# Certification of Gaseous Diffusion Plants; Final Rule NUCLEAR REGULATORY COMMISSION

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-23329

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** September 23, 1994

## Text

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to add a new part that includes the requirements for
certification of uranium enrichment activities of the United States
Enrichment Corporation (the Corporation) in its operation of the two
gaseous diffusion plants that the Corporation is leasing from the U.S.
Department of Energy (DOE). These two plants are known as the
Portsmouth Plant and the Paducah Plant, located at Piketon, Ohio, and
Paducah, Kentucky, respectively. These regulations are being
promulgated to establish standards for the protection of the public
health and safety from radiological hazards and provide for the common
defense and security, including adequate safeguards. A number of
conforming amendments are also being made to other NRC regulations. In
addition, appendix A to part 95 is being removed, since this material
is now available in a separate publication.

EFFECTIVE DATE: October 24, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. C.W. Nilsen, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555, telephone (301) 415-6209; Mr. C.B. Sawyer, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, telephone (301) 415-8174; or Mr. J.K. Everly,
Office of Administration, Division of Security, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, telephone (301) 415-7048.

SUPPLEMENTARY INFORMATION:

Background

The President signed H.R. 776, the ``Energy Policy Act of 1992''
(the Act), into law on October 24, 1992. The Act amended the Atomic
Energy Act of 1954 (AEA), to establish a new Government Corporation,
the U.S. Enrichment Corporation (the Corporation), for the purpose of
managing and operating the uranium enrichment enterprise owned and
previously operated by the Department of Energy (DOE). Section 1701 of
the AEA, as amended, provides that within 2 years after enactment of
the legislation, the NRC is to promulgate standards that will apply to
the two operating gaseous diffusion plants to protect the public health
and safety from radiological hazards, and to provide for the common
defense and security.
Section 1701(b)(2) of the AEA, as amended, directs the NRC to
establish a certification process under which the two gaseous diffusion
plants at Piketon, Ohio, and Paducah, Kentucky, to be operated by the
Corporation, will be certified annually by the NRC for compliance with
those standards.
On February 11, 1994 (59 FR 6792), the Commission published a
proposed new part 76 in the Federal Register for comment establishing
requirements and procedures for the certification process by addition
of this new part to chapter I of title 10 of the Code of Federal
Regulations. In addition to the new part, a number of conforming
changes to the provisions of Chapter I of Title 10 of the Code of
Federal Regulations were also proposed which are necessary to implement
the new part. The comment period expired on April 12, 1994.
The new 10 CFR part 76 is based upon comparable NRC requirements
that have been in place for a number of years. The NRC believes these
requirements are adequate and appropriate for the gaseous diffusion
plants. The NRC will assume regulatory oversight authority after it
completes the first certification process in late 1995.

Summary of Requirements and Analysis of Public Comments

The Nuclear Regulatory Commission is amending its regulations to
add a new 10 CFR part 76 entitled, ``Certification of Gaseous Diffusion
Plants.'' This new part includes procedural requirements, generally
applicable NRC health and safety standards, technical safety
requirements, and safeguards and security requirements specific to the
gaseous diffusion plants. The Commission will use the requirements
included in this new 10 CFR part 76 to satisfy Energy Policy Act
requirements. The certification requirements in this rulemaking include
actions that are either required by the Act or required by the
Commission's procedures to protect the public health and safety from
radiological hazards, to provide for the common defense and security,
and to ensure adequate safeguards. Because this action does not
constitute a licensing action, many of the processes associated with
issuance of a license do not apply in this certification action.
Twenty comment letters were received on the proposed rule and are
available for public inspection, and copying for a fee, at the
Commission's Public Document Room located at 2120 L Street, NW. (Lower
Level), Washington, DC. The comments on the proposed rule came from a
variety of sources that included the Corporation, the Department of
Energy, citizens' groups, industry representatives, other Government
agencies, and legal firms. The comments and their resolutions are
discussed below and, to the extent possible, are arranged under the
identified section of the rule to which they are related.

