[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Notices]
[Pages 2281-2284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-424]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION


Proposed Generic Communication; Implementation of Certificate of 
Compliance Amendments to Previously Loaded Spent Fuel Storage Casks

AGENCY: Nuclear Regulatory Commission.

[[Page 2282]]


ACTION: Notice of opportunity for public comment.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
issue a regulatory issue summary (RIS) to inform addressees of 
requirements concerning the implementation of changes authorized by a 
10 CFR Part 72 dry storage cask Certificate of Compliance (CoC) 
amendment to a cask loaded under the original CoC or an earlier 
amendment thereto (``previously loaded cask''). The NRC will include 
review of this matter in future inspections to verify compliance with 
these requirements.
    This Federal Register notice is available through the NRC's 
Agencywide Documents Access and Management System (ADAMS) under 
accession number ML073541293.

DATES: Comment period expires March 31, 2008. Comments submitted after 
this date will be considered if it is practical to do so, but assurance 
of consideration cannot be given except for comments received on or 
before this date.

ADDRESSEES: Submit written comments to the Chief, Rulemaking, 
Directives and Editing Branch, Division of Administrative Services, 
Office of Administration, U.S. Nuclear Regulatory Commission, Mail Stop 
T6-D59, Washington, DC 20555-0001, and cite the publication date and 
page number of this Federal Register notice. Written comments may also 
be delivered to NRC Headquarters, 11545 Rockville Pike (Room T-6D59), 
Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. on Federal 
workdays.

FOR FURTHER INFORMATION CONTACT: Robert A. Nelson at 301-492-3294 or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

NRC Regulatory Issue Summary 2007-26

Implementation of Certificate of Compliance Amendments to Previously 
Loaded Spent Fuel Storage Casks

Addressees
    All general licensees under the provisions of Subpart K, of Part 72 
of Title 10 of the Code of Federal Regulations (10 CFR) Part 72, 
``General License for Storage of Spent Fuel at Power Reactor Sites.''
Intent
    The U.S. Nuclear Regulatory Commission (NRC) is issuing this 
regulatory issue summary (RIS) to inform addressees of requirements 
concerning the implementation of changes authorized by a 10 CFR Part 72 
dry storage cask Certificate of Compliance (CoC) amendment to a cask 
loaded under the original CoC or an earlier amendment thereto 
(``previously loaded cask''). The NRC will include review of this 
matter in future inspections to verify compliance with these 
requirements. No specific action or written response is required.
Background
    The NRC initially considered this issue after a general licensee 
sought clarification about the application of a CoC amendment to a 
previously loaded cask. Subsequently, during the May 2007 Nuclear 
Energy Institute Dry Storage Information Forum, NRC staff described 
agency requirements for the implementation of CoC amendments to 
previously loaded casks. Staff told forum participants that 10 CFR Part 
72 requires licensees to obtain NRC approval if licensees wish to apply 
any changes of a CoC amendment to a previously loaded cask, if such 
changes result in a change to the terms or conditions (including the 
technical specifications) of the CoC under which the cask was loaded.
    Some licensees have asserted that 10 CFR 72.48 allows them to apply 
some or all of the changes of a CoC amendment to a previously loaded 
cask without obtaining express NRC approval. This essentially, allows 
an ``upgrade'' of the CoC. NRC's position is that such an upgrade, if 
it involves a change to a term, condition, or specification of the CoC, 
would be tantamount to amending the design basis of the previously 
loaded cask, and as such, express NRC approval is required.
Summary of Issue
    10 CFR 72.210 grants the authority to store spent fuel in an 
independent spent fuel storage installation (ISFSI) at power reactor 
sites to persons authorized to possess or operate nuclear power 
reactors under the provisions of 10 CFR Part 50. Regulations at 10 CFR 
72.212 set forth the conditions of such a general license, including 
the condition that such spent fuel must be stored in casks, the design 
of which is approved under the provisions of 10 CFR Part 72. The NRC 
issues a CoC for each approved cask design.
    Further, 10 CFR 72.212 requires the general licensee to notify the 
NRC at least 90 days before the first storage of spent fuel under the 
general license.\1\ Thereafter, the licensee must register the use of 
each cask with the NRC no later than 30 days after using that cask to 
store spent fuel. In addition, the licensee must provide certain 
information, including the cask certificate number, model number, and 
identification number.\2\ Regulations at 10 CFR 72.212 require that 
licensees ``[p]erform written evaluations, prior to use, that establish 
that: [The] conditions set forth in the Certificate of Compliance have 
been met.'' \3\ The NRC's position is that the phrase ``prior to use'' 
means before the cask is loaded with spent nuclear fuel.
---------------------------------------------------------------------------

    \1\ 10 CFR 72.212(b)(1)(i).
    \2\ 10 CFR 72.212(b)(1)(ii).
    \3\ 10 CFR 72.212(b)(2)(i)(A).
---------------------------------------------------------------------------

