Maryland Safe Energy Coalition; Denial of Petition for Rulemaking

NUCLEAR REGULATORY COMMISSION

10 CFR Part 72

[Docket No. PRM-72-1]

Maryland Safe Energy Coalition; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition

for rulemaking (PRM-72-1) from Richard Ochs submitted on behalf of the

Maryland Safe Energy Coalition. The petitioner requested several

amendments to the regulations governing the independent storage of

spent fuel in dry casks.

ADDRESSES: Copies of the petition for rulemaking, the public comments

received, and the NRC's letter to the petitioner are available for

public inspection and/or copying in the NRC Public Document Room, 2120

L Street, NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. Gordon E. Gundersen, Office of

Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission,

Washington, DC 20555-0001, telephone (301) 415-6195.

SUPPLEMENTARY INFORMATION:

The Petition

On June 23, 1993, Mr. Richard Ochs, on behalf of the Maryland Safe

Energy Coalition, filed a petition for rulemaking with the NRC.

The petition relates to generic requirements for the licensing of

independent storage of spent fuel in dry casks found in the

Commission's regulations contained in 10 CFR Part 72. In particular,

Subpart B provides information required to be submitted in a license

application, Subpart C provides requirements for the issuance and

conditions of a license, Subpart D provides the requirements for the

records that must be kept by a licensee, and Subpart E provides

requirements for evaluation of the storage facility site.

The petitioner requested that the NRC amend 10 CFR Part 72 to read

as follows:

1. In Sec. 72.22(e)(2), ``Contents of application: General and

financial information,'' add ``Specify the planned life of the ISFSI.''

2. In Sec. 72.22(e)(3), ``Contents of application: General and

financial information,'' change ``after the removal of spent fuel and/

or high-level radioactive waste'' to ``if the spent fuel and/or the

high-level radioactive waste is removed.''

3. In Sec. 72.42, ``Duration of license; renewal,'' add a new

paragraph (d) to read ``No license will be issued before 90 days after

the final safety evaluation report (SER) is published.''

4. In Sec. 72.44(c)(3), ``License conditions,'' add paragraph (v)

to read ``dry storage casks must be monitored continuously for

radioactivity at the exit cooling vents.''

5. In Sec. 72.46(d), ``Public hearings,'' add ``The time prescribed

for a notice of opportunity for a hearing or petition for leave to

intervene will extend from the notice of proposed action through 90

days after the final SER is published.''

6. In Sec. 72.72(a), ``Material balance, inventory, and records

requirements for stored materials,'' after the first sentence add ``The

records must include the history and condition of all spent fuel

assemblies including a description of any defective fuel, such as fuel

that is cracked, swollen, blistered, pinholed, or offgassing.''

7. In Sec. 72.104(a) ``Criteria for radioactive materials in

effluents and direct radiation from ISFSI or MSR,'' in place of

``real'' put ``maximally exposed''; after ``individual'' add ``or

fetus''; change ``25 mrem'' to ``5 mrem''; change ``75 mrem'' to ``15

mrem''; and change ``25 mrem'' to ``5 mrem''. The sentence would then

read, ``* * * dose equivalent to any maximally exposed individual or

fetus who is located beyond the controlled area must not exceed 5 mrem

to the whole body, 15 mrem to the thyroid and 5 mrem to any other organ

* * * ''

This petition for rulemaking stems from earlier actions regarding

the Calvert Cliffs Independent Spent Fuel Storage Installation (ISFSI).

On December 21, 1992, the petitioner filed a petition requesting that

the NRC institute a proceeding pursuant to Sec. 2.206 with regard to

the Calvert Cliffs ISFSI. In acknowledging the receipt of the December

21, 1992, petition, the Director, Office of Nuclear Material Safety and

Safeguards, indicated that to the extent it addressed generic issues

related to dry cask storage, the appropriate course of action would be

to file a petition for rulemaking. The Director's decision dated August

16, 1993, denied the Sec. 2.206 petition, Baltimore Gas and Electric

Company (Calvert Cliffs Independent Spent Fuel Storage Installation),

DD-9-14 (August 16, 1993); 58 FR 44863 (August 25, 1993). This

rulemaking petition filed on June 23, 1993, addresses many of the

generic issues that were raised in the December 21, 1992, Sec. 2.206

petition.