A. General Requirements

The general requirements are based on and mainly derived from 10
CFR Part 70. Part 70 contains the requirements used by the Commission
to license the possession and use of special nuclear material at major
fuel cycle facilities for which the NRC has regulatory responsibility
for protecting public health and safety and the common defense and
security. Specific sections in this new part, which are based on 10 CFR
Part 70 as modified for the certification process, include the
following:
Section 76.1 Purpose. This section defines the purpose of 10 CFR
part 76 to be limited to certification of the existing 40-year-old
gaseous diffusion plants previously operated by the DOE.
A comment was received indicating that reference made to ``life of
the plant'' should be changed to ``duration of lease.'' The final
regulation has been so changed.
Section 76.2 Scope. This section defines the scope of part 76 to
cover the operation of gaseous diffusion plants previously operated by
DOE and now leased to the Corporation, and clarifies that the new part
applies only to those plants.
Comments were received indicating that the rules should be
clarified as only applying to operation of those portions of the
diffusion plants leased to the Corporation. The appropriate changes to
the rule have been made.
Section 76.4 Definitions. This section contains definitions of
terms used in this part.
In response to comments received, several definitions have been
added to, or revised in the final rule as follows:
Corporation. In response to a comment by the Corporation, the NRC
agrees that the definition should be clarified to show the continued
applicability of Part 76 to the operation of the gaseous diffusion
plants after privatization of the Corporation if privatization were to
occur.
Alert and Site area emergency. Definitions are added for
consistency with other regulations.
Radioactive material. Added as requested for clarification.
Unreviewed safety question. This definition was suggested by DOE,
and was added in response to comments by DOE and the Corporation, to
clarify its use in Sec. 76.68 as one factor in limiting changes that
the Corporation can make without prior Commission approval.
Section 76.5 Communications. This section describes requirements
for verbal and written submissions to the Commission.
No comments were received on this section.
Section 76.6 Interpretations. This section contains requirements
for interpretations of these regulations that are authorized by the
Commission.
No comments were received on this section.
Section 76.7 Employee protection. This section specifies
activities that are protected and prohibits discrimination against an
employee for engaging in protected activities.
Comments were received concerning the transition from operation
under DOE orders to operation under NRC regulations. Specifically, it
was suggested that various requirements for posting of NRC regulations
and forms be delayed in some cases until after the NRC has taken action
on the application. This section and Sec. 76.60 have been modified to
provide additional flexibility in the posting of notices by requiring
posting not later than the date of the Director's initial decision on
certification.
One commenter recommended that the final rule include a reference
to activities protected by the National Labor Relations Act. The labor
standards and/or statutes applicable to the Corporation are specified
in section 1312(d) of the AEA. No further delineation of those
standards and/or statutes is necessary for inclusion in NRC's
certification regulations.
A comment was received expressing a perceived lack of willingness
of the NRC to solicit comments from organizations that represent the
plant workers. This rulemaking has been done under full public
participation as required by NRC procedures within the time limits
imposed by the legislation for transferring operation of the facilities
to the Corporation. The certification procedure provides an opportunity
for public participation at all stages of the process through written
comments and participation in public meetings to be held near the
sites.
Section 76.8 Information collection requirements: OMB approval not
required. This section indicates that the information collection
requirements contained in this part need not be reviewed and approved
by the Office of Management and Budget in accordance with the Paperwork
Reduction Act.
No comments were received on this section.
Section 76.9 Completeness and accuracy of information. This
section specifies that all information provided to the NRC must be
complete and accurate.
No comments were received on this section.
Section 76.10 Deliberate misconduct. This section describes
prohibited activities and states that violations are subject to
enforcement action.
No comments were received on this section.
Section 76.23 Specific exemptions. This section specifies that the
Commission may grant exemptions from the requirements in part 76
provided certain conditions are met.
A comment was received from the Corporation recommending that the
rule be expanded to provide that the Commission may grant exemptions
where certain ``special circumstances'' exist due to the ``unique
status'' of the Corporation. The special circumstances presented
included a request by the Corporation or DOE that an exemption would be
in the furtherance of the common defense and security of the United
States, the nonproliferation of atomic weapons, or any of the other
important governmental functions identified in the statutory purposes
for the Corporation set forth in Section 1202 of the AEA. As proposed,
Sec. 76.23 already provides that NRC may grant exemptions and
specifically includes consistency with the common defense and security
of the United States as a prerequisite for granting an exemption. The
NRC does not conclude that the Corporation's ``unique status''
introduces any additional considerations in considering requests for
exemptions not already within the purview of Sec. 76.23.
Section 76.65 Inalienability of certificates. This section sets
forth the conditions for transfer of certification.
Comments were received that the proposed rule should address
inalienability of certificates. This section has been added to the
final rule.
Section 76.76 Backfitting. This section sets forth the conditions
for requiring backfitting of the plants and establishes backfit
guidelines. Backfitting is defined as any NRC-required modification or
addition to systems, structures, or components of the facility, or
procedures or organizations used to operate the facility.
Commissioner Rogers was particularly interested in comments on two
issues regarding the provisions of this section: (1) Whether the
provisions of Sec. 76.76 should become effective immediately when 10
CFR part 76 becomes final, as would happen were the proposed section to
remain unchanged, or whether there should be some interim period before
these provisions become effective (e.g., until completion of the first
annual certification following initial certification) and; (2) Whether
the standard for requiring a backfit should be that of
Sec. 76.76(a)(3), ``* * * a substantial increase in the overall
protection of the public health and safety or the common defense and
security * * *'' or the less stringent standard of cost-effectiveness
that is contained in section 1(b)(6) of Executive Order 12866 of
September 30, 1993, ``* * * a reasoned determination that the benefits
of the intended regulation justify its costs.''
A number of commenters agreed that the provisions of Sec. 76.76
should be made effective when the rule becomes final. There were no
comments received in support of a delay in the implementation of the
backfit provisions. However, the Ohio Citizens for Responsible Energy
opposed the application of the proposed backfit requirements to these
facilities. They commented that: (1) Operations have not been trouble-
free and environmentally benign, (2) the NRC has no previous experience
with these plants, (3) the backfit rule would essentially ``freeze''
the plant design and operational practices, and (4) the NRC must be
free to demand changes in the design and operation of these plants.
They further commented that if the NRC establishes any backfit standard
it should be the standard of Executive Order 12886: ``a reasoned''
determination that the benefits of the intended regulation ``justify
its costs.''
The Corporation, DOE, and the Nuclear Energy Institute agreed with
incorporation of the backfit provisions as written. The Corporation
specifically supported the rewrite of 10 CFR 50.109, as proposed, as
being consistent with NRC practice.
In response to the comment suggesting that the proposed backfit
provisions would prevent the Commission from taking action as is
required to protect public health and safety, the Commission does not
apply backfit provisions in a manner which would inhibit imposition of
requirements necessary to achieve an adequate level of safety. Under
the backfit requirements in the final rule, costs are considered only
for determining the need to impose requirements that provide for
enhanced levels of safety that go beyond those basic requirements
needed to provide adequate protection of the public health and safety.
The final rule requires a cost benefit analysis for any new
requirement or NRC staff position unless the modification is required
to bring the facility into compliance with written rules or orders, or
into conformance with written commitments by the Corporation, or if the
change is necessary to ensure that the facility provides adequate
protection of the public health and safety. The final rule is
unchanged.
Section 76.81 Authorized use of radioactive material. The section
sets forth requirements for the Corporation's possession and use of
radioactive material.
The Corporation commented that it wants language in the regulations
which would authorize it to receive, possess, own, acquire possession
of, and use radioactive materials in places and for purposes not
covered by the certificate, if otherwise authorized by law. Such
authorization would not be part of certification and would involve
approval by other Federal agencies. This comment goes beyond NRC's
authority with respect to certification of the gaseous diffusion
facilities. To the extent that the Corporation wants NRC to approve
activities associated with radioactive materials involving other
locations and other activities, other locations and activities are not
included in the certification authority contained in the AEA, as
amended by the Energy Policy Act. The final rule has been revised to
make clear that to the extent the Corporation engages in activities not
covered by the certification process, it may do so as long as it
complies with all applicable State and Federal regulations.
Section 76.83 Transfer of radioactive material. This section
contains requirements for the Corporation's transfer of radioactive
material.
DOE recommended that the provision of Sec. 76.83(d)(3) concerning
emergency shipments be deleted as they are not defined and continued
implementation of current DOE practices provides methods for shipment
of material outside the normal process. This comment was not adopted
and the section was retained to provide the flexibility for such
transfers under NRC certification in the event it would be needed and
is not inconsistent with current NRC practices.
Section 76.89 Criticality accident requirements. This section
contains monitoring requirements for criticality accidents.
Commenters requested that Sec. 76.89 be revised to specifically
state that certain areas do not require criticality alarms: (1) Areas
containing less than 700 grams of U-235 contained in uranium of any
enrichment, (2) areas containing less than 1500 grams of U-235
contained in uranium enriched up to 4%, (3) areas containing less than
1400 grams of U-235 contained in uranium enriched up to 5%, (4) areas
where special nuclear material is packaged and stored in approved
containers and in isolated arrays in compliance with 10 CFR part 71,
and (5) process buildings containing homogeneous uranium material
enriched to less than 1%. The NRC does not intend to require monitoring
for areas where quantities of enriched uranium are controlled so that a
criticality accident is not credible. Rather than attempting to specify
quantity limits, the rule was modified to include a generic provision
such that criticality alarms will not be required for such controlled
areas.
Section 76.91 Emergency planning. This section contains emergency
planning requirements.
Some commenters agreed with the emergency planning provisions as
proposed. Others recommended that the emergency planning provisions be
revised. A commenter's proposed changes were to (1) add a ``general
emergency'' category to the classification of accidents, (2) give
annual briefings and tours to fire, police, medical, and other
emergency personnel, (3) conduct annual drills in addition to the
proposed annual exercises, and (4) add separate sections to emergency
planning documents that address the emergency operations center and
public notification of basic emergency planning and information in
emergency planning zones. A commenter also suggested that the proposed
language would permit individuals to evaluate their own performance in
the required biennial exercise, rather than have an independent and
impartial evaluation.
The emergency planning provisions in 10 CFR part 76 are essentially
those of 10 CFR part 70. Adoption of these comments would result in
emergency planning requirements similar to those in place at nuclear
power plants. The nature of the postulated accidents that are
considered in emergency planning for nuclear power plants would be
substantially different from those that would be involved in emergency
planning for the gaseous diffusion plants. The regulatory analysis for
the emergency preparedness requirements contained in Part 70 evaluated
the risks associated with the release of UF6 and concluded that
offsite emergency preparedness should be based on chemical toxicity
from a large UF6 release. The current part 70 requirements are
considered adequate for these facilities, therefore, these additional
measures were not adopted.
One commenter concluded that Sec. 76.91, ``Emergency Planning,''
does not provide for any offsite emergency planning except for a
minimal notification procedure to offsite response organizations and a
request for offsite assistance, and that this omission implies that no
offsite consequences will occur. Actually, the rule requires
considerable coordination with offsite organizations, including
offering opportunities for orientations and participation in exercises.
Although there is a small risk of an incident which may require an
offsite response, the NRC believes the nature of these incidents is
such that State and local governments can be expected to respond in an
adequate manner whether or not there are any formal written emergency
plans for offsite releases.
Section 76.120 Reporting requirements. This section contains
requirements for 1-hour notification, 4-hour notification, 24-hour
notification, and for preparation and submission of reports.
One commenter recommended deletion of ``general emergency'' to make
the language of the requirement consistent with that of Sec. 76.91(c).
Because there was no intent of including a general emergency class,
this correction was made.
Another commenter recommended changing ``or'' to ``and'' between
paragraphs (c)(1)(ii) and (iii), and between paragraphs (c)(2)(ii) and
(iii). This change was adopted as being the intent of the proposed rule
and to be consistent with 10 CFR parts 30, 40, and 70.
One commenter recommended changing the language in
Sec. 76.120(c)(1)(iii) from ``to decay to a level that would allow
decontamination'' to ``to decay prior to decontamination.'' This change
was adopted for consistency with part 70.
The Corporation suggested that Sec. 76.120(c)(2) could be changed
to provide that the failure of equipment required by an operational
safety requirement to perform certain functions should be reported to
the NRC. The NRC agrees with the intent of the suggestion but will use
the technical safety requirement for consistency of terminology. The
appropriate changes have been made to the final regulation. The comment
also recommended deletion of the requirement for reporting equipment
failure in the case of equipment required to restore the facility to a
preestablished safe condition. This suggestion was not adopted. The
requirement is needed to ensure that the NRC is aware of instances when
facility safety during shutdown and restart could be threatened.
The Corporation suggested a modification to Sec. 76.120(c)(3) to
reflect that both GDPs have onsite medical facilities that negate the
need for reporting radioactive contamination of personnel. This
suggestion was not adopted. The purpose of the requirement is to make
the NRC aware of any event in which a worker needs medical attention,
either onsite or offsite, due to radiological contamination.
The Corporation suggested the deletion of the record or log
requirement in Sec. 76.120(d). The NRC maintains telephone event report
logs in its database system and written reports submitted on emergency
actions carried out in response to an emergency plan activation. There
is no health and safety benefit to be gained by the Corporation
maintaining an additional log for two years after an event. Therefore,
the final regulation has been changed as suggested.
One commenter suggested that the proposed verbal and written
reporting requirements should be modified to be consistent with the
current part 70 requirements and that the same language should be used.
This suggestion was not adopted. The proposed new language only
clarifies what is already required by the current wording of 10 CFR
20.2201, 20.2202, 70.50, and 70.52.
Section 76.121 Inspections. This section states that the
Corporation shall afford the Commission opportunity for inspection and
that office space for Commission inspection personnel must be provided.
No comments were received on this section.
Section 76.131 Violations. This section specifies actions the
Commission may take to prevent a violation, such as obtaining a court
order, and contains civil penalty provisions.
A commenter asserted that the proposed rules do not include
enforcement provisions. The post issuance provisions in Sec. 76.70
pertain to revocation, suspension, or amendment for cause. Revocation
of a certificate or approved compliance plan would be an extremely
severe sanction and, quite arguably, the most severe possible sanction
for the Corporation. In addition, Sec. 76.60 makes 10 CFR Part 21
(Reporting of Defects and Noncompliance) applicable to the gaseous
diffusion plants, and Sec. 76.22(d) includes provision for civil
penalties for violations of 10 CFR part 21. Section 76.131 pertains to
violations and provides for the Commission to seek an injunction or
other court order to prevent a violation of the regulations and to seek
an order for payment of a civil penalty for violation of Section 206 of
the Energy Reorganization Act of 1974 (relating to reporting of defects
and noncompliance). The commenter also indicated difficulty in
determining what criminal penalties apply when examining Sec. 76.133
and the citations therein. Section 76.133(b) identifies those sections
of part 76 for which criminal penalties do not apply. As set forth in
Section 223 of the AEA, as amended, the general penalty for such
violation, upon conviction, is punishment ``by a fine of not more than
$5,000 or by imprisonment for not more than two years, or both.'' The
rule was not changed.
Section 76.133 Criminal penalties. This section specifies criminal
sanctions for violations. For purposes of section 223 of the AEA which
provides for criminal sanctions, the regulations in 10 CFR part 76 for
which criminal penalties apply are issued under sections 161b, or 161i.
The sections for which criminal penalties do not apply are listed in
Sec. 76.133(b).
The Corporation agreed that criminal sanctions could be imposed for
violations of part 76 regulations issued under sections 161b or 161o of
the AEA because these sections give the Commission authority to issue
regulations to govern the possession and use of special nuclear
material. However, the Corporation indicated that part 76 regulations
could not be issued under section 161o of the AEA, and therefore,
section 161o should be removed as a potential basis for criminal
sanctions under Sec. 76.133 and other NRC regulations (e.g., 10 CFR
19.40) made applicable to the Corporation. The Corporation reasoned
that the activities regulated in part 76 do not constitute licensed or
other activity within the scope of 161o.
The Commission agrees that 161o of the AEA applies to licensed and
other activities that are not the subjects of the regulations in part
76. Therefore, Sec. 76.133 has been revised by deleting section 161o as
an authority for the issuance of regulations in part 76 and imposition
of criminal sanctions under section 223 of the AEA. The Commission does
not believe that it is necessary to revise the ``Criminal Penalties''
sections of other parts that apply to the Corporation because the
references to 161o as one of the non-exclusionary bases for issuance of
regulations in the other parts also apply to actions of licensees and
other persons engaged in activities within the scope of 161o.

