISFSI activities or spent fuel storage cask
activities. The notification shall identify the previously approved
quality assurance program by date of submittal to the Commission,
docket number, and date of Commission approval.
6. In Sec. 72.234, paragraph (c) is revised to read as follows:
Sec. 72.234 Conditions of approval.
* * * * *
(c) An applicant for a CoC may begin fabrication of spent fuel
storage casks before the Commission issues a CoC for the cask; however,
applicants who begin fabrication of casks without a CoC do so at their
own risk. A cask fabricated before the CoC is issued shall be made to
conform to the issued CoC prior to being placed in service or prior to
spent fuel being loaded.
* * * * *
7. Section 72.236 is amended by revising the introductory text to
read as follows:
Sec. 72.236 Specific requirements for spent fuel storage cask approval
and fabrication.
The certificate holder and applicant for a CoC shall ensure that
the requirements of this section are met.
* * * * *
Dated at Rockville, Maryland, this 26th day of October, 1999.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-28594 Filed 11-2-99; 8:45 am]
BILLING CODE 7590-01-p