Basis for Request

As a basis for the requested action, the petitioner stated that, as

an environmental consumer organization, the Maryland Safe Energy

Coalition is interested in the minimization and safe storage of nuclear

waste including spent fuel at nuclear power plant sites in general.

The petitioner indicated that it is particularly concerned about

spent fuel storage at the Calvert Cliffs Nuclear Power Plant, which is

operated by Baltimore Gas and Electric Company (BG&E). The petitioner

stated that even though the spent fuel at Calvert Cliffs is stored

under a specific Part 72 license, many of the generic requirements

proposed by the petitioner would be the same or similar to the specific

requirements applicable to independent spent fuel storage at Calvert

Cliffs.

Public Comments on the Petition

A notice of filing of petition for rulemaking was published in the

Federal Register on September 8, 1993 (58 FR 47222). Interested persons

were requested to submit written comments or suggestions concerning the

petition by November 22, 1993. The NRC received five comment letters

from the industry and industrial associations, four from individuals,

one from an environmental group, and two from governmental agencies.

The commenters were evenly split, six supporting all or parts of the

petition and six rejecting the petition. The supporters' comments

generally supported the additional 90 days to review the Safety

Evaluation Report (SER), the need for records because of the

uncertainty of knowing how long the spent fuel will be stored, the need

for continuously monitoring radiation leaving storage cask vents, and

lower radiation limits. The commenters objecting to the petition were

more specific, often citing the Director's decision under Sec. 2.206,

Baltimore Gas & Electric Co. (Calvert Cliffs Independent Spent Fuel

Storage Installation), DD-93-14, August 16, 1993. Concerning extending

the opportunity for hearing or petition to 90 days after the final SER

is issued, the objecting commenters cited the NRC hearing and petition

processes as providing ample opportunity for public participation. In

refuting the lower radiation limits, the objectors cited studies and

reports by respected organizations and other regulations

[[Page 38287]]

including EPA's 40 CFR Part 190 and the recently revised 10 CFR Part

20. Additional information was also received from the petitioner. The

petition and the comments received in response to the notice of filing

are available for inspection in the NRC Public Document Room identified

above.

Reasons for Denial

The NRC has considered the petitioner's requested amendments, the

public comments received, and other related information. The following

discussion addresses each of the seven parts of the petitioner's

requested amendments quoted above and the NRC's response.

Part 1: The petitioner requests that Sec. 72.22(e)(2) be revised by

adding ``Specify the planned life of the ISFSI.''

In the existing Sec. 72.22(e), there is already the requirement for

the applicant to specify the period of time for which the license is

requested. The petitioner's request is therefore unnecessary and

redundant because the applicant is already required to specify the

planned life of the ISFSI, that is, the period of time for which the

license is requested.

Part 2: The petitioner requests that wording of Sec. 72.22(e)(3) be

changed from ``after the removal of spent fuel and/or high-level

radioactive waste'' to ``if the spent fuel and/or the high-level

radioactive waste is removed.''

DOE is required by the Nuclear Waste Policy Act of 1982 to accept

spent fuel for ultimate disposal. Moreover, the Commission made a

generic determination in its Waste Confidence Decisions (September 18,

1990; 55 FR 38474 and August 31, 1984; 49 FR 34694) that there is

reasonable assurance that safe disposal is technically feasible and

will be available within the first quarter of the 21st century. The NRC

therefore does not believe it is either necessary or appropriate to

revise the existing wording of the regulation as requested by the

petitioner.

