[Federal Register Volume 72, Number 205 (Wednesday, October 24, 2007)]
[Proposed Rules]
[Pages 60288-60290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20919]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 63

[Docket No. PRM-63-2]


State of Nevada; Denial of a Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: Denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
denying a petition for rulemaking submitted by the State of Nevada 
(PRM-63-2). The petition requests that NRC amend its regulations for 
the proposed geologic repository at Yucca Mountain, Nevada (YM) to 
specify the limits of permissible spent fuel storage at the YM site. 
Petitioner believes that the U.S. Department of Energy (DOE) is 
planning to construct an Aging Facility at the YM site designed to 
store 21,000 metric tons of heavy metal in what petitioner believes is 
a manifest violation of the Nuclear Waste Policy Act of 1982, as 
amended, and the Commission's regulations. NRC is denying the petition 
because NRC's current regulations are

[[Page 60289]]

consistent with law and do not permit storage of spent nuclear fuel at 
the YM site unless such storage is integral to waste handling, 
necessary treatment, and disposal at the proposed repository, including 
storage which is integral to the thermal-loading strategy for disposal 
that DOE may include in its design of the entire repository system. DOE 
must make the case, in its anticipated license application, that any 
contemplated storage of spent nuclear fuel is permissible because it is 
integral to waste handling, necessary treatment, and disposal 
activities. NRC believes that, without an application currently before 
the agency, the issues raised by the petition are best addressed during 
the agency's review of the application when a final design will be 
available and an opportunity to request a hearing will be offered.

ADDRESSES: Publicly available documents related to this petition, 
including the petition for rulemaking and NRC's letter of denial to the 
petitioner may be viewed electronically on public computers in NRC's 
Public Document Room (PDR), 01F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Publicly available documents created or 
received at NRC after November 1, 1999, are also available 
electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can gain 
entry into the NRC's Agencywide Documents Access and Management System 
(ADAMS), which provides text and image files of NRC's public documents. 
If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the PDR reference 
staff at (800) 387-4209, (301) 415-4737 or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: E. Neil Jensen, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone (301) 415-1637 or Toll Free: 1-800-368-5642, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On December 22, 2006, the State of Nevada (petitioner or the State) 
submitted a ``Petition for Rulemaking to Amend Part 63 to Clarify the 
Limits on Spent Fuel Storage at the Yucca Mountain Site'' (petition) 
which was docketed as a petition for rulemaking under 10 CFR 2.802 of 
the Commission's regulations (PRM-63-2) (available in the Agencywide 
Document Access and Management System (ADAMS) No. ML070030020). The 
State supplemented its petition by letter of January 23, 2007 
(ML070330245). The petition requests amendments to 10 CFR part 63, 
NRC's regulations governing the disposal of high-level radioactive 
waste (HLW) in a proposed geologic repository at YM. The petitioner 
believes that 10 CFR part 63 must be amended to specify the limits of 
permissible spent fuel storage at YM, together with related changes to 
10 CFR part 71.
    Petitioner asserts that, at an August 29, 2006 technical exchange 
and management meeting between NRC and DOE, DOE indicated that its 
design for the geologic repository included both a ``Receipt Facility'' 
and an ``Aging Facility'' or ``Aging Pad''. (Meeting summary, 
ML062710597). The Receipt Facility would be designed to receive 
commercial spent nuclear fuel (SNF) from off-site and prepare it for 
the Aging Facility. The Aging Facility would be designed to store 
21,000 metric tons of heavy metal (MTHM) on the YM site. See DOE, 
Office of Civilian Radioactive Waste Management, Surface Facilities 
Overview and Canister Receipt and Closure Facility, slides presented to 
NRC/DOE Technical Exchange and Management Meeting on Design Changes 
Approved Through DOE's Critical Decision (CD-1) Process, August 29, 
2006, Las Vegas, Nevada (DOE slides) (ML062510423). Petitioner further 
asserts that, in an NRC Staff response to the State's letter asking 
about what surface storage of SNF might be allowed at YM under the 
Nuclear Waste Policy Act of 1982, as amended (NWPA), 42 U.S.C 10101 et 
seq., and 10 CFR Part 63, NRC stated that surface storage is 
permissible ``to the extent such storage is integral to waste handling 
and disposal at the proposed repository,'' and that ``storage may also 
be integral to the thermal-loading strategy the applicant may adopt in 
its design of the entire repository system.'' See Letter to Robert R. 
Loux from Jack R. Strosnider, December 4, 2006 (ML062900384).
    Petitioner believes that it is unclear why a thermal loading 
strategy must necessarily require the storage of significant quantities 
of SNF on the YM site and holds that ``it is absurd to suppose that 
storage in capacities approaching anywhere near 21,000 MTHM on the Site 
could be justified as part of a `thermal loading' strategy that `is 
integral to waste handling and disposal.'' Petition at 1. Further, 
petitioner supplemented its petition to state that DOE's preliminary 
specifications for a transportation, aging and disposal (TAD) canister 
system suggest that DOE is planning on long-term storage of SNF at YM. 
See DOE, Office of Civilian Radioactive Waste Management, Civilian 
Radioactive Waste Management System: Preliminary Transportation, Aging 
and Disposal Canister System Performance Specification, Revision A, 
DOE/RW-0585, November 2006 (DOE Performance Specification) (Licensing 
Support Network No. DN20023585505).
    Petitioner believes that DOE's plans for an Aging Facility that 
could contain 21,000 MTHM are ``manifestly unlawful'' and requests that 
NRC amend 10 CFR part 63 to specify by rule the limits of permissible 
spent fuel storage at YM, together with related changes to 10 CFR part 
71. As support for its petition, the State provides an analysis of 
provisions of the NWPA which demonstrate, in petitioner's view, that 
storage of SNF at YM is unlawful. In brief, petitioner argues that the 
structure and text of the NWPA show that Congress intended the 
repository to be for disposal only. This is because Congress provided 
for a repository for disposal of SNF in Subtitle A of the statute, but 
separately provided for a limited interim storage program in Subtitle B 
and for potentially longer term storage in a monitored retrievable 
storage facility (MRS) in Subtitle C. Both Subtitle B and Subtitle C 
contain provisions which would effectively prevent storage in a state 
being considered for a repository. Petitioner points out that ``if 
Congress had intended a repository site to be used for storage, neither 
Subtitle B nor Subtitle C would have been necessary, and the statutory 
prohibition on co-location of a repository and an interim storage 
facility or MRS would have been nonsensical.'' Petition at 3. Thus, 
petitioner concludes, the structure of NWPA demonstrates that a 
repository is for disposal only.
    Petitioner requests three changes to NRC's rules. First, 10 CFR 
63.21(c)(22) (regarding the contents of the license application) would 
be amended to add a new paragraph viii at the end:

