[Federal Register Volume 79, Number 138 (Friday, July 18, 2014)]
[Proposed Rules]
[Pages 41935-41938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16965]



10 CFR Part 72

[Docket Nos. PRM-72-7; NRC-2012-0266; NRC-2014-0067]

Spent Fuel Cask Certificate of Compliance Format and Content

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; consideration in the rulemaking 


SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) will consider in 
its rulemaking process six issues raised in a petition for rulemaking 
(PRM), PRM-72-7, submitted by Anthony Pietrangelo, on behalf of the 
Nuclear Energy Institute (NEI or the petitioner). The petitioner 
requests that the NRC amend its regulations to improve the efficiency 
of the licensing and oversight of spent fuel dry cask storage.

DATES: The docket for the petition for rulemaking, PRM-72-7, is closed 
on July 18, 2014.

ADDRESSES: Further NRC action on the issues raised by this petition can 
be found on the Federal rulemaking Web site at http://www.regulations.gov by searching on Docket ID: NRC-2014-0067, which is 
the identification for the future rulemaking.
    Please refer to Docket ID NRC-2012-0266 when contacting the NRC 
about the availability of information regarding this petition. You can 
access publicly available documents related to the petition using the 
following methods:
     Federal Rulemaking Web site: Go to: http://www.regulations.gov and search on the petition Docket ID NRC-2012-0266. 
Address questions about NRC dockets to Carol Gallagher; telephone: 301-
287-3422; email: [email protected]. For technical questions, 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at: 
1-800-397-4209 or 301-415-4737, or by email to [email protected]. 
The ADAMS accession number for each document referenced (if it is 
available in ADAMS) is provided the first time that it is mentioned in 
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Keith McDaniel, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
5252; email: [email protected].


Table of Contents

I. The Petition
II. Public Comments on the Petition
III. NRC Analysis
IV. Determination of Petition

I. The Petition

    On October 3, 2012, the NRC received a PRM filed by NEI (ADAMS 
Accession No. ML12299A380). The NEI is a nuclear energy organization 
that works on matters affecting the nuclear energy industry. The 
petitioner requests that the NRC amend part 72 of Title 10 of the Code 
of Federal Regulations (10 CFR), ``Licensing Requirements for the 
Independent Storage of Spent Nuclear Fuel, High-Level Radioactive 
Waste, and Reactor-Related Greater Than Class C Waste,'' to add a new 
rule governing spent fuel storage cask certificate of compliance (CoC) 
format and content, extend the applicability of the backfit rule to CoC 
holders, and make other changes. The petitioner states that these 
changes are needed improvements based on experience and risk insights 
gained since the 10 CFR part 72 regulations were developed in the 1980s 
and modified in 1990. The petitioner also claims that the proposed 
changes would improve regulatory efficiency and effectiveness, as well 
as serve an important safety function by allowing both industry and NRC 
resources to be focused on safety-significant information. The 
petitioner states that more efficient and effective NRC oversight of 
dry cask storage will improve implementation of dry cask storage 
requirements. Furthermore, the petitioner claims these proposed changes 
offer a holistic approach to regulatory improvements and result in a 
more risk-informed regulatory framework.
    The NRC published a notice of receipt of the petition and request 
for public comment in the Federal Register (FR) on February 5, 2013 (78 
FR 8050). After analyzing the issues raised in the petition and 
reviewing the public comments, the NRC concludes that the issues are 
appropriate for rulemaking consideration.

II. Public Comments on the Petition

    The notice of receipt of the PRM requested that interested persons 
submit comments to the NRC. The comment period closed on April 22, 
2013. The NRC received five comment letters (ADAMS Accession No. 
ML14134A072). Four letters were from members or representatives of the 
nuclear industry and one letter was from four U.S. Senators. The public 
comments supported NEI's claim that greater efficiencies were needed in 
the 10 CFR