B. Procedural Requirements

As directed by section 1701(c) of the AEA, as amended, the rule
contains procedures for the annual certification process. Apart from
requiring an annual application for a certificate of compliance and a
determination by the Commission, in consultation with EPA, of
compliance with the NRC's standards, the legislation does not specify
procedures for the certification process. In addition, the amendments
to the AEA provide that the requirement for a certificate of compliance
is in lieu of any requirement for a license. Thus, the NRC has
substantial discretion in determining appropriate procedures for the
certification process. By providing for public notice and a written
comment period with respect to an application for a certificate of
compliance, as well as the opportunity for the Corporation and other
interested parties to petition the Commission for review of the
decision to grant or deny a certificate or request for approval of a
compliance plan, the Commission believes that it is adopting a fair and
efficient certification process/procedure.
The procedural requirements for the certification process to
implement provisions of the Act and to constitute the Commission's
certification process include:
Section 76.21 Certificate required. This section contains the
requirement that the gaseous diffusion plants may not be operated
without a certificate of compliance or an approved compliance plan.
A comment was received concerning operation of the GDPs between the
time the NRC issues the standards and issues a certificate or approves
a compliance plan. The Corporation's authority to continue to operate
the GDPs under DOE oversight after part 76 becomes effective, but
before the NRC completes the initial certification process, has been
clarified.
A commenter stated the belief that the Corporation should not be
able to operate the facilities without a certificate of compliance.
This view appears to be based on a misunderstanding of the AEA. Section
1403 of the AEA requires that the Corporation lease the facilities for
a period of 6 years, which commenced on July 1, 1993 (see also section
1314(e)), but section 1701 also gave the NRC 2 years from October 24,
1992, for establishment of standards under which the NRC would then
determine whether to certify compliance with the standards. During the
interim period, DOE has oversight responsibility for the GDPs until the
NRC establishes its standards and completes the first certification
process.
In response to another comment, the rule has been revised to permit
receipt of radioactive material under either a certificate or an
approved compliance plan.
Section 76.31 Annual application requirement. This section
specifies the date by which the annual application must be filed. The
initial certification would be based on review of an application
submitted by the Corporation. The initial application would contain a
complete description of operations, a safety analysis, and other
information required to demonstrate compliance with NRC requirements.
Subsequent applications could reference previously submitted
information. For annual reviews after the initial certification, the
Commission would focus on new information and changes from the previous
year and public comments. The Commission anticipates that it will
perform a complete review, similar to that performed for the initial
certification, every 10 years.
The footnote concerning the date for submission of the initial
application has been changed in response to a comment from the
Corporation to provide at least 6 months for submission of the initial
application after the rule becomes effective.
Section 76.33 Application procedures. This section contains filing
requirements and specifies the required contents of the application.The
rule requires any application which contains restricted data,
classified national security information, unclassified controlled
nuclear information, safeguards information, or proprietary or other
withholdable data to be prepared in such a manner that all such
information or data are separated from the information to be made
available to the public.
The Corporation stated that the word ``identifiable,'' used in
Sec. 76.33(c)(2) to describe areas of noncompliance, was unclear and
should be revised to be ``identified'' as stated in other NRC
regulations (e.g., 10 CFR 21.1 and 70.9(b)). They indicated that it is
not clear how the NRC would determine whether a particular
noncompliance to be addressed in a compliance plan was
``identifiable.'' The NRC agrees that this word is ambiguous, and it
has been changed to ``identified'' in the final rule as stated in 10
CFR 20.1 and 70.9(b).
Several comments were received concerning the environmental aspects
of the certification process and existing environmental conditions at
the facilities including the presence of contamination due to
transuranics and their daughters. The Department of Energy prepared an
Environmental Impact Statement for the Portsmouth gaseous diffusion
plant in 1977 and an Environmental Assessment of the Paducah facility
in 1982. The NRC has reviewed those documents, as well as environmental
reports prepared by DOE for both facilities in 1992 and environmental
audits prepared by DOE prior to turning operation of the Facilities
over to the Corporation in 1993. The NRC also conducted extensive site
visits. No significant differences in operations, previously evaluated
by DOE, were identified that would result in current operations having
significantly different environmental effects than those already
evaluated in DOE's environmental reviews. In addition, any known
quantities of transuranics or their daughters at facilities under the
NRC regulatory certification process most likely came from the
processing of recycled uranium in the past. The Corporation will be
required to provide for adequate protection of public health and safety
as a result of operations at the leased facilities, including releases
of effluents to the environment as specified in Sec. 76.60(d) that is
based on the regulations in 10 CFR part 20. As established by the Act,
the NRC will issue a certificate only for the current operations of the
facility and will not evaluate preexisting conditions. All preexisting
conditions are outside of NRC authority. In consideration of this
limited authority, this section was changed to only require submittal
of additional information that deviates from DOE-published
environmental documents for these facilities. Also, in this regard, the
Act requires the Director, as specified in Sec. 76.53, to consult with
the Environmental Protection Agency (EPA) on applications for
certification.
The NRC has reviewed comments concerning decommissioning and
existing site environmental contamination. The NRC is currently working
with the EPA in establishing standards for the decommissioning of
nuclear facilities. These EPA standards will be applied in the
decommissioning of these plants.
Several commenters responded to the requirement concerning
separation of certain material, such as classified or proprietary
material, from the information to be made available to the public. This
requirement conforms to other NRC regulations on the separation of
submitted information. The special handling of the specified material
is required to protect information that could be detrimental to
national or facility security and the Corporation's business. In
appropriate cases, the Commission has procedures to permit access to
the material for individuals who have been properly cleared and are
bound by law to protect the information.
The Corporation suggested that the proposed rule be modified in
several places to state that the Corporation need not describe
procedures for special nuclear material where the function is the
responsibility of DOE. The NRC recognizes that the Corporation will not
control all activities at the enrichment plant sites, and that DOE will
continue to conduct certain activities involving enriched uranium at
sites which are outside of NRC jurisdiction. Any interaction between
DOE and the Corporation-leased facilities will be carefully monitored
by NRC to assure that safety and safeguards requirements are met by the
Corporation. However, the suggested rule changes were not adopted
because it is inappropriate for the rule to attempt to address DOE
activities which fall outside NRC jurisdiction.
Also, in response to a comment, the final rule requires more
detailed information about the Corporation's management structure
similar to that required by part 70.
Section 76.36 Annual renewal. The Corporation requested a change
in format regarding contents of applications for the purpose of
increased clarity regarding the precise scope of the initial
application and of renewal applications. Included in the proposed
restructuring was revision of proposed Sec. 76.35 pertaining to
contents of applications so as to limit its scope to the contents of
the initial application. The Corporation also recommended the addition
of a new Sec. 76.36 so as to set forth the precise content of the
annual resubmittal.
The NRC agrees that revisions to specifically address the renewal
procedures would add clarity to the prescribed content of the initial
and renewal applications. As a result, the final rule adds a new
Section 76.36 to address required contents for annual renewal
applications and identifies the information that must be submitted for
annual review following the initial certification action. This new
section clarifies and confirms that the Corporation may, as part of its
application for renewal, either submit the information specified in
Sec. 76.35 pertaining to the initial application or rely upon the
application(s) upon which the existing certificate is based and
identify any pertinent changes or proposed changes as specified in
Sec. 76.36(c)(2). The provision permitting incorporation of previous
submissions by clear and specific reference has been moved from
proposed Sec. 76.33(f) to Sec. 76.36(b).
Section 76.37 Federal Register notice. This section describes the
public notice on a filing of an application, provides an opportunity
for public comment, and indicates the date of any public meeting.
Ohio Citizens for Responsible Energy (OCRE) requested that the
Commission provide at least an 80-day period for public comment on the
initial application for a certificate and for complete review of
renewal applications that is intended every 10 years. OCRE views the
proposed 30-day period as too brief for learning through publication in
the Federal Register of the filing of an application and to respond to
such a complex matter.
Another commenter, the Central Mid-West Interstate Low-Level
Radioactive Waste Commission, recommended that the Commission provide
for at least a 60-day period for public comment on an application for
initial issuance or renewal of a certificate.
Section 76.37 does not specify the time period which will be
afforded for public comment on an application. However, the Commission
has indicated that it plans to provide at least a 30-day comment period
(February 11, 1994; 59 FR 6797). In light of the comments received, the
Commission has determined, as a matter of policy, that it intends to
provide a comment period of at least 45 days. However, the Commission
cannot assure that any longer public comment period will be provided in
light of the need for an expeditious determination of the application
on an annual basis, including NRC staff review of the application and
public comments, preparation and issuance of the Director's decision,
and consideration of petitions for review by the Commission.
The Commission notes that it has provided for the annual filing of
an application by a specific date and that it will promptly make a copy
of the application available in local public document rooms near the
gaseous diffusion plants. These aspects of the certification process
should enhance the ability of the public to provide comment on the
application.
Section 76.39 Public meeting. This section describes the
procedures for conducting a public meeting on applications at the
discretion of the Director, Office of Nuclear Material Safety and
Safeguards (NMSS), NRC. A public meeting will be held on the initial
certification application.
Ohio Citizens for Responsible Energy (OCRE) requested that the
regulations require a public meeting on the initial certification
process and for the complete review that the NRC anticipates performing
every 10 years.
The final rule, as did the proposed rule, provides that a public
meeting will be held if the Director, at his or her discretion,
determines that a meeting is in the public interest with respect to a
decision on the application. The NRC has already indicated, as a matter
of policy, that a public meeting will be held on the initial
certification application. The Commission continues to be committed to
holding such a meeting. The scope of the Commission's review and public
expression of interest in a public meeting will be important factors in
the Director's decision on whether a meeting on any certificate renewal
is in the public interest.
However, it is not clear that a public meeting will be necessary on
any annual renewals. Commenters on an application may request a public
meeting on annual renewals. The Director, NMSS, will consider these
comments in making a determination of whether a public meeting is in
the public interest.
OCRE also requested that the NRC provide persons whose interests
may be affected by operation of the facilities with the opportunity for
a formal adjudication to contest a certification and ensure correction
of past problems.
The Commission has not made provision for a formal adjudicatory
hearing on a certification decision whenever requested by a person
whose interests are adversely affected. Public notice, opportunity for
written comment, and opportunity to petition the Commission regarding a
Director's decision should provide a fair and efficient procedural
process for public participation in the certification decision. It must
be recognized that Congress explicitly provided for a certification
process in lieu of licensing requirements and did not specify any
particular procedures for the certification process. However, in
addition to the specific procedures which the Commission is providing,
the Commission has also made clear its discretion to adopt by order
further procedures that it determines would serve the purpose of the
Commission's review of the Director's decision (Secs. 76.62(c) and
76.64(c)).
Section 76.41 Record underlying decisions. This section specifies
that any decision will be based on information in the record and that
significant information on any proceeding, with limited exceptions,
will be part of the public docket. This is not intended to constitute a
requirement of adjudication on the record after opportunity for agency
hearing under the Administrative Procedure Act.
No comments were received on this section.
Section 76.43 Annual date for decision. This section describes the
timing of the annual decision on the application by the Director, NMSS,
to be made within 6 months of receipt of the application.
No comments were received on this section.
Section 76.45 Application for amendment of certificate. This
section states the procedures to be followed by the Corporation in
applying for an amendment of a certificate before the established date
of the next application for a certificate.
DOE commented that applications for amendment should be submitted
by the Corporation under oath or affirmation. The Commission has
included this change in the final rule.
Section 76.51 Conditions of certification. This section states
that the Corporation shall comply with all requirements set forth and
referenced in part 76, or in a certificate of compliance, or in an
approved compliance plan.
In one of its comments, the Corporation requested that this section
be revised to permit the Corporation to modify its programs for
material control and accounting, physical protection, protection of
special nuclear material in transit, security, safeguards, and
emergency response so long as the changes do not decrease the
effectiveness of the applicable plans. This permission is already
granted in Sec. 76.68 of the proposed rule. That section permits the
Corporation to make changes to the plant or the plant's operations
without prior Commission approval provided certain conditions are met.
In another comment, the Corporation suggested various retention
periods for records of changes to material control and accounting plans
made without prior Commission approval and for records of changes to
security and safeguards plans made without prior Commission approval.
Requirements for retention of these kinds of records are addressed in
the proposed Sec. 76.68(d). The record retention period for procedural-
like changes is standardized at two years and is shorter than the
periods proposed by the Corporation. Records of changes to the plant
must be retained for the duration of the lease. The Corporation comment
did not explicitly address retention of records of changes to the
plant. The required period is deemed justified because it is important
to both safety and safeguards to have available records describing the
current and past plant configurations.
A final comment from the Corporation on this section suggested a
schedule for informing the Commission of various kinds of changes made
without prior Commission approval. The submission requirement is
addressed in Sec. 76.68(b). The time allowed has been extended from 90
days in the proposed rule to annually in the final rule. The annual
submission date allows more time for submission than any of the
Corporation's suggestions. The annual submission date could coincide
with the annual application and is justified by the continuing presence
of an onsite NRC resident inspector who would be aware of the changes.
Section 76.53 Consultation with Environmental Protection Agency
(EPA). This section states that the Commission will consult with the
EPA in making the annual decision on the application for a certificate,
including the provisions of any compliance plan, and solicit their
written comments on the application.
No comments were received on this section.
Section 76.55 Timely renewal. This section states that timely
filing of an application for a certificate of compliance will maintain
in effect any existing certification or approved compliance plan
effective until issuance of a final decision on the application. This
addresses the unlikely situation in which the Commission is unable to
make the required annual determination regarding an application for a
certificate of compliance despite timely filing of the application. In
this case, the Commission will deem its prior determination regarding
compliance effective until final resolution of the subsequent
application and will advise Congress annually as required under Section
1701(b) of the AEA.
The Corporation requested that the provision on timely renewal be
modified by providing that an existing certificate of compliance or
approved compliance plan not expire until the annual application for a
certificate of compliance ``has been finally determined by the
Commission'' rather than at the time of the Director's determination of
the application. The Corporation also requested that the condition of
timely filing of ``a sufficient annual application'' be changed to
timely filing of ``an annual application in proper form.''
The Commission agrees that an existing certificate or approved
compliance plan should not expire until a final determination is made
by the agency on the renewal application for the certificate. The final
rule has been revised accordingly. The Commission intends that a
certification process will normally be completed on an annual basis in
the absence of extraordinary or unusual circumstances preventing the
completion of the process.
The final rule has been revised to clarify that the Corporation
will not be penalized if NRC does not complete the certification
process expeditiously. However, the Corporation must timely file a
sufficient application that addresses all the elements in Sec. 76.36
for the Commission's determination. NRC staff questions regarding
information provided in the application will not cause an application
to be judged insufficient.
Section 76.60 Regulatory requirements which apply. This section
specifies the requirements which the NRC will apply in certifying the
Corporation's operation of the gaseous diffusion plants.
One commenter suggested that in several places the phrase ``shall
demonstrate compliance'' should be changed to ``shall comply.'' The NRC
agrees with this comment and has changed the final regulation.
The Corporation requested that the rule be changed to allow two
years to convert administrative and procedural elements of its