    viii. Plans for the emplacement of spent nuclear fuel in the 
underground facility within a reasonably short time after it is 
received (in no event longer than one year), and information to 
explain why any facilities for the storage of spent nuclear fuel in 
the repository operations area or on the Site are integral to safe 
waste handling and disposal in the underground facility.

    Second, 10 CFR 63.41(b) (regarding required license conditions) 
would be amended to add a new subsection (c):

    (c). The license shall include additional conditions as follows: 
(1) No spent nuclear

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fuel may be received in the geologic repository operations area, or 
on the Site, unless there is reasonable assurance that it can be 
moved into the underground facility within a reasonably short time 
(in no event later than one year after receipt); (2) no spent 
nuclear fuel may be stored in the geologic repository operations 
area, or on the Site, unless such storage is necessary for the safe 
and efficient emplacement of spent fuel in the underground facility; 
and (3) no spent nuclear fuel may be stored in the geologic 
repository operations area, or on the Site, for the purpose 
primarily of aging (cooling or radioactive decay) prior to 
emplacement in the underground facility. The foregoing conditions do 
not preclude the construction of storage space to allow retrieval of 
spent fuel after its emplacement in the underground facility or for 
the amelioration of emergency conditions associated with the 
repository's operation.

    Third, to ensure proper coordination between DOE and reactor 
licensees desirous of sending spent fuel to the repository, 10 CFR 71.5 
would be amended by adding a new subsection (c):

    (c). No licensee possessing spent reactor fuel may deliver the 
fuel to the Department of Energy or to a carrier for transport to 
Yucca Mountain, or transport the fuel to Yucca Mountain, unless the 
fuel either complies with waste disposal criteria (including thermal 
loading criteria) approved by the Commission, or the fuel is 
expected to do so within one year after receipt at the Yucca 
Mountain site. In complying with this subsection, a licensee may 
rely on compliance certifications provided by the Department of 
Energy.

