[Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
[Notices]
[Pages 8097-8100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3374]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-313/368, 72-1007]
In the Matter of Entergy Operations, Inc. (Arkansas Nuclear One);
Sierra Nuclear Corporation; Director's Decision Under 10 CFR 2.206
P(DD-95-03)
Notice is hereby given that the Director, Office of Nuclear
Material Safety and Safeguards, has taken action with regard to the
Petition of July 5, 1994, by Dennis Dums, on behalf of the Wisconsin
Citizen's Utility Board, requesting that the Chairman exercise his
authority to: (1) Determine the applicability of 10 C.F.R. 72.48 to 10
C.F.R. part 72 subparts K and L; (2) determine whether Entergy
Operations, Inc. (Entergy) is in violation of any U.S. Nuclear
Regulatory Commission regulations regarding use of 10 C.F.R. 72.48 to
make modifications to the VSC-24 cask for use at Arkansas Nuclear One
(ANO); (3) order ANO to cease using 10 C.F.R. 72.48 until NRC
determines whether or not it is applicable; (4) order Sierra Nuclear
Corporation to cease construction of VSC-24 casks for use at ANO that
are being constructed based on ANO's 10 C.F.R. 72.48 evaluation. Notice
of Receipt of Petition for Director's Decision under 10 C.F.R. 2.206,
dated August 16, 1994, was published in the Federal Register on August
24, 1994 (59 FR 43594).
The Director of the Office of Nuclear Material Safety and
Safeguards has determined to grant in part and deny in part the actions
requested by the Petition. The reasons for this decision are explained
in the ``Director's Decision under 10 C.F.R. 2.206'' (DD-95-03), which
is published below.
A copy of the decision will be filed with the Office of the
Secretary for the Commission in accordance with 10 C.F.R. 2.206(c) of
the Commission's regulations. As provided by this regulation, the
decision will constitute the final action of the Commission 25 days
after the date of issuance of the decision unless the Commission on its
own motion institutes a review of the decision within that time.
Copies of the Petition, dated July 5, 1994, and the Notice of
Receipt of Petition for Director's Decision under 10 C.F.R. 2.206 that
was published in the Federal Register on August 24, 1994 (59 FR 43594),
and other documents related to this Petition are available in the NRC
Public Document Room, the Gelman Building, 2120 L Street, NW. (Lower
Level), Washington, DC 20555 and Local Public Document Room at the
Tomlinson Library, Arkansas Tech University, Russellville, Arkansas
72801.
Dated at Rockville, Maryland, this 31st day of January 1995.
For the Nuclear Regulatory Commission.
Robert M. Bernero,
Director, Office of Nuclear Material Safety and Safeguards.
Introduction
By Petition dated July 5, 1994 (Petition), Dennis Dums, on behalf
of the Wisconsin Citizen's Utility Board (Petitioner), filed a request
pursuant to 10 C.F.R. 2.206 that the U.S. Nuclear Regulatory Commission
(NRC): (1) Determine the applicability of 10 C.F.R. 72.48 to 10 C.F.R.
Part 72 Subparts K and L; (2) determine whether Entergy Operations,
Inc. (Entergy) is in violation of any NRC regulations regarding use of
10 C.F.R. 72.48 to make modifications to the VSC-24 cask for use at
Arkansas Nuclear One (ANO); (3) order ANO to cease using 10 C.F.R.
72.48 until NRC determines whether or not it is applicable; (4) order
Sierra Nuclear Corporation (SNC) to cease construction of VSC-24 casks
for use at ANO that are being constructed based on ANO's 10 C.F.R.
72.48 evaluation.
By letter to Mr. Dennis Dums, dated August 16, 1994, I acknowledged
receipt of the Petition. Notice of receipt was published in the Federal
Register on August 24, 1994 (59 FR 43594). For the reasons given below,
I have now concluded that the Petitioner's request should be granted in
part and denied in part.
Background
The Petitioner submitted its July 5, 1994, request to NRC in
connection with an earlier letter to NRC dated June 2, 1994, from
Entergy, an NRC licensee under 10 CFR part 50, which operates ANO Units
1 and 2 near Russellville, Arkansas. In its June 2 letter, Entergy had
briefly described its plans for spent nuclear fuel storage at ANO,
involving use of the VSC-24 dry cask, in accordance with the general
license of 10 CFR Part 72, Subpart K. Entergy had also stated in the
June 2 letter that its use of the VSC-24 would involve minor changes to
the cask design. According to Entergy's July 2 letter, the specific
changes involved lengthening the approximately eighteen foot VSC-24 by
about 11 inches in order to accommodate the slightly longer ANO Unit 2
fuel.