radiation protection program to meet the standards for protection
against radiation contained in 10 CFR part 20. DOE commented that the
implementation of part 20 requirements should be based upon a schedule
that achieves implementation in a timely, cost-effective manner.
Although the Corporation agreed that the dose limits should become
immediately effective upon receipt of the certification or an approved
compliance plan, they provided no information on how they would be
capable of implementing the dose limits without procedures or
administrative controls in place. The requested two-year extension
could mean that the elements of part 20 would not be in place until
late 1996. The Commission recognizes that although there will be
significant effort required to implement part 20, sufficient time is
available for the Corporation to begin to implement these requirements.
If the Corporation is unable to complete development of the appropriate
procedures and administrative controls, including training before the
date of the NMSS Director's decision, any remaining activities should
be presented as a part of a compliance plan. In addition, the
Corporation expressed concern with obtaining National Voluntary
Laboratory Accreditation Program (NVLAP) approvals. Because NVLAP
testing occurs every 3 months and the facilities possess Department of
Energy Laboratory Accreditation Program (DOELAP) certification, there
should be no difficulty in obtaining NVLAP accreditation before the
NMSS Director's decision.
Another comment noted that until the initial certification, DOE has
the regulatory oversight authority over the gaseous diffusion plants
(GDPs) and, therefore, the implementation date for 10 CFR parts 19 and
21 should coincide with issuance of the initial certificate, rather
than earlier as in the proposed regulation. The NRC agrees with this
comment, and the regulation has been so changed.
Louisiana Energy Services (LES) raised the issue of requiring,
through part 76, that the Corporation maintain liability insurance
comparable to that required by 10 CFR part 140 for uranium enrichment
facilities. The provision cited by LES, 10 CFR 140.13b, is based on
section 193 of the AEA. This section specifically requires that the NRC
require, as a condition of licensing any enrichment facility, that
liability insurance be maintained by the licensee sufficient to cover
liability arising from operations at the licensed facility. The
legislation establishing the Corporation specifically provides that
Price-Anderson indemnification will be provided by the Department of
Energy under Section 170d of the Atomic Energy Act of 1954, as amended
(AEA) for the gaseous diffusion facilities leased to the Corporation by
the DOE. Further, Section 170a of the AEA provides that NRC may require
financial protection for facilities licensed under sections 53, 63, 81,
103, 104, and 185. The certification process does not constitute
issuance of a license within any of these sections of the AEA.
Accordingly, it is the Commission's conclusion that requiring
additional NRC mandated liability insurance for the Corporation's
operations is neither appropriate nor necessary.
One commenter recommended the inclusion of the reference to 10 CFR
part 95 that covers security and safeguarding information in this
section for consistency as other regulations which apply are listed.
The NRC agrees with this comment and the final regulation has been so
changed.
Several commenters expressed concerns about the applicability of
Environmental Protection Agency regulations in 40 CFR parts 61 and 190,
noting that although 10 CFR part 20 incorporates 40 CFR part 190, 10
CFR part 76 did not explicitly reference 40 CFR part 190. The NRC notes
that because the Corporation is required to comply with 10 CFR part 20,
it must also comply with 40 CFR part 190, and 40 CFR part 61, Subpart
H, and that explicit references in part 76 are not necessary.
One commenter noted that certain of the existing regulations
referenced by the proposed rule provided for the imposition of civil
penalties but contended that authority for the NRC to issue a civil
penalty is not included in the Energy Policy Act. The NRC agrees with
the comment and the final rule has been revised to delete the civil
penalty provisions.
Section 76.62 Issuance of certificate and/or approval of
compliance plan. This section specifies that the Director, NMSS, will
issue a written decision on the Corporation's application and states
that the Corporation or affected members of the public who have
provided comments in the proceeding may seek the Commission's review of
the Director's decision.
The Corporation recommended that this section be revised to clarify
that a certificate and a compliance plan are not exclusive of the
issuance of the other. They also expressed concern that the proposed
language might be interpreted to require the Director to withhold the
certificate of compliance in its entirety if there are any outstanding
areas of noncompliance. They requested that the language of the
proposed rule be modified to explicitly state that a certificate of
compliance would be issued for all areas of full compliance and a
compliance plan for areas of current noncompliance. The Commission
agrees that it may issue a certificate of compliance covering those
areas where the Corporation is in compliance with applicable
requirements and the Commission may also approve concurrently a
compliance plan for areas of noncompliance. This section is modified to
clarify this intent.
The Corporation requested modification of proposed Sec. 76.62(c) to
provide that petitions for the Commission's review of a Director's
decision to issue a certificate and/or approve a compliance plan
``shall be limited to matters raised in the petitioner's written or
verbal comments.'' The Commission declines to limit petitioners for
Commission review to matters raised in that petitioner's previous
written or verbal comments. A Director's decision on a certificate or
proposed compliance plan may respond to issues raised by other
commenters or include provisions that a commenter did not anticipate.
For these reasons, those persons whose interests may be affected and
who submitted written or verbal comment on an application will be
permitted to seek Commission review of the Director's decision.
One commenter, OCRE, felt that the 15-day period (from the date of
Federal Register Notice) for filing a petition for Commission review of
a Director's decision to grant or deny a certificate, or approve or
disapprove a compliance plan, was too short. OCRE requested that this
15-day period be extended to at least 25 days. It stated that some
commenters, particularly individuals and public interest groups that
depend upon libraries for access to the Federal Register, may not learn
of the Director's decision within 15 days unless the Director's
decision is provided to all commenters on the application for a
certificate.
The Corporation stated that the 15-day period for filing of a
petition for review of a Director's decision to deny a certificate or
not approve a compliance plan was too short and requested at least 30
days to file such a petition. The Corporation also recommended that the
rules provide that a Commission decision denying an application for a
certificate or disapproving a compliance plan must state that it does
not become effective until at least 10 days after the date of the
decision. In support of these recommendations, the Corporation stated
that a denial could have a significant impact on it and may have
potential implications for national and public policy because the
gaseous diffusion plants supply 40 percent of the world market and 90
percent of the domestic market for enriched uranium and are currently
the sole domestic source of enrichment services.
Both the Corporation and OCRE felt that the 10-day period from the
date of filing a petition for review for responding to a petition for
review was too short. The Corporation requested that this 10-day period
for filing responses to a petition for review be extended to 30 days
because of the burden and prejudice that might occur if the Corporation
were faced with multiple petitions.
OCRE requested that this 10-day period for responding to a petition
be lengthened to at least 20 days. To ensure adequate notice to
interested commenters, OCRE requested not only service of the
Director's decision on commenters but also a mechanism for ensuring
that commenters could receive timely notice of a petition for review.
OCRE observed that the cost of requiring a petitioner to serve all
commenters could be prohibitive and suggested a remedy such as a
telephone information line with recorded information on the case or a
computerized bulletin board system.
The Commission recognizes that the time periods for filing of a
petition for Commission review and responding to a petition for review
are relatively short. The Commission's flexibility in the timing of the
certification process is limited, as noted above, because of the need
for an expeditious determination of the application on an annual basis,
including staff review of the application and public comments,
preparation and issuance of the NMSS Director's decision, and
consideration of petitions for review by the Commission.
The Commission will promptly make copies of an application for a
certificate or approval of a compliance plan available in local public
document rooms at or near the gaseous diffusion plants and will issue a
press release at the time the Director's decision is issued. The
Commission also intends to make promptly available copies of all
Federal Register notices relating to the certification process, as well
as petitions for review, and responses to petitions for review at those
locations. In addition, the NRC staff will examine the feasibility of
establishing a computer bulletin board to provide information on the
application's status.
For these reasons, the Commission has not altered the time periods
for filing of petitions for review or responses thereto. However, the
Commission has added Sec. 76.74 to the final rule that clarifies the
computation of designated time periods and confirms the Commission's
ability to extend or shorten time periods for action for good cause.
Therefore, the Commission may be able to provide some extension of the
period for filing of petitions and responses if time permits during the
period of a particular certification process.
The Commission declines to specify by regulation that a decision
denying an application for a certificate or disapproving a compliance
plan must state that it does not become effective until at least 10
days after the date of the decision. The Commission has determined that
binding itself to such a delay would be inappropriate in emergency
circumstances.
Section 76.64 Denial of certificate or compliance plan. This
section states that the Director, NMSS, may deny the Corporation's
application and that the denial will be noticed in the Federal
Register. This section also provides an opportunity for the Corporation
to submit a compliance plan before the denial is issued. It also states
that the Corporation or affected members of the public who have
provided comments on the application may seek the Commission's review
of the Director's decision.
In response to a comment, this section is revised to clarify that
the compliance plan is a DOE document.
Section 76.66 Expiration and termination of certificate. The
Corporation requested that the NRC add a new section to the final rule
which would address expiration and termination of certificates.
The Commission agrees that these provisions are useful. Thus, a
Sec. 76.66 has been added to the final rule. Paragraph (a) clarifies
that ``except as provided in Sec. 76.55 [timely renewal], a certificate
expires at the end of the day, in the month and year stated.''
Paragraph (b) adds a requirement of prompt notice to the Commission
when the Corporation decides to terminate operation of either of the
GDPs and other authorized activities under the certificate. Paragraph
(c) clarifies that the Corporation must terminate operations on or
before the expiration date in the existing certificate if it does not
submit an application for renewal of the certificate.
Section 76.68 Plant changes. This section describes plant or
operational changes by the Corporation permitted without prior
Commission approval. Documentation of these revisions must be submitted
to the NRC. To make other changes would require Commission approval and
would require the Corporation to apply for an amendment of the
certificate under Sec. 76.45.
Several comments were received concerning this section. The
Commonwealth of Kentucky commented that the Corporation should not be
allowed to make changes without modification of their certificate.
Another commenter stated that the section should be preserved as
written and incorporated into 10 CFR Part 70. The Corporation commented
that the proposed section is overly restrictive and should be closely
modeled after 10 CFR 50.59. The Department of Energy (DOE) recommended
changes that would make it consistent with current DOE Orders.
As written, Sec. 76.68 permits changes similar to those permitted
under 10 CFR 50.59 for reactors and provides flexibility that is beyond
that currently provided for in 10 CFR part 70. Because these plants
will not have technical specifications as referenced in 10 CFR 50.59,
the detailed criteria for evaluation of changes permitted without prior
Commission approval are needed in Sec. 76.68. The Commission does not
believe the evaluation provisions are overly restrictive as suggested
by the Corporation and the evaluation provisions are retained.
Comments were also received concerning the requirement that reports
describing changes made under this section be submitted within 90 days
of their adoption. The final rule has been changed to conform with 10
CFR 50.59 and thus requires that the information on changes be
submitted annually or at shorter intervals as specified in the
certificate.
The Commission believes that the clarified final rule will permit
changes that do not decrease safety and still provide the Corporation
flexibility in the operation of the facilities. The Commission has not
deleted this section as requested by one commenter because the
procedures contained in this section ensure that those changes which
are permitted will not be in conflict with any certification
requirements.
Still another comment on Sec. 76.68 requested that the term
``unreviewed safety question'' be defined. The NRC has no objection to
this definition and has added a definition similar to the usage of the
term in 10 CFR 50.59.
A comment from DOE was also adopted that requires the Corporation
to evaluate any as-found conditions that do not agree with the plant's
programs, plans, policies, and operations in accordance with this
section. This comment was adopted to ensure that any exceptions to what
is assumed or understood are evaluated.
Section 76.70 Post-issuance. This section specifies procedures for
amendment, revocation, suspension, or amendment for cause of the
certificate.
The proposed rule provided that the Commission would provide ``the
Corporation and other interested persons with an opportunity to provide
written views to the Commission'' in connection with a proceeding to
amend, revoke, or suspend a certificate of compliance or compliance
plan. The proposed rule also provided that the Commission ``may adopt
by order further procedures for a hearing of the issues before making a
final enforcement decision.''
In its comments, the Corporation requested that participation in
these enforcement actions be limited to persons whose interests may be
``adversely affected'' by the proposed enforcement action. The
Corporation indicates that this change would make public participation
rights more consistent with those applicable to similar enforcement
proceedings for NRC licensees. In particular, the Corporation seeks to
ensure that the NRC would preclude participation in an NRC enforcement
action by persons seeking more stringent enforcement action than is
proposed by the Commission.
The Commission does not believe it is necessary to limit public
participation to those who are adversely affected by the order or the
proceeding. Such a limitation could necessitate substantial or
protracted consideration of whether a person submitting written
comments on a proposed enforcement action was adversely affected. This
would be inefficient and contrary to the intent of providing for an
expeditious, informal resolution of the enforcement action unless such
a procedure is inadequate for determination of the issues. Informal
enforcement procedures that would foster expeditious resolutions are
desirable, wherever sufficient, because a certification process which
also affords opportunities for public participation will be occurring
on an annual basis.
If the Commission determines that more extensive adjudicatory
procedures are necessary in a particular case, it may order use of
further procedures, such as those in 10 CFR part 2, subpart G or
subpart L. In these cases, intervention would depend on the showing of
how a petitioner's interest is affected in accordance with the adopted
procedures.
However, the general procedural description of post-issuance
enforcement action in the proposed rule does not foreclose the
Commission's ability to limit the scope of a proceeding or define the
issues for determination in any enforcement action. For clarity,
Sec. 76.70 has been revised to specify the procedures that would be
followed in an enforcement action in more detail.
First, the final rule makes explicit that the Commission may
institute a proceeding to modify, suspend, or revoke a certificate or
approved compliance plan, or to take other action as appropriate by
service of an order on the Corporation that specifies: The proposed
action; the alleged violations, or potentially hazardous conditions, or
other facts deemed to be sufficient ground for the proposed action; a
reasonable period for submission of a written response to the order and
for submission of written views by interested persons within a
reasonable period after publication of the order in the Federal
Register; issues for resolution if the proposed action is contested;
and the effective date of the order. If the order is made immediately
effective pending further order, the order must include a statement of
reasons for making the proposed action immediately effective.
Second, the final rule clarifies, inter alia, that the Corporation
may promptly request that the Commission set aside the effectiveness of
an immediately effective order, provided that the request specifically
states the reason why the order is not based on adequate evidence and
is accompanied by affidavits or evidence upon which the Corporation
relies. The NRC shall respond within 5 days of the receipt of the
motion.
These details of the procedural process are similar to those which
apply to issuance of orders to licensees under 10 CFR part 2, subpart
B. However, they preserve the provision for informal procedures for
resolution of the action in the absence of a determination that more
extensive procedures are appropriate.
In addition, the final rule adopts a suggestion from DOE that
information submitted under this section by the Corporation be signed
under oath or affirmation.
Section 76.72 Miscellaneous procedural matters. This section
addresses procedures for filing petitions, ruling on matters of
procedure, and communication between Commission and NRC staff.
Additional guidance regarding the filing and service of petitions for
review of the NMSS Director's decision and responses to these petitions
may be included in the Director's decision or by order of the
Commission.
Except for proceedings under 10 CFR part 2, subpart G, for
imposition of a civil penalty resulting from violations of section 206
of the Energy Reorganization Act of 1974, the Commission is not
imposing restrictions on ex parte communications or on the ability of
the NRC staff and the Commission to communicate with one another at any
stage of this regulatory process. The NRC staff would not participate
in a review of the Director's decision as a party but would serve as an
advisor to the Commission. Congress has not required formal
adjudication. The Commission believes that informal processing without
such formal restrictions on communication is best suited for resolution
of annual applications for a certificate.
Section 76.74 Computation of extension of time. This section has
been added to the final rule to specify the duration of designated time
periods and confirm the Commission's ability to extend or shorten time
periods for action for good cause and specifies that additional time
would be granted in the event that a required date falls on a Saturday,
Sunday or legal holiday.