    Regulations at 10 CFR 72.212 also require that any changes made to 
the written evaluation required by that section must be made in 
accordance with 10 CFR 72.48(c), the NRC regulation governing changes, 
tests, and experiments made by a licensee or a certificate holder to a 
spent fuel storage cask design.\4\ Regulations at 10 CFR 72.48(c) 
permit a licensee to make changes to a cask design, without obtaining 
express NRC approval if such changes do not require, ``a change in the 
terms, conditions, or specifications incorporated in the CoC.'' \5\
---------------------------------------------------------------------------

    \4\ 10 CFR 72.212(b)(ii).
    \5\ 10 CFR 72.48(c)(1)(ii)(B).
---------------------------------------------------------------------------

    If the CoC holder or a general licensee (through the CoC holder) 
desires to amend the CoC, such that the amendment results in a change 
to the terms, conditions, or specifications of the CoC, then the CoC 
holder must submit a proposed CoC amendment to NRC. Such an amendment 
must be approved by NRC before it can be effective.\6\ Amendments for 
each approved cask design are listed in 10 CFR 72.214.
---------------------------------------------------------------------------

    \6\ 10 CFR 72.244 and 72.246.
---------------------------------------------------------------------------

    The NRC's practice is to consider each CoC amendment as a new 
design basis. Thus, each CoC amendment requires an NRC rulemaking 
before the amendment is effective.\7\ Each CoC amendment is considered 
a separate and distinct CoC, accompanied by its own certificate 
(setting forth terms, conditions, and specifications) and safety 
evaluation report. Moreover, an amendment to a CoC may not amend all 
previous CoC amendments; thus, each succeeding amendment does not 
necessarily encompass all previous amendments.
---------------------------------------------------------------------------

    \7\ 54 FR 19379, 19380 (May 5, 1989) (``Storage casks certified 
in the future will be routinely added to the listing in Sec.  72.214 
through rulemaking procedures'').
---------------------------------------------------------------------------

    Further, a previously loaded cask is bound by the terms, 
conditions, and specifications of the CoC under which the cask was 
loaded. The applicable NRC regulation states that the licensee shall:


[[Page 2283]]


    ``Maintain a copy of the Certificate of Compliance and documents 
referenced in the certificate for each cask model used for storage 
of spent fuel, until use of the cask model is discontinued. The 
licensee shall comply with the terms and conditions of the 
certificate.'' \8\
---------------------------------------------------------------------------

    \8\ 10 CFR 72.212(b)(7).

    Therefore, a licensee seeking to implement changes from a later CoC 
amendment to a previously loaded cask must obtain NRC approval if the 
changes alter the terms and conditions of the CoC under which the cask 
was loaded. NRC approval would be in the form of an exemption.\9\ 
Specifically, the licensee would seek an exemption from the requisite 
provisions of 10 CFR 72.212 and 72.214, namely: (a) 10 CFR 72.212(a)(2) 
(i.e., general license limited to storage of spent fuel in casks 
approved under the provisions of this part); (b) 10 CFR 
72.212(b)(2)(i)(A) (i.e., perform written evaluations before use 
establishing that conditions set forth in the CoC have been met); (c) 
10 CFR 72.212(b)(7) (i.e., licensee to comply with the terms and 
conditions of the CoC); and (d) 10 CFR 72.214 (i.e., list of each 
approved CoC and CoC amendment). As an example, NRC granted an 
exemption from these regulations to a licensee, allowing the licensee 
to implement a change approved in Amendment 2 to CoC 1014, for casks 
loaded under Amendment 1 at the licensee's ISFSI.\10\
---------------------------------------------------------------------------

    \9\ 10 CFR 72.7 (``The Commission may, upon application by any 
interested person or upon its own initiative, grant such exemptions 
from the requirements of the regulations in this part as it 
determines are authorized by law and will not endanger life or 
property or the common defense and security and are otherwise in the 
public interest'').
    \10\ 71 FR 70551 (December 5, 2006).
---------------------------------------------------------------------------

    Some general licensees have asserted that 10 CFR 72.48 provides a 
basis to apply CoC amendment changes to a previously loaded cask, 
without express NRC approval, even if such changes result in a change 
to the terms, conditions, or specifications of the CoC under which the 
cask was loaded. The NRC does not interpret 10 CFR 72.48 (nor 10 CFR 
72.212) to allow for such a cask upgrade without express NRC approval. 
The only reference to 10 CFR 72.48 in 10 CFR 72.212 is that the 
licensee ``shall evaluate any changes to written evaluations required 
by [10 CFR 72.212(b)(2)(i)] using the requirements of Sec.  72.48(c).'' 
\11\ Section 72.48(c) does not expressly refer to previously loaded 
casks. It also does not appear to contemplate a licensee's application 
of a newer CoC amendment's changes, either in whole or in part, to a 
previously loaded cask without NRC approval. Section 72.48(c) refers 
only to ``cask design as described in the [final safety analysis 
report] FSAR.'' \12\
---------------------------------------------------------------------------