Part 3 and Part 5: The petitioner requests a new paragraph (d) be

added to Sec. 72.42 to read ``No license will be issued before 90 days

after the final safety evaluation report (SER) is published.'' The

petitioner believes that significant new issues will be contained in

the final SER. The petitioner also requests that the following be added

to Sec. 72.46(d): ``The time prescribed for a notice of opportunity for

a hearing or petition for leave to intervene will extend from the

notice of proposed action through 90 days after the final SER is

published.'' The petitioner states that if a notice of opportunity for

a hearing or intervention is limited to a short period after the

license application, interested parties may be prevented from obtaining

a hearing based on the second or final SER. Information in the latter

safety reports may impact on the advisability of issuing a license. The

public should have the right and opportunity to comment on the final

Safety Analysis Report (SAR) and SER before a license is issued.

An applicant for a site-specific dry cask storage license is

required by Sec. 72.24 to submit a detailed safety analysis report

(SAR) with the application for license to the NRC. The applicant's SAR

contains the detailed basis for requesting a license and, more

particularly, for demonstrating compliance with NRC licensing

standards. Following receipt of an application, the NRC publishes a

notice of docketing an application for an ISFSI in the Federal Register

as required by Sec. 72.16(e). This notice, which may be combined with a

notice of opportunity for a hearing, will typically indicate where a

copy of the detailed SAR may be examined. An individual is allowed 30

days from the notice of proposed action to request that NRC grant a

hearing in accordance with Sec. 2.105 and Sec. 2.1107. The 30-day

period is provided so that the individual can review the license

application and SAR and determine whether to request a hearing or

intervention. The SAR will provide ample information for the individual

to make the determination. At the same time, the NRC technical staff

will commence its review of the SAR and other relevant documents and

preparation of an SER. These documents and the license are placed in

the NRC Public Document Room and the Local Public Document Room near

the licensee site where they are also available for review. Should the

SER contain a new issue (as opposed to new evidence on an issue

apparent from the SAR) pertinent to the requested license, an

interested party could seek late intervention or submit a late-filed

contention as allowed by Sec. 2.714. Finally, a party can petition the

NRC to modify a license if new information comes to light after the

license is issued. Thus, an individual has ample opportunity to

participate in the ISFSI licensing process and to review and raise

issues concerning the SER. Adding another 90-day delay in issuing the

license would not significantly improve the process for licensing the

safe operation of an ISFSI.

Part 4: The petitioner requests a new paragraph (v) be added to

Sec. 72.44(c)(3) to read ``dry storage casks must be monitored

continuously for radioactivity at the exit cooling vents.'' The

petitioner states that the exit vents are the most likely location of

radioactive venting, and it is therefore logical that monitors would be

required at these locations.

NRC regulations already require that the license (or Certificate of

Compliance in the case of an NRC approved cask) include surveillance

and monitoring requirements to determine when corrective actions need

be taken to maintain safe storage conditions. See, e.g., 10 CFR

72.122(h)(4). In addition, radiation monitoring and environmental

monitoring programs are also already required (e.g., 10 CFR 72.126),

and these programs can be expected to detect any radiation leak in

excess of NRC limits from an NRC-approved cask. Furthermore, the NRC-

approved cask designs which use cooling vents and air flow between the

fuel canister and the concrete biological shield for cooling also are

designed to require double seal closure welds on the canister. These

welds are inspected and the canister leak tested after being loaded.

There is no known long-term degradation mechanisms which would cause

the weld to fail within the design life of the canister. Therefore, the

regulation proposed by the petitioner is not needed.

Part 5: The response to this part has been combined with the

response to Part 3 and is addressed above.

Part 6: The petitioner requests that the following be added after

the first sentence in Sec. 72.72(a): ``The records must include the

history and condition of all spent fuel assemblies including a

description of any defective fuel, such as fuel that is cracked,

swollen, blistered, pinholed, or offgassing.'' The petitioner states

that defective fuel can cause problems for safe storage; therefore, the

history and condition of all spent fuel should be documented.

NRC regulations already require that the license (or Certificate of

Compliance in the case of an NRC-approved cask) must include

specifications for the conditions of fuel assemblies to be loaded into

storage casks. See, e.g., 10 CFR 72.44(c). These regulations also

require that licensees must demonstrate in procedures and records that

the fuel load meets the cask design criteria. In addition, licensees

must conduct loading operations in accordance with written procedures

which must be specific enough to demonstrate that only fuel assemblies

that meet the cask design criteria can be loaded. Licensees are

required to maintain records, including the condition of the fuel, of

[[Page 38288]]

all fuel assemblies in storage casks or in the pool. See, e.g., 10 CFR

Part 50 Appendix B, XVII, ``Quality Assurance Records,'' and 10 CFR

72.174, ``Quality Assurance Records.'' Therefore, additional records as

proposed by the petitioner are not necessary.