C. Technical Safety Requirements

The major technical safety requirements are found in the following
sections:
Section 76.35 Contents of initial applications. This section
specifies that applications must include a safety analysis report, a
compliance status report which includes environmental and effluent
monitoring data, a quality assurance program description, a description
of the use of radioactive material, a description of the training
program, a nuclear material control and accounting plan, a physical
protection plan for special nuclear material in transit, a plant
physical security plan, an emergency plan, a plan for security facility
approval and protection of classified information and hardware, a
description of the Corporation's response necessary to implement the
International Atomic Energy Agency safeguards agreement, and a
description of the waste treatment and management program.
The Corporation requested a change in format regarding contents of
applications for the purpose of increased clarity regarding the precise
scope of the initial application and of renewal applications. Included
in the proposed restructuring was revision of proposed Sec. 76.35
pertaining to contents of application so as to limit its scope to the
contents of the initial application. The Corporation also recommended
the addition of a new Sec. 76.36 that would present the precise content
of the annual resubmittal.
The NRC agrees that the revised format will add clarity to the
prescribed content of the initial and renewal applications. As a result
of the restructuring, the final rule makes Sec. 76.35 applicable to
initial applications and adds a new Sec. 76.36 applicable to annual
renewal.
The Corporation also recommended an application procedure which
would generally follow the guidance of NRC Regulatory Guide 3.52. These
proposed changes were based on an application which would contain a
``Part I'' comprised of binding certificate ``conditions'' and a ``Part
II'' containing a nonbinding safety demonstration. This restructuring
was not adopted. This decision is based on a recent review of the
Commission's current licensing and oversight programs for fuel cycle
plants1 that indicates the ``Part I/II'' approach will probably be
changed and that safety analysis reports will be required. The
Corporation, in its comments, identified the ``Part II'' safety
demonstration to be functionally equivalent to the safety analysis
report. While this is generally true, with respect to technical
content, the NRC believes that safety analysis reports are preferable
because they provide more rigorous, binding documentation of the basis
for safe operation of a plant. Changes to the safety analysis report
would be permitted only in accordance with Sec. 76.68.
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\1\ Proposed Method for Regulating Major Materials Licensees,
NUREG-1324.
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In publishing the draft 10 CFR part 76, the Commission specifically
requested comments on the appropriateness of requiring the Corporation
to provide financial assurance for the costs associated with
decontamination and decommissioning of the gaseous diffusion plants.
Comments were received favoring both retention and deletion of a
financial assurance requirement. The Corporation commented that DOE was
responsible for decontamination and decommissioning of the gaseous
diffusion plants under the AEA and that the financial assurance
requirements should not apply to the Corporation. DOE, on the other
hand, noted that it is only responsible for decontamination and
decommissioning of pre-existing conditions under the AEA and that the
Corporation will remain responsible for other costs associated with
decontamination and decommissioning, including the costs associated
with disposal of wastes generated during Corporation operation of the
GDPs.
The NRC has determined that the Corporation does have some limited
financial responsibility for decontamination and decommissioning
activities. The Corporation has acknowledged in its comments that,
under its lease with DOE, there is at least one area where it remains
responsible for the costs of decommissioning. Specifically, the
Corporation has acknowledged that it is responsible for any increased
costs for DOE decontamination and decommissioning of the facilities
that arise from removal by the Corporation of capital improvements the
Corporation makes at the facilities. In addition, the terms of the DOE/
Corporation lease provide that the Corporation is to remain financially
responsible, even after return of the GDPs to DOE, for the ultimate
treatment and disposal of wastes generated by the Corporation.
Nevertheless, the NRC has determined that the language in the draft 10
CFR part 76 requiring financial assurance from the Corporation was
written to apply to a broader scope of decontamination and
decommissioning activities than are the Corporation's responsibility.
Accordingly, the final rule has been revised to require that the
Corporation provide financial assurance for only those aspects of the
decontamination and decommissioning costs which are their
responsibility.
Two commenters asked that the Corporation be required to
demonstrate compliance with the applicable provisions of 10 CFR Part 61
which deal with waste classification and waste disposal because these
requirements are essential for the proper handling and disposal of all
wastes at the GDPs. Waste classification is covered under 10 CFR part
20, subpart K; therefore, an additional reference to 10 CFR part 61 is
not needed.
One commenter suggested that a specific license be required if the
Corporation proposes to treat radioactive waste at one plant that was
received from the other plant and that the Corporation be required to
obtain approvals for the treatment from the Central Midwest Interstate
Low-Level Radioactive Waste Commission. Plans for treatment of any
radioactive waste stream by the Corporation are a required part of the
initial application for certification under proposed Sec. 76.35(k). The
certification process, therefore, will include consideration of the
waste stream issue. Under Section 1701 (c)(3) of the AEA, the
certification process is in lieu of any other requirement for a license
for the gaseous diffusion plants leased by the Corporation from the
DOE. Accordingly, no NRC issued specific license addressing the
radioactive waste streams at the DOE gaseous diffusion plants being
leased to the Corporation is required.
DOE suggested that the rule specifically prohibit the Corporation
from transporting special nuclear material of moderate strategic
significance (Category II material) or formula quantities of special
nuclear material (Category I material). These activities are not
contemplated, and this prohibition has been included in the rule.
One commenter suggested that the rule include the requirement for
semiannual reporting of effluents as contained in the Corporation
proposal. Although semiannual reporting is a requirement in 10 CFR part
70, this recommendation was not adopted. Semiannual reporting is
intended for licensees who hold multi-year licenses. The Corporation
will be required to report its annual effluent with the certification
application every year. This is adequate for assessment purposes. There
appears to be no additional benefit in receiving the information on a
semiannual basis.
Section 76.85 Assessment of accidents. This section contains the
requirement for performance of a safety analysis of the potential for
releases of radioactive material from accidents.
Specifically, the rule requires that a safety analysis of the site
activities be performed to evaluate the potential for releases of
radiological material from the existing plants. The analysis should
evaluate expected releases from a reasonable spectrum of postulated
accident scenarios which may occur in the gaseous diffusion plants,
taking into account existing systems in operation, including
procedures, that are intended to mitigate the consequence of any
release. These potential releases, together with operational practices
and site characteristics, including meteorology, are to be used to
evaluate the potential for onsite and offsite radiological
consequences.
The Corporation must provide a level of protection against
accidents during plant operations sufficient to provide adequate
protection of the public health and safety. In assessing the level of
protection provided by the Corporation, the NRC will consider both the
total radiation dose to the whole body and the intake of soluble
uranium for an individual at the site boundary.
Several comments were received concerning the level of protection
against accidents during plant operations sufficient to provide
adequate protection of public health and safety. The Commission
specifically requested comments on the use of safety objectives,
including suggested limiting values with supporting rationale, and
whether or not they should be included as part of the rule. The
Environmental Protection Agency stated that the EPA Protective Guides
(1-5 rem) should be used rather than the criteria discussed in the
proposed rule and that the values should be specified in the
regulation. Several other commenters agreed with this approach. Another
commenter stated that the final standards for accident dose assessment
should be applied equally to all enrichment facilities. The Corporation
objected to the use of any limits in the rule or its accompanying
statements to determine the adequacy of accident analysis results and
indicated that it is well beyond current regulatory practice. DOE
suggested addressing chemically toxic material as well.
The Commission has decided not to include numerical accident limits
in the final rule. The NRC believes that to include a specific
numerical limit in the regulation could be unduly restrictive,
considering that the plants have already been designed and sited and
the uncertainty of health effects for uranium intakes. The NRC staff
contracted with Pacific Northwest Laboratory2 to review the
available literature on uranium toxicity and the results of this review
suggested that the best estimate of a toxicity threshold would be an
intake of 30 milligrams of uranium. In assessing the adequacy of
protection of the public health and safety from potential accidents,
the NRC will consider whether the potential consequences of a
reasonable spectrum of postulated accident scenarios exceed .25 Sv (25
rems), or uranium intakes of 30 milligrams, taking into account the
uncertainties associated with modeling and estimating such
consequences.
---------------------------------------------------------------------------