The June 2 letter went on to advise NRC of Entergy's conclusions
that section 72.48 of the Commission's regulations applied to the
changes Entergy proposed to make to the cask for use at ANO. It was
this statement by Entergy regarding the applicability of 72.48 that
apparently prompted the Petition that is the subject of this decision.
Section 72.48 of the Commission's regulations covers ``Changes,
tests, and experiments'' that may be made by the ``holder of a license
issued under this part'' without prior Commission
[[Page 8098]] approval.\1\ Specifically with regard to its
determination to use section 72.48, Entergy's June 2 letter contended
that the minor changes proposed for the VSC-24 cask were covered by a
``plain reading'' of the regulations. It argued the general license
issued under 10 CFR part 72 was a license ``issued under this part,''
and that the minor changes to the VSC-24 by Entergy, as the license
``holder,'' could therefore be made to address site-specific
considerations ``as determined necessary'' by Entergy. It also
contended its approach was consistent with the regulatory background of
the general license, particularly the Commission's objective to provide
for ``a regulatory framework allowing on-site spent fuel storage
`without, to the maximum extent practicable, the need for additional
site-specific approvals by the Commission.' (55 FR 29181).'' Entergy
Letter at 2.
\1\In particular, section 72.48(a)(1) provides in pertinent part
as follows:
The holder of a license issued under this part may:
(i) Make changes in the ISFSI [i.e., independent spent fuel
storage installation] * * * described in the Safety Analysis Report
* * *
* * * without prior Commission approval, unless the proposed
change * * * involves a change in the license conditions
incorporated in the license, an unreviewed safety question, a
significant increase in occupational exposure or a significant
unreviewed environmental impact.
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It is the foregoing determination by Entergy with which the
Petition takes issue.
The Petition asserts as bases for its requests that: Entergy is
currently pursuing spent fuel storage at ANO through use of 10 CFR
Subparts K and L; ANO currently intends to utilize the VSC-24
constructed by vendor SNC under an SAR submitted in October 1991, and
safety evaluation report (SER), issued by the NRC in April 1993; and
NRC response, dated January 31, 1994, to an October 13, 1993, public
request for information, stated that Subparts K and L of 10 CFR Part 72
are silent on cask SAR and certificate changes after the final rule; an
ANO request for a rule exemption to 10 CFR 72.234(c) was granted by the
NRC to allow for the fabrication of four VSC-24 casks to the longer
length prior to NRC approval of SNC's June 14, 1993, submittal of
Revision 1 to the 1991 VSC-24 Cask SAR; a February 14, 1994, memorandum
to NRC Assistant General Counsel Treby requested a legal interpretation
of the applicability of 10 CFR 72.48 to general licenses issued under
10 CFR 72.210; a May 19, 1994, meeting was held regarding SNC's
revisions to the VSC-24 SAR and the applicability of 10 CFR 72.48 to
general license users, as well as a June 3, 1994, memorandum regarding
this meeting which stated that ``the licensee can make its own
interpretation of the regulations;'' and a letter dated June 2, 1994,
from Entergy to the NRC which stated that Entergy has directed SNC to
fabricate all fourteen planned casks with the increased length and that
Entergy plans to continue to conduct evaluations in accordance with 10
CFR 72.48.
Entergy has not filed any comments with the NRC following
publication of the Petition.
Discussion
As the discussion that follows will set forth in detail, we have
determined that ANO, as a general licensee under 10 C.F.R. 72.210, can
make use of 10 CFR 72.48. This determination is based first on the
words of 10 C.F.R. 72.48 itself which are fully consistent with use of
the authority in that section by a general licensee. Second, the
determination is based on regulatory policy considerations. These
include the extensive NRC safety review at the time of cask approval,
the limited nature of the subsequent changes permitted under 10 C.F.R.
72.48, and the fact that NRC regulations in other contexts and over
many years have permitted utilities such as ANO to make similar types
of changes to nuclear facilities that involve safety issues previously
reviewed by NRC.
This approach is well suited to the 10 C.F.R. Part 72 general
license framework, especially given the Congressional purpose
underlying the Nuclear Waste Policy Act of 1982 that directed the NRC
to establish a licensing framework for spent fuel storage technologies
that can be approved by the Commission for use at reactor sites
``without, to the maximum extent practicable, the need for additional
site-specific approvals by the Commission'' (55 FR 29181). Because 10
C.F.R. 72.48 permits certain changes by a licensee without Commission
approval, making it available to general licensee's will further this
Congressional purpose.