Reasons for Denial

    Petitioner recognizes that NRC's regulations are currently in 
harmony with its view of what storage is permissible:

    In the preamble to the original Part 63, NRC stated that no 
license to receive waste or spent fuel would be issued until NRC is 
able to find that DOE has completed construction of sufficient 
underground storage space for initial operations, and it concluded 
that Part 63 does not allow early use of surface facilities for 
storage of spent fuel. 66 FR 55738 (November 2, 2001). This is 
consistent with the text of 10 CFR 63.41(a)(1), which provides that 
no license may be issued until NRC finds that construction of 
``[a]ny underground storage space required for initial operation 
[is] substantially complete.'' Thus, NRC's regulations appear 
consistent with NWPA in eliminating the possibility of spent fuel 
storage that is decoupled from actual repository operations and 
logistics.

    Petition at 4, n.3. Indeed, NRC recently reaffirmed this 
interpretation of its regulations when it informed petitioner that 
surface storage of spent fuel is only permissible, under 10 CFR part 
63, to the extent such storage is integral to waste handling and 
disposal at the proposed repository (including storage which is 
integral to the thermal-loading strategy the applicant may adopt in its 
design of the entire repository system). See NRC Staff Letter of 
December 4, 2006. In the preamble to NRC's final rule incorporating 10 
CFR part 63 into its regulations, the Commission stated:

    The DOE has not indicated to the Commission any intention to 
seek an authorization for early use of the surface facilities for 
storage of spent nuclear fuel. Such an authorization likely would 
necessitate a change to (or an exemption from) the regulations. 
Before NRC would make changes of this type to its regulations, NRC 
would need to publish the proposed changes and seek public comment 
(66 FR 55738; November 2, 2001).

    These statements make it clear that the Commission does not regard 
its regulations as sanctioning the type of spent fuel storage imagined 
by petitioner; i.e., storage of large amounts of spent nuclear fuel on 
an Aging Pad divorced from waste handling, necessary treatment, and 
disposal operations.
    Petitioner's concern about DOE's supposed intent to construct a 
``gigantic'' Aging Facility in violation of law apparently stems from 
information exchanged between DOE and NRC at the August 29, 2006 NRC/
DOE Technical Exchange and Management Meeting. The DOE slides presented 
design changes that DOE had approved for the repository, including the 
preliminary hazards analysis (PHA) performed as part of DOE's process 
for approving design changes. The radiological consequence analysis of 
the PHA was based on key assumptions with respect to source terms, site 
weather and the location of workers and members of the public. One of 
these assumptions was an assumption of aging pads at full capacity 
which was identified as being 21,000 MTHM. However, assumptions used in 
a hazards analysis are not the equivalent of an actual plan for SNF 
storage. Petitioner also cites DOE's draft Performance Specification 
for a TAD canister system in support of its claim that DOE is planning 
for ``an illegal Yucca aging pad.'' This document explains, inter alia, 
that a TAD canister may be aged in an aging overpack which is used to 
safely contain a loaded TAD canister on the aging pad until repository 
emplacement thermal limits are met and that it could take a long period 
of time (years) for sufficient radioactive decay to take place. 
Clearly, this document suggests that DOE plans to age some amount of 
spent nuclear fuel for some period of time on an aging pad at the 
repository but it provides no information on the actual amount or 
length of time nor explanation as to how whatever DOE is planning 
complies with 10 CFR 63.41(a). This information should be part of DOE's 
license application and will be subject to review by the NRC staff.
    As stated in NRC Staff's December 4, 2006 letter, ``NRC fully 
expects that DOE would seek authorization for a facility that complies 
with Federal law. If the application includes an aging facility, the 
NRC staff would review that facility in the context of the overall 
repository design to determine if it is integral to waste handling and 
disposal at the proposed repository * * *.'' Precisely what amount of 
spent nuclear fuel would meet that test, and precisely what amount of 
time can be justified, is an issue best resolved in the licensing 
proceeding. DOE's technical rationale supporting its intended use of 
the Aging Pad is dependent upon the actual repository design DOE 
intends to implement and will not be fully known until DOE submits its 
license application. DOE's design will be subject to scrutiny by the 
NRC staff in the licensing proceeding. Potential parties to the 
adjudicatory proceeding may seek to raise contentions on this issue if, 
in their view, DOE's case does not meet NRC's regulations.

Conclusion

    In sum, NRC's rules already bar storage of SNF at the repository 
which is not integral to waste handling, necessary treatment, and 
disposal operations. The Commission believes that, without an 
application currently before the agency, the issues raised by the 
petition are best addressed during the agency's review of the 
application when a final design will be available and an opportunity to 
request a hearing will be offered.
    For these reasons, the Commission denies PRM-63-2.

    Dated at Rockville, Maryland, this 18th day of October 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E7-20919 Filed 10-23-07; 8:45 am]
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