\2\Fisher, D. R. et al., ``Uranium Hexafluoride Public Risk,''
PNL-10065, August 1994.
---------------------------------------------------------------------------

In considering intakes of soluble uranium, the Commission
recognizes that the chemical toxicity of uranium could be the limiting
factor in the accident analysis under this section. The Commission's
intended use of chemical toxicity considerations in part 76 is
consistent with its practice elsewhere (e.g., 10 CFR 20.1201(e)), and
prevents any potential regulatory gap in public protection against
toxic effects of soluble uranium.
The EPA guidelines of 1-5 rem for offsite protection action
recommendations are appropriate for emergency planning purposes but are
not appropriate for accident analysis.
The final rule requires that a safety analysis of the site
activities be performed to evaluate the potential for releases of
radiological material from the existing plants. The analysis should
evaluate releases from a reasonable spectrum of postulated accident
scenarios which may occur in the gaseous diffusion plants, taking into
account the existing systems in operation, including procedures, that
are intended to mitigate the consequence of any release. These
potential releases, together with operational practices and site
characteristics, including meteorology, are to be used to evaluate the
potential onsite and offsite radiological consequences. Technical
safety requirements will be established to ensure that releases are
unlikely and, in any case, if releases occur they will be within an
acceptable range.
One commenter stated that the NRC would have no mechanism for
enforcement of numerical limits if they are not included in the
standards. The certificate issued by the NRC will include limiting
conditions for operation that will be enforceable.
LES commented that specific natural phenomena and specific accident
dose limits should be applied equally to all enrichment facilities. The
apparent reference for this suggestion was the current NRC review of
their license application for a new uranium enrichment facility.
Another commenter expressed concern that the Paducah plant resides in a
geological rift zone. The NRC will not include specific reference
design assessment values for the existing Corporation facilities, since
these facilities are already sited, but will evaluate consequences of
potential accidents resulting from natural phenomena during review of
the Corporation's safety analysis.
A comment was also received concerning the discussion in the
statement of considerations on the development of guidance on an
integrated safety analysis (ISA) and applicability to the GDPs. The
final rule does not include requirements for an ISA because its
incorporation into the regulatory process is still under NRC staff
review.
Section 76.87 Technical safety requirements. This section
specifies that safety requirements must be included in the application.
Safety topics to be considered are those mainly associated with plant
operations, management controls, and confinement of radioactive
material.
The rule requires the application to include technical safety
requirements derived from the analyses and evaluations in the safety
analysis report. These safety requirements would include safety limits
and limiting control settings within which process variables would be
maintained for adequate control to guard against an uncontrolled
release of radioactivity. The safety requirements would also include
limiting conditions for operation, surveillance requirements, design
features, and administrative controls. The requirements are similar to
operating technical specifications or license conditions applied to
licensed nuclear facilities to assure that operations are controlled as
described in the safety analysis report.
The Corporation requested that the use of the term ``technical
safety requirements'' (TSRs) be changed to ``operational safety
requirements'' (OSRs) as the GDPs have historically operated under OSRs
which are similar to TSRs. The Corporation also suggested a change from
``Safety Analysis Report'' (SAR) to ``Safety Demonstration'' (SD) as
being ``functionally equivalent.'' The Commission prefers the term
``technical safety requirements'' because the requirements may cover
subjects broader than operations, and because existing Corporation
operational requirements include matters beyond NRC jurisdiction.
Similarly, the term ``safety analysis report'' is preferred because it
is a more generally accepted term. Therefore, no change was made to the
rule.
The Corporation also recommended deletion of the list of the 14
safety topics that are to be addressed as being more appropriate for
identifying accidents for analysis. DOE referenced the list of safety
topics as those which must be addressed under assessment of accidents.
The list of topics to be addressed in the technical safety requirements
is included to ensure that operations are controlled within certain
safe parameters under normal, off-normal, and accident conditions.
Therefore, the list has been retained, but the rule has been revised to
clarify that the Corporation must describe the procedures and/or
equipment that reflect consideration of each of the listed safety
topics.
Section 76.93 Quality assurance. This section requires a quality
assurance program. The Commission recognizes that the GDPs are fuel
cycle facilities and that the appropriate quality assurance (QA) for
GDPs is not the same as for reactors. The GDPs are existing plants
designed and constructed around 40 years ago. The QA requirements for
the GDPs will be based on applying the applicable requirements of ASME
NQA-1-1989, ``Quality Assurance Program Requirements for Nuclear
Facilities,'' in a graded approach and to an extent that is
commensurate with the importance to safety.
A Corporation comment agreed with use of ASME NQA-1 as a basis for
a quality assurance program (Sec. 76.93), but expressed concern that
implementation problems could result if NQA-1 is applied in a manner
similar to reactors. The Corporation suggested that the rule should
allow use of equivalent alternatives to NQA-1. If found adequate under
review, the NRC could approve use of an equivalent alternative to NQA-
1, and the final rule has been revised accordingly.
Section 76.95 Training. This section requires a description of the
training program that will be provided to personnel to enable them to
perform the functions of their jobs, including information on the
positions for which training will be provided, to assure that personnel
are qualified to operate and maintain the plants safely and in
compliance with regulatory requirements.
The Corporation strongly recommended that the performance-based
training concept be deleted from the proposed rule and instead require
the Corporation to ``establish, implement and maintain a training
program to assure that personnel are adequately trained to perform
their nuclear-safety related functions.'' They indicated that
development of performance-based training would go well beyond both the
existing requirements of 10 CFR part 70 and current practices at the
GDPs. They further commented that it would subject the Corporation to
the very costly and difficult task of fully implementing a performance-
based training program by the time that it submits its initial
application for a certificate. The Corporation believes the proposed
section will require the GDPs ``to adopt the full performance-based
training concept embodied in part 50'' which uses the Institute of
Nuclear Power Operations (INPO) training methodologies for commercial
power reactor licensees. The Corporation estimates it will cost about
$8 million to fully develop and implement a training program for
selected tasks affecting nuclear safety or radiological controls.
The Commission believes that the performance-based training
requirement should be retained. The Corporation's main concern is that
it might be expected to establish training programs of similar
complexity to those of power reactors, which is not the case. The final
rule allows flexibility, and the Commission believes that the existing
training program inherited by the Corporation can be adapted to comply
with the rule at reasonable cost.
The Commission must be assured that adequate training is provided
and that those persons performing operations that could have an effect
on health and safety have mastery of their operating tasks. Therefore,
the final rule was not changed. The Commission believes that a training
program that includes the concepts of performance-based training
provides that assurance. The Commission also notes that a requirement
for performance-based training has been established for nuclear power
reactors and has been determined to be cost-effective for such
facilities. The Commission does not see any reason to conclude that
this will not also be the case for the enrichment plants.