    \11\ 10 CFR 72.212(b)(2)(ii). Section 72.212(b)(2)(i)(A)-(C) 
requires the licensee to perform written evaluations, before cask 
use, that: (a) establish that the conditions set forth in the CoC 
have been met; (b) the cask storage pads and areas have been 
designed to adequately support static and dynamic loads of the 
stored casks; and (c) the requirements of 10 CFR 72.104 have been 
met (10 CFR 72.104 concerns limiting radiation exposure from ISFSI 
operations).
    \12\ 10 CFR 72.48(c)(1).
---------------------------------------------------------------------------

    The October 4, 1999, Statement of Consideration to the rule that 
revised 10 CFR 72.48 explained the purpose of 10 CFR 72.48(c) as 
establishing the conditions that a licensee must meet to: (a) Make 
changes to cask design as described in the FSAR; (b) make changes to 
the procedures as described in the FSAR; or (c) conduct tests or 
experiments not described in the FSAR, without prior NRC approval.\13\ 
Specifically, those conditions are that the change, test, or experiment 
will not require a change in the technical specifications, terms, 
conditions or specifications incorporated in the CoC, or will not meet 
any of the criteria in 10 CFR 72.48 paragraph (c)(2).\14\ Failure to 
meet these conditions will require the licensee to seek NRC approval. 
By these criteria, any ``upgrade'' to the design basis of a previously 
loaded cask that requires a change to the terms, conditions, or 
specifications of that cask's CoC will require express NRC approval 
before the ``upgrade'' can be implemented.
---------------------------------------------------------------------------

    \13\ 64 FR 53582, 53609 (October 4, 1999).
    \14\ Paragraph (c)(2) of 10 CFR 72.48 lists additional criteria 
which, if triggered, require a licensee or certificate holder to 
obtain NRC approval for the desired change, test, or experiment, 
e.g., the change, test, or experiment results ``in more than a 
minimal increase in the frequency of occurrence of an accident 
previously evaluated in the FSAR (as updated).'' 10 CFR 
72.48(c)(2)(i).
---------------------------------------------------------------------------

    Certainly, upon NRC approval of a new CoC amendment for a 
particular cask model, a licensee can load an empty cask of that model 
under that amendment, provided the loading is otherwise in accordance 
with 10 CFR 72.212. A previously loaded cask, however, relies upon an 
earlier design basis, and the licensee's use of that previously loaded 
cask is bounded by the terms, conditions, and specifications of the CoC 
under which that cask was loaded.
Backfit Discussion
    This RIS only provides clarification of 10 CFR part 72, subparts L 
and K requirements. This RIS does not impose a regulatory staff 
position or interpretation of the Commission's rules that is either new 
or different from a previously applicable position. Further, this RIS 
requires no action or written response. Any addressee action in 
accordance with the information contained in this RIS is strictly 
voluntary. Thus, under the provisions of 10 CFR 50.109 and 72.62 this 
RIS does not constitute a backfit. Consequently, the staff did not 
perform a backfit analysis.
Federal Register Notification
    A notice of opportunity for public comment on this RIS was 
published in the Federal Register (xx FR xxxxx), on {January xx, 
2008{time} . Comments were received from {indicate the number of 
commentors by type{time} . The staff considered all comments. The 
staff's evaluation of the comments is publicly available through NRC's 
Agencywide Documents Access and Management System under Accession No. 
ML 

.
Congressional Review Act
    This RIS is not a rule as designated by the Congressional Review 
Act (5 U.S.C. 801-808), and therefore it is not subject to the Act.
Paperwork Reduction Act Statement
    This RIS does not contain new or amended information collection 
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3520). Existing requirements were approved by the Office of 
Management and Budget (OMB), approval number 3150-0011, which expires 
on June 30, 2010, and 3150-0132, which expires on April 30, 2008.
Public Protection Notification
    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.
Contact
    Please direct any questions about this matter to the technical 
contact listed below or to the appropriate regional office.

Michael J. Case, Director, Division of Policy and Rulemaking, Office of 
Nuclear Reactor Regulation.
E. William Brach, Director, Division of Spent Fuel Storage and 
Transportation, Office of Nuclear Material Safety and Safeguards.

    Technical Contact: Robert A. Nelson, NMSS, (301) 492-3294.
    Enclosure: ``Recently Issued FSME/NMSS Generic Communications.''

End of Draft Regulatory Issue Summary.


[[Page 2284]]


    Documents may be examined, and/or copied for a fee, at the NRC's 
Public Document Room at One White Flint North, 11555 Rockville Pike 
(first floor), Rockville, Maryland. Publicly available records will be 
accessible electronically from the Agencywide Documents Access and 
Management System (ADAMS) Public Electronic Reading Room on the 
Internet at the NRC Web site, http://www.nrc.gov/NRC/ADAMS/index.html. 
If you do not have access to ADAMS or if you have problems in accessing 
the documents in ADAMS, contact the NRC Public Document Room (PDR) 
reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to 
[email protected].

    Dated at Rockville, Maryland, this 21st day of December 2007.

    For the Nuclear Regulatory Commission.
Thomas W. Alexion,
Acting Chief, Generic Communications Branch, Division of Policy and 
Rulemaking, Office of Nuclear Reactor Regulation.
 [FR Doc. E8-424 Filed 1-11-08; 8:45 am]
BILLING CODE 7590-01-P