A. The Language of Section 72.48.
An analysis of the pertinent NRC regulations regarding use of 10
C.F.R. 72.48 by a general licensee shows that ANO's use of that
authority is covered by the regulations. The relevant regulations and
our analysis of them are given below.
10 CFR 72.48(a)(1) provides as follows:
The holder of a license issued under this part may: (i) Make
changes in the ISFSI * * * described in the Safety Analysis Report, * *
* (iii) * * * without prior Commission approval, unless the proposed
change, test or experiment involves a change in the license conditions
incorporated in the license, an unreviewed safety question, a
significant increase in occupational exposure or a significant
unreviewed environmental impact. (Emphasis added.)
Further 10 CFR 72.210 provides as follows:
A general license is hereby issued for the storage of spent fuel in
an independent spent fuel storage installation at power reactor sites
to persons authorized to possess or operate nuclear power reactors
under Part 50 of this chapter. (Emphasis added.)
In order to determine whether 10 C.F.R. 72.48 can be interpreted to
cover the general license in section 72.210, the first question is
whether the general licensee is ``the holder of a license issued under
this part,'' as required for the application of 10 CFR 72.48. We think
the language of Sec. 72.210 answers this question. The phrase ``[a]
general license is hereby issued,'' leaves no doubt the general license
is ``a license issued under this part.'' Because a general licensee is
``the holder of a license issued under this part,'' Sec. 72.48(a)(1)
therefore applies.
The second question, in order to determine if 10 CFR 72.48 can be
interpreted to apply to a general license, is whether changes to a
certified cask by a general licensee can appropriately be termed
``changes in the ISFSI * * * described in the Safety Analysis Report,''
as required for the application of 10 CFR 72.48. We think the language
of Sec. 72.210 also resolves this issue. Specifically, the regulatory
language of the general license authorizes ``storage * * * in an
independent spent fuel storage installation * * * in casks approved
under the provisions of this part.''\2\ (Emphasis added.) The ISFSI
under the general license incorporates the NRC approved casks. Further
the NRC's approved casks under the general license are ISFSI components
described in a safety analysis report and, specifically, in the cask
vendor safety analysis report (SAR).\3\ Therefore, changes to an NRC-
approved cask, used in an ISFSI, by the general licensee literally are
``changes in the ISFSI * * * described in the Safety Analysis Report,''
and therefore are reasonably [[Page 8099]] covered by the words of
section 72.48(a)(1).\4\
\2\See 10 CFR 72.212(a)(2) (``This general license is limited to
storage of spent fuel in casks approved under the provisions of this
part.'')
\3\See 10 CFR 72.230(a)(``A safety analysis report describing
the proposed cask design and how the cask should be used to store
spent fuel safely must be included with the application.'')
\4\Commission policy already permits changes to a cask design
approved by NRC in a site-specific licensing proceeding; this
determination results in similar treatment for designs approved in
rulemaking.
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B. Regulatory Policy Considerations
The foregoing analysis of the applicable regulations is fully
supported by the policy underlying NRC's program for generic cask
approvals. In particular, NRC generic approval of a cask certifies the
cask for use under a range of environmental conditions sufficiently
broad to encompass most sites within the United States, by using
conservative requirements that make safety of an approved cask
independent of the effects of site-specific phenomena. During the
review of the SAR, NRC considers all credible accidents that could harm
the cask. We analyze: drops, tipovers, lighting, floods, high and low
temperatures, tornadoes, explosions, and other conditions. Using the
safety analyses relied on by the NRC for the generic approval, a
general licensee must thereafter establish that the cask is suitable
for the environmental conditions of the licensee's site. However, use
of the generically approved cask does not require additional NRC site-
specific approvals, provided the conditions in the general license and
the cask certificate are met.
The NRC's generic approval of a dry cask, without any site-specific
approval, fulfills the express intent of the Congress. In the Nuclear
Waste Policy Act of 1982, Congress directed the government (NRC and the
Department of Energy) to establish a program allowing the NRC to
approve spent fuel storage technologies ``by rule * * * without, to the
maximum extent practicable, the need for additional site-specific
approvals by the Commission.'' 42 U.S.C. 10198(a). If NRC were to
require site-specific Commission approval of every change to an
approved cask by a general licensee--even changes that did not involve
any site-specific unreviewed environmental condition or safety issue--
then its action could be viewed as seriously undermining the statutory
policy supporting general cask approvals without, to the maximum extent
practicable, requiring additional NRC site-specific approvals.