D. Incorporation of Existing Regulations

Portions of existing Commission regulations are applicable to
certification of the Corporation's operation of the gaseous diffusion
plants and cross referenced (Sec. 76.60).
Requirements for notices, instructions, and reports to workers are
contained in 10 CFR part 19, ``Notices, Instructions, and Reports To
Workers: Inspection and Investigations.'' Part 19 specifies the
requirements for notices, instructions, and reports by the Corporation
to individuals participating in gaseous diffusion activities. It also
sets forth the rights and responsibilities of the Commission and
individuals during interviews on any matter within the Commission's
jurisdiction.
Requirements for protection against ionizing radiation are
contained in 10 CFR part 20, ``Standards For Protection Against
Radiation.'' Part 20 specifies the requirements to control the receipt,
possession, use, storage, transfer, and disposal of byproduct, source,
and special nuclear material by the Corporation in such a manner that
the total dose to an individual (including doses resulting from
radioactive material and from radiation sources other than background
radiation) does not exceed the standards for protection against
radiation prescribed by the NRC for normal operating conditions and
anticipated operational occurrences.
A comment was received indicating that the health of the public is
being placed at risk presently and this policy would continue under the
proposed NRC rules. The NRC standards require that the Corporation must
meet part 20 requirements for protection of workers and the public
against radiation. This includes specific effluent limits that the
Corporation must meet. The Commission believes that the current
requirements of part 20 provide for adequate safety for workers and the
public from radiation effects.
Requirements for reporting of defects and noncompliance are
contained in 10 CFR part 21, ``Reporting of Defects and
Noncompliance.'' Part 21 specifies the procedures and requirements for
persons to notify the Commission immediately of component defects or
failure to comply with regulatory requirements which could create a
substantial safety hazard.
Requirements for fitness-for-duty programs are contained in 10 CFR
part 26, ``Fitness-for-Duty Programs.'' Part 26 prescribes requirements
and standards for the establishment and maintenance of fitness-for-duty
programs to reduce the likelihood of theft or diversion of strategic
special nuclear material. The requirements of this part are relevant
only to the extent that the Corporation elects to engage in activities
which involve formula quantities of strategic special nuclear material.
Requirements for packaging and transportation are contained in 10
CFR part 71, ``Packaging and Transportation of Radioactive Material.''
Part 71 establishes requirements and procedures for packaging,
preparation for shipment, and transportation of radioactive material.
Requirements for physical security and material control and
accounting are contained in 10 CFR part 70, ``Domestic Licensing of
Special Nuclear Material,'' part 73, ``Physical Protection of Plants
and Materials,'' and part 74, ``Material Control and Accounting of
Special Nuclear Material,'' as specified in subpart E to this part.
Subpart E to part 74 identifies the specific sections that establish
the requirements and procedures for transfer, protection at fixed sites
and in transit, and control and accounting of the various enrichments
of U-235 covered under the certification.
Safeguards regulation of special nuclear material is conducted on a
graded basis. The grades reflect the importance of specified kinds and
quantities of material to the public safety and to the common defense
and security. Three grades of material are defined in Commission
regulations. In declining order of importance they are:
(1) Formula quantities of strategic special nuclear material (also
referred to by the shorter phrase ``Category I material'');
(2) Special nuclear material of moderate strategic significance
(Category II), and
(3) Special nuclear material of low strategic significance
(Category III).
The gaseous diffusion plants are to produce only Category III
material, and only the safeguards for that grade of material need apply
to production activities. Nonetheless, the Commission recognizes that
the Corporation may need to or may opt to engage in nonproduction
activities that involve the other categories of material. In the past,
the Portsmouth plant has produced high enriched uranium hexafluoride
(UF6). As a result of this past production, there may be portions
of the plant under lease by the Corporation or to which it will have
access that will continue to have high enriched UF6 fixed to
interior surfaces of process equipment. Additionally, some areas, such
as the analytical laboratory, may continue to have a high enriched
inventory. The Corporation may elect to engage in nonproduction
business activities that involve high enriched UF6. To be
responsive to the full range of possible Corporation activities,
safeguards regulations for all three categories of material are listed
in subpart E and are to be applied in accordance with the categories of
material the Corporation actually uses, possesses, or has access to.
One commenter noted that the referenced requirement of
Sec. 70.51(d) is not consistent with Sec. 74.33(c)(4)(i) [12 months
verses 370 days] in specifying the static inventory frequency for
material control and accounting for uranium. The NRC agrees with this
comment and has revised Sec. 76.117(a) to specify 370 days as the
static inventory frequency for the GDPs. The 370-day period contained
in Sec. 74.33(c)(4)(i) and revised Sec. 76.117(a) provides a full year
with an additional margin of a few days to provide flexibility.
Other comments focus on Secs. 74.15(b)(2), 74.33(c)(2),
74.33(c)(4)(i) and 74.33(c)(6), which are among the various material
control and accounting requirements referenced in Sec. 76.117. The
comments request relief from various aspects of these requirements and
provide rationale in support of the request. The requirements of
Sec. 74.15 and Sec. 74.33 are performance requirements that must be
implemented on a site-specific basis for the fundamental nuclear
material control plans for each site that the Corporation must submit
for NRC approval. The nuclear material control plans must describe how
each requirement will be carried out at each of the two sites. After
approval, the plan will become the principal document that governs
material control and accounting at the site. Because the requirements
are performance requirements rather than prescriptive requirements,
wide latitude exists for achieving appropriate performance for the
overall material control and accounting program. Accordingly, no change
to the proposed regulation was made in response to these specific
comments.
The requirement the Corporation believes has the greatest potential
cost impact is Sec. 74.33(c)(4)(i), which requires enrichment
facilities to conduct periodic inventories of in-process enriched
uranium for safeguards accountability purposes. This inventory consists
of a large quantity of material in gaseous form and a relatively small
quantity of solids. The Corporation requested that the rule require
measurement of material in the gas phase only. The Corporation believes
that, due to the size of the facilities, the relatively small quantity
of solids, and the limitations of instruments in distinguishing between
the solids and the gaseous material, extensive direct measurement of
the solids is not practical and the cost would, in any case, be
prohibitive. The Commission believes that a broad exemption from
measurement of the solids would undermine the well-established domestic
and international safeguards principle requiring strict accountability
of special nuclear material. The Commission further believes that the
rule can be met by methods other than extensive direct measurements,
for example, appropriate sampling and use of previous measurements, at
reasonable cost and, therefore the rule has not been changed.
In the course of reviewing the comments, it was found that
Sec. 70.22(h), which contains requirements for physical security plans
for Category I material, had not been incorporated by reference in
Sec. 76.113 as was intended. That reference has now been incorporated.
The change is for completeness and will affect the Corporation only in
the unlikely event that it elects to operate a Category I plant.
Additionally, it was found that Sec. 73.70 had been unintentionally
incorporated by reference into Sec. 76.117. The reference is not
relevant to Sec. 76.117 and has been deleted.
NRC does not intend to incorporate any additional requirements for
personnel security screening for access to or control over special
nuclear material as contained in 10 CFR part 11, ``Criteria and
Procedures for Determining Eligibility for Access to or Control over
Special Nuclear Material,'' if the Corporation elects to engage in
activities which involve strategic special nuclear material. The
requirements for this separate access program are met by the DOE access
authorization program for the GDPs.
A comment was received indicating that no unrecovered costs should
be incurred by the NRC in conjunction with certification, and a fee
schedule should be included in the rule. All NRC costs associated with
GDP certification are recovered from the Corporation and need not be
covered in this rule. Fees are covered in 10 CFR parts 170 and 171.
Requirements for security facility approval and protection of
classified matter are contained in 10 CFR part 95, ``Security Facility
Approval and Safeguarding of National Security Information and
Restricted Data.'' The Corporation and its contractor personnel will be
considered as authorized by the Commission under Sec. 95.35(a) for
access to classified matter based on their DOE access authorizations.
In addition, the Corporation commented that the proposed
modification to Sec. 95.5 should be deleted because it incorrectly
attempts to incorporate the Corporation, which is not a licensee, under
the definition of a ``licensee.'' This suggested revision was adopted
as ``corporation,'' is covered in Sec. 76.60 and is under the
definition of ``person'' listed in 10 CFR 95.5.
The Corporation requested that Sec. 76.119 be modified to require
examination of 25 percent of the security containers daily on a
rotational basis if the containers are in a controlled access area. The
Corporation also recommended that Sec. 76.119 be modified to
specifically state that 10 CFR 95.37(g), 95.41, 95.43, and parts of
Sec. 95.47 do not apply to the Corporation and to clarify that document
control practices implemented under DOE security oversight may
continue. DOE commented that the rule should include an exception that
the Corporation be permitted to continue using the applicable DOE
procedures and practices when a conflict occurs between NRC
requirements and the DOE documents. The Commission does not accept this
recommendation, because the regulations for protection of classified
matter should be consistent for all regulated organizations. The
provisions of 10 CFR part 95, coupled with an approved security plan
for the protection of classified matter, will contain all of the
applicable requirements for security facility approval and for the
safeguarding of classified matter at the gaseous diffusion plants. The
Commission does not anticipate any significant conflicts with the
previous DOE procedures. However, any conflicts that may be identified
will be resolved on a case-by-case basis.

Security Facility Approval and Safeguarding of National Security
Information and Restricted Data; Minor Conforming Changes

Minor editorial changes are also being made to certain sections of
10 CFR part 95 to clarify that there are unique aspects of uranium
enrichment facilities and operations which handle, store, process,
transport, transmit, and destroy classified matter. Specific changes
include replacing the use of the term ``documents'' with ``matter'' in
order to include the classified equipment and hardware associated with
uranium enrichment plants; more precisely defining ``NRC access
authorizations'' because the Corporation will not be subject to 10 CFR
part 25; and modifying Sec. 95.36 to include participants in other
international agreements.
Section 95.37(a) is also being revised to replace the reference to
classification guidance previously included as Appendix A to part 95.
This guidance is available separately in a more usable form such as
NUREG/BR-0069, Revision 2, ``NRC Classification Guide for National
Security Information Concerning Nuclear Material And Facilities.''
NUREG/BR-0069, which is publicly available, can readily be updated to
promptly reflect Executive Orders that require modifications to the
guidance associated with classification issues. Currently, each NRC
licensee has committed in its approved security plans to using NUREG/BR
0069 instead of relying on 10 CFR part 95, appendix A. Similarly, the
GDPs will be expected to reference more up-to-date classification
guidance such as NUREG/BR-0069 in complying with 10 CFR part 95.
Because NUREG/BR-0069 is a more appropriate reference than 10 CFR part
95, appendix A, this appendix is being deleted and appropriate changes
to Sec. 95.37(a) are being made to reflect the actual use of
alternative NRC classification guidance documents.