Part 7: The petitioner requests the following revisions to

Sec. 72.104(a): in place of ``real'' put ``maximally exposed''; after

``individual'' add ``or fetus''; change ``25 mrem'' to ``5 mrem'';

change ``75 mrem'' to ``15 mrem''; and change ``25 mrem'' to ``5

mrem.'' The sentence will then read, ``* * * dose equivalent to any

maximally exposed individual or fetus who is located beyond the

controlled area must not exceed 5 mrem to the whole body, 15 mrem to

the thyroid and 5 mrem to any other organ * * *''

The change of the word ``real'' to ``maximally exposed'' in

Sec. 72.104(a) is not needed. In the regulation, the word ``real'' in

the phrase ``The annual dose equivalent to any real individual who is

located beyond the controlled area * * *'' refers to an individual who

lives closest to the boundary of the controlled area. This individual

is, in general, the maximally exposed individual because other

individuals are further away from the controlled area. If the

petitioner's suggested words ``maximally exposed'' were adopted, it

could mean that an imaginary individual would be continually present at

the boundary of the controlled area. The NRC regulates radiation doses

on the basis of real people in proximity to the boundary of the

controlled area.

Section 72.104(a) establishes the bases for the amount of

radioactive materials permitted in ISFSI effluents and direct radiation

from an ISFSI. It imposes limits on the annual dose equivalent that is

received by an individual who is located beyond the controlled area.

The petitioner referred to a 1990 study by Alice Stewart that allegedly

supports the conclusion that the standards incorporated in

Sec. 72.104(a) are too high for a developing fetus, women, and

children. The petitioner cited additional references during the comment

period.

Section 72.104(a) does not incorporate exposure limits that are

unique to ISFSI operation. Rather, the exposure limits used in Part 72

are based on the Environmental Protection Agency's (EPA) Environmental

Radiation Standards for fuel cycle facilities specified in 40 CFR Part

190. 45 FR 74693 (November 11, 1980). Moreover, the EPA, commenting on

the proposed 10 CFR Part 72, stated: ``Our only comment of substance

concerns your requirement that such independent storage facilities

provide radiation protection consistent with the Agency's public health

protection standards for the Uranium Fuel Cycle (40 CFR 190). We

generally support your use of these requirements.''

The Sec. 72.104(a) exposure limits are also consistent with the

recent revision of 10 CFR Part 20--Standards for Protection Against

Radiation which became effective on January 1, 1994. This revision was

comprehensive in scope and reflects state-of-the-art data on radiation

protection. This revision was based on recommendations and studies of

expert groups through 1990, including the International Commission on

Radiological Protection, the National Council on Radiation Protection

and Measurements, the United Nations Scientific Committee on the

Effects of Atomic Radiation, and the National Academy of Science's

Committee on the Biological Effects of Ionizing Radiation (BEIR). Among

other things, these studies analyzed the data on radiation exposure to

a developing fetus. In sum, the NRC's radiation protection standards

are based on a body of recent, authoritative, and substantial data. The

petition fails to provide an adequate basis for its requested revisions

to Sec. 72.104(a).

It should also be noted that both 10 CFR Parts 20 and 72 have

requirements to keep radiation exposures as low as reasonably

achievable (ALARA). Experience to date with ISFSI operations has

demonstrated that due to the conservative ISFSI designs and the

application of ALARA requirements, the radiation levels associated with

ISFSI operations are in fact well below regulatory limits.

For the foregoing reasons, the petition is denied.

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

For the Nuclear Regulatory Commission.

James M. Taylor,

Executive Director for Operations.

[FR Doc. 95-18318 Filed 7-25-95; 8:45 am]

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