10 CFR 72.48 is limited to changes that do not involve ``a change
in the license conditions incorporated in the license, an unreviewed
safety question,\5\ a significant increase in occupational exposure or
a significant unreviewed environmental impact.'' If the proposed change
involves a generic change to the certificate of compliance or any of
the certificate's conditions then an application must be filed with the
Commission for approval for this generic change.
\5\Under 10 CFR 72.48, a proposed change involves an unreviewed
safety question if:
(i) the probability of occurrence or the consequences of an
accident or malfunction of equipment important to safety previously
evaluated in the Safety Analysis Report (SAR) may be increased;
(ii) the possibility for an accident or malfunction of a
different type than any evaluated previously in the SAR may be
created; or
(iii) the margin of safety as defined in the basis for any
technical specification is reduced.
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The general licensee must also satisfy other requirements under
section 72.48. For example, 10 CFR 72.48 requires that a licensee must
permanently ``maintain records of changes in the ISFSI'' which
``include a written safety evaluation that provides the bases for the
determination that the change * * * does not involve an unreviewed
safety question.'' The NRC may examine these records during an
inspection and take appropriate action if the changes made by the
licensee do not comply with the regulations. Additionally, 10 CFR 72.48
requires that the licensee must annually furnish the NRC a report
containing a brief description of the changes.
The decision whether a proposed change involves an unreviewed
safety question is made initially by the licensee but can be reviewed
by the NRC. If the NRC disagrees with the licensee's decision, the
agency may, upon review, take appropriate enforcement action. To
facilitate review of a licensee's decision during subsequent
inspections, the NRC promulgated the record keeping and reporting
requirements described above, thus requiring the licensee to maintain
records related to the licensee's decision under 10 CFR 72.48.
There is a similar rule under 10 CFR Part 50 for production and
utilization facilities. 10 CFR 50.59 allows utilities to make changes
to their power plants under circumstances comparable to those
circumstances covered by 72.48. In particular, 10 CFR 50.59
specifically allows a reactor licensee to modify its facility without
prior NRC approval unless the modification involves a change in the
technical specifications incorporated in the facility license or
involves an unreviewed safety question. The definition and criteria in
10 CFR 50.59 for identifying whether a proposed change involves an
unreviewed safety question are identical to those in 10 CFR 72.48. If
the proposed change does involve either an unreviewed safety question
or a change in the technical specifications, then the licensee must
apply for an amendment to its license. For decades the NRC has allowed
its licensees in the first instance to review proposed changes in their
facilities to determine whether changes in technical specifications are
involved or unreviewed safety questions are presented. The NRC would
not be sensibly allocating its limited resources if the agency itself
were to expressly review and approve every single facility change,
whether or not it raises an unreviewed safety question. Rather, NRC
retains an oversight function for enforcement purposes, supported by
requirements for licensees to retain and preserve all records of 50.59
changes, just as they must retain all records of 72.48 changes. See
Kelley v. Selin, No. 93-3613, Slip opinion at 11 (6th Cir., Jan. 11,
1995) (``* * * NRC's historical method of regulation * * * has long
allowed licensees to make initial determinations about changes to their
facilities and has enabled the agency to retain its enforcement power.
10 CFR 50.59.'')
Thus, for all of the foregoing reasons, we have determined that
ANO, and any other general licensee under Subpart K, can make use of
the authority in 10 CFR 72.48 to make changes that comply with the
requirements of that section. We accordingly have no basis and
therefore are declining to take enforcement action against ANO at this
time. However, in our continuing regulatory oversight of ANO and other
general licensees, we reserve the right to review any change made under
10 CFR 72.48 and take appropriate followup action.
Conclusion
Based on a review of the regulations and taking into account the
relevant policy considerations, NRC staff has determined that 10 CFR
72.48 can be used by all Part 72 licensees. Therefore, the Petitioner's
request to (1) determine the applicability of 10 CFR 72.48 to 10 CFR
Part 72, Subparts K and L; and (2) determine whether Entergy is in
violation of any NRC regulations regarding use of 10 CFR 72.48 has been
granted. Further, in light of the foregoing determination that Entergy
can make use of 10 CFR 72.48, the Petitioner's request to (3) order ANO
to cease using 10 CFR 72.48 until NRC determines whether or not it is
applicable, and (4) order Sierra Nuclear Corporation to cease
construction of VSC-24 casks for use at ANO has therefore been denied.
[[Page 8100]] Dated at Rockville, Maryland, this 31st day of
January 1995.
For the Nuclear Regulatory Commission.
Robert M. Bernero,
Director, Office of Nuclear Material Safety, and Safeguards.
[FR Doc. 95-3374 Filed 2-9-95; 8:45 am]
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