Finding of No Significant Environmental Impact: Availability;
Categorical Exclusion

The Commission has determined under the National Environmental
Policy Act (NEPA) of 1969, as amended, and the Commission's regulations
in subpart A of 10 CFR part 51, that this rule is not a major Federal
action significantly affecting the quality of the human environment
and, therefore, an environmental impact statement is not required. The
two plants to be regulated by this rule have already been subject to
evaluation in accordance with NEPA. The Department of Energy has
prepared an environmental impact statement for the gaseous diffusion
plant in Piketon, Ohio,3 and an environmental assessment for the
plant in Paducah, Kentucky.4 The NRC has reviewed those documents,
as well as environmental reports prepared by DOE for both facilities in
1992 and environmental audits prepared by DOE prior to turning
operation of the Facilities over to the Corporation in 1993. The NRC
also conducted extensive site visits. No significant differences in
operations, previously evaluated by DOE, were identified that would
result in current operations having significantly different
environmental effects than those already evaluated in DOE's
environmental reviews. The Commission's certification requirements are
intended to be at least as stringent as the existing requirements
applicable to the two plants which are currently operating and have
been operating for nearly 40 years. The promulgation of a rule
governing these plants, and their subsequent regulation by the NRC,
will not result in any environmental impacts beyond those previously
considered by DOE in its environmental reviews and which currently
exist or would be expected to continue absent NRC regulatory oversight.
The NRC environmental assessment and finding of no significant impact
on which this determination is based are available for inspection at
the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
---------------------------------------------------------------------------

\3\ Final Environmental Impact Statement, Portsmouth Gaseous
Diffusion Plant Site, May 1977, ERDA-1555; Final Environmental
Statement, Portsmouth Gaseous Diffusion Plant Expansion, September
1977, ERDA-1549.
\4\ Final Environmental Impact Assessment Of The Paducah Gaseous
Diffusion Plant Site, August 1982, DOE/EA-0155.
---------------------------------------------------------------------------

Similarly, subsequent certificates of compliance including
amendments, modifications, and renewals issued pursuant to this part
will consist of findings of compliance with 10 CFR part 76. Therefore,
these actions will not result in any significant new environmental
impacts. The regulations require that the Corporation submit
information for use by NRC in preparing an environmental assessment for
certification applications addressing areas where the facilities are
not in compliance with the requirements of part 76. Part 51 of Title 10
of the Code of Federal Regulations is being amended to include a
categorical exclusion for such certification actions pursuant to part
76.
Under its procedures implementing NEPA, the Commission may exclude
from preparation of an environmental impact statement or an
environmental assessment a category of actions which do not
individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in NRC
procedures. In this rulemaking, the Commission finds that the issuance,
amendment, modification, and revision of a certificate of compliance
for the Corporation comprise a category of actions which does not
individually or cumulatively have a significant effect on the human
environment. Actions within this category are similar in that they will
be based on a finding by NRC that the Corporation has demonstrated
compliance with the requirements in part 76. After conducting an
environmental assessment for part 76, the Commission made a finding of
no significant environmental impact, and concluded that part 76
requirements, if promulgated, would not allow the enrichment facilities
to operate in such a way as to result in any adverse environmental
effects greater than those which currently exist or would be expected
to continue absent NRC regulatory oversite. Accordingly, a Commission
finding of compliance with the part 76 requirements would not have a
significant effect on the human environment.

Paperwork Reduction Act Statement

The information collection requirements contained in this rule of
limited applicability apply only to a wholly-owned instrumentality of
the United States and affect fewer than 10 respondents. Therefore,
Office of Management and Budget clearance is not required pursuant to
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Regulatory Analysis

The Commission has prepared a regulatory analysis on this
regulation. The analysis examines the costs and benefits of the
alternatives considered by the Commission. The analysis is available
for inspection in the NRC Public Document Room, 2120 L Street NW.
(Lower Level), Washington, DC.

Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a
significant economic impact upon a substantial number of small entities
because it only addresses the Corporation's operation of two existing
plants which do not fall into this category.

Backfit Analysis

The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this rule, and therefore, a backfit analysis is not
required.

List of Subjects

10 CFR Part 19

Criminal penalties, Environmental protection, Nuclear materials,
Nuclear power plants and reactors, Occupational safety and health,
Radiation protection, Reporting and recordkeeping requirements, Sex
discrimination.

10 CFR Part 20

Byproduct material, Criminal penalties, Licensed material, Nuclear
materials, Nuclear power plants and reactors, Occupational safety and
health, Packaging and containers, Radiation protection, Reporting and
recordkeeping requirements, Source material, Special nuclear material,
Waste treatment and disposal.

10 CFR Part 21

Nuclear power plants and reactors, Penalties, Radiation protection,
Reporting and recordkeeping requirements.

10 CFR Part 26

Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug
abuse, Drug testing, Employee assistance programs, Fitness for duty,
Management actions, Nuclear power reactors, Protection of information,
Reporting and recordkeeping requirements.

10 CFR Part 51

Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.

10 CFR Part 70

Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 71

Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.

10 CFR Part 73

Criminal penalties, Hazardous materials transportation, Export,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.

10 CFR Part 74

Accounting, Criminal penalties, Hazardous materials transportation,
Material control and accounting, Nuclear materials, Packaging and
containers, Radiation protection, Reporting and recordkeeping
requirements, Scientific equipment, Special nuclear material.

10 CFR Part 76

Certification, Criminal penalties, Radiation protection, Reporting
and recordkeeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.

10 CFR Part 95

Classified information, Criminal penalties, Reporting and
recordkeeping requirements, Security measures.

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 adopting the
following amendments to 10 CFR parts 19, 20, 21, 26, 51, 70, 71, 73,
74, and 95 and the new 10 CFR part 76.

PART 19--NOTICES, INSTRUCTIONS, AND REPORTS TO WORKERS: INSPECTION
AND INVESTIGATIONS

1. The authority citation for part 19 is revised to read as
follows:

Authority: Secs. 53, 63, 81, 103, 104, 161, 186, 68 Stat. 930,
933, 935, 936, 937, 948, 955, as amended, sec. 234, 83 Stat. 444, as
amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073,
2093, 2111, 2133, 2134, 2201, 2236, 2282, 2297f); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851).

2. Section 19.2 is revised to read as follows:

Sec. 19.2 Scope.

The regulations in this part apply to all persons who receive,
possess, use, or transfer material licensed by the Nuclear Regulatory
Commission pursuant to the regulations in parts 30 through 36, 39, 40,
60, 61, or part 72 of this chapter, including persons licensed to
operate a production or utilization facility pursuant to part 50 of
this chapter, persons licensed to possess power reactor spent fuel in
an independent spent fuel storage installation (ISFSI) pursuant to part
72 of this chapter, and in accordance with 10 CFR 76.60 to persons
required to obtain a certificate of compliance or an approved
compliance plan under part 76 of this chapter. The regulations
regarding interviews of individuals under subpoena apply to all
investigations and inspections within the jurisdiction of the Nuclear
Regulatory Commission other than those involving NRC employees or NRC
contractors. The regulations in this part do not apply to subpoenas
issued pursuant to 10 CFR 2.720.

PART 20--STANDARDS FOR PROTECTION AGAINST RADIATION

3. The authority citation for Part 20 is revised to read as
follows:

Authority: Secs. 53, 63, 65, 81, 103, 104, 161, 182, 186, 68
Stat. 930, 933, 935, 936, 937, 948, 953, 955, as amended, sec. 1701,
106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2093, 2095, 2111, 2133,
2134, 2201, 2232, 2236, 2297f), secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

4. Section 20.1002 is revised to read as follows:

Sec. 20.1002 Scope.

The regulations in this part apply to persons licensed by the
Commission to receive, possess, use, transfer, or dispose of byproduct,
source, or special nuclear material or to operate a production or
utilization facility under parts 30 through 36, 39, 40, 50, 60, 61, 70,
or 72 of this chapter, and in accordance with 10 CFR 76.60 to persons
required to obtain a certificate of compliance or an approved
compliance plan under part 76 of this chapter. The limits in this part
do not apply to doses due to background radiation, to exposure of
patients to radiation for the purpose of medical diagnosis or therapy,
or to voluntary participation in medical research programs.

PART 21--REPORTING OF DEFECTS AND NONCOMPLIANCE

5. The authority citation for Part 21 is revised to read as
follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 234, 83
Stat. 444, as amended, sec. 1701, 106 Stat. 2951, 2953 (42 U.S.C.
2201, 2282, 2297f); secs. 201, as amended, 206, 88 Stat. 1242, as
amended, 1246 (42 U.S.C. 5841, 5846).
Section 21.2 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).

6. Section 21.2 is amended by adding paragraph (e) to read as
follows:

Sec. 21.2 Scope.

* * * * *
(e) The regulations in this part apply in accordance with 10 CFR
76.60 to each individual, partnership, corporation, or other entity
required to obtain a certificate of compliance or an approved
compliance plan under part 76 of this chapter.

PART 26--FITNESS-FOR-DUTY PROGRAMS

7. The authority citation for Part 26 is revised to read as
follows:

Authority: Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935,
936, 937, 948, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42
U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, 2201, 2297f); secs. 201,
202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841,
5842, 5846).

8. Section 26.2 is amended by adding paragraph (d) to read as
follows:

Sec. 26.2 Scope.

* * * * *
(d) The regulations in this part apply to the Corporation required
to obtain a certificate of compliance or an approved compliance plan
under part 76 of this chapter only if the Corporation elects to engage
in activities involving formula quantities of strategic special nuclear
material. When applicable, the requirements apply only to the
Corporation and personnel carrying out the activities specified in
Sec. 26.2(a)(1) through (5).

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS

9. The authority citation for Part 51 is revised to read as
follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842).

10. Section 51.22 is amended by adding paragraph (c)(19) to read as
follows:

Sec. 51.22 Criterion for categorical exclusion; identification of
licensing and regulatory actions eligible for categorical exclusion or
otherwise not requiring environmental review.

* * * * *
(c) * * *
(19) Issuance, amendment, modification, or renewal of a certificate
of compliance of gaseous diffusion enrichment facilities pursuant to 10
CFR part 76.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

11. The authority citation for Part 70 is revised to read as
follows:

Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, sec. 1701,
106 Stat. 2951, 2952, 2953 (42 U.S.C. 2071, 2073, 2201, 2232, 2233,
2282, 2297f); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242,
as amended, 1244, 1245, 1246, (42 U.S.C. 5841, 5842, 5845, 5846).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.61 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

12. Section 70.1 is amended by revising paragraph (a) and adding
paragraph (d) to read as follows:

Sec. 70.1 Purpose.

(a) Except as provided in paragraphs (c) and (d) of this section,
the regulations of this part establish procedures and criteria for the
issuance of licenses to receive title to, own, acquire, deliver,
receive, possess, use, and transfer special nuclear material; and
establish and provide for the terms and conditions upon which the
Commission will issue such licenses.
* * * * *
(d) As provided in part 76 of this chapter, the regulations of this
part establish procedures and criteria for physical security and
material control and accounting for the issuance of a certificate of
compliance or the approval of a compliance plan.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

13. The authority citation for Part 71 is revised to read as
follows:

Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242,
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 71.97 also issued under sec. 301, Pub. L. 96-295, 94
Stat. 789-790.

14. Section 71.0 is amended by adding paragraph (e) to read as
follows:

Sec. 71.0 Purpose and scope.

* * * * *
(e) The regulations in this part apply to any person required to
obtain a certificate of compliance or an approved compliance plan
pursuant to part 76 of this chapter if the person delivers radioactive
material to a common or contract carrier for transport or transports
the material outside the confines of the person's plant or other
authorized place of use.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

15. The authority citation for Part 73 is revised to read as
follows:

Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).

16. Section 73.1 is amended by adding paragraph (b)(9) to read as
follows:

Sec. 73.1 Purpose and scope.

* * * * *
(b) * * *
(9) As provided in part 76 of this chapter, the regulations of this
part establish procedures and criteria for physical security for the
issuance of a certificate of compliance or the approval of a compliance
plan.

PART 74--MATERIAL CONTROL AND ACCOUNTING OF SPECIAL NUCLEAR
MATERIAL

17. The authority citation for Part 74 is revised to read as
follows:

Authority: Secs. 53, 57, 161, 182, 183, 68 Stat. 930, 932, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, sec. 1701,
106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2201, 2232, 2233,
2282, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, as
amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

18. Section 74.2 is amended by adding paragraph (d) to read as
follows:

Sec. 74.2 Scope.

* * * * *
(d)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-23329. Public record. Not legal advice.