[[Page 41936]]

part 72 licensing process and generally supported the issues raised in 
the petition.
    All five comment letters emphasized creating specific criteria for 
the format and content included in spent fuel storage cask CoCs and 
technical specifications. One comment letter suggested that this change 
would make storage cask licensing consistent with power reactor 
licensing and improve regulatory efficiency. Three comment letters 
stated that the proposed changes would create a more risk-informed 
regulatory framework that may reduce a possible backlog of cask license 
amendment reviews in the future, if, as the commenters expect, the 
number of loaded casks doubles in the next 10 years.
    One comment letter stated that the proposed changes could improve 
nuclear safety by focusing the CoC and technical specifications on 
safety significant issues. Four comment letters stated that the 
proposed changes would make dry cask licensing consistent with the 
Commission's Policy Statement on Technical Specifications Improvements 
for Nuclear Power Reactors (58 FR 39132; July 22, 1993). Finally, three 
comment letters supported applying backfit protection to CoC holders to 
create needed regulatory consistency between part 72 licensees and CoC 
    The NRC considered the public comments in its analysis of the 

III. NRC Analysis

Issue 1: Add a New Rule for CoC Format and Content

    The petitioner requests that 10 CFR part 72, subpart L, ``Approval 
of Spent Fuel Storage Casks,'' be amended to provide specific criteria 
for the format and content of the CoC for a spent fuel storage cask. 
The petitioner states that this change would improve regulatory clarity 
and stability by assuring that the level of detail in CoCs is 
consistent and risk-informed. The petitioner asserts that defining CoC 
format and content can only be effective if included as a regulation, 
rather than guidance.
    The petitioner asserts that the changes recommended by the 
petitioner related to the format will improve ease of use and ensure 
that there is clarity with respect to the division of responsibilities 
between CoC holders and licensees in implementing the CoC, which will 
enhance compliance and NRC oversight. The petitioner states that the 
additions related to the content will ensure that there is clarity for 
applicants and certificate holders with respect to the appropriate 
information to be included in the draft CoC (part of the application), 
which will improve efficiencies by focusing on the safety significant 
aspects of cask use.
    This will also reduce the number of unnecessary CoC amendments by 
eliminating the need for NRC review of information that the petitioner 
believes need not be included in many CoCs.

NRC Response to Issue 1

    The NRC accepts Issue 1 for consideration in the rulemaking 
process. The NRC agrees that adding specific criteria for CoC format 
and content to its regulations could promote consistency. The NRC also 
agrees that a change may promote efficiency in the oversight of dry 
storage, including licensing reviews. However, the NRC does not agree 
with the comment that a significant increase in expected cask loadings 
(e.g., doubling over the next decade) necessarily correlates to an 
equivalent increase in the NRC staff's review work.
    The requirements in 10 CFR part 72, subpart L, apply to approval of 
spent fuel storage casks. While the NRC issued guidance in NUREG-1745, 
``Standard Format and Content for Technical Specifications for 10 CFR 
part 72 Cask Certificates of Compliance,'' dated June 2001 (ADAMS 
Accession No. ML011940387), there are currently no specific 
requirements for the format or content of the CoC. The CoC includes the 
certificate and the associated technical specifications (usually an 
appendix to the certificate). These documents together constitute the 
approved system and procedures for spent fuel storage casks.
    The petitioner claims its request is similar to the requirements in 
10 CFR 50.36, ``Technical Specifications,'' for reactors. The NRC staff 
notes that 10 CFR 50.36 contains requirements for the content, but not 
format, of technical specifications, and that format for reactor 
technical specifications is addressed by the NRC in associated 
guidance, and not by rule.\1\ Furthermore, 10 CFR 50.50 states that the 
Commission will issue a license in such form and containing such 
conditions including technical specifications, as it deems appropriate. 
An analogous approach may be appropriate for 10 CFR part 72 as well. 
This will be evaluated further in the rulemaking process.

    \1\ See NUREG-1430, Vols. 1 and 2, Rev. 4, ``Standard Technical 
Specifications--Babcock and Wilcox Plants'' (ADAMS Accession Nos. 
ML12100A177 and ML12100A178); NUREG-1431, Vols. 1 and 2, Rev. 4, 
``Standard Technical Specifications--Westinghouse Plants'' (ADAMS 
Accession Nos. ML12100A222 and ML12100A228); NUREG-1432, Vols. 1 and 
2, Rev. 4, ``Standard Technical Specifications--Combustion 
Engineering Plants'' (ADAMS Accession No. ML12102A165 and 
ML12102A169); NUREG-1433, Vols. 1 and 2, Rev. 4, ``Standard 
Technical Specifications--General Electric Plants (BWR/4)'' (ADAMS 
Accession Nos. ML12104A192 and ML12104A193); and NUREG-1434, Vols. 1 
and 2, Rev. 4, ``Standard Technical Specifications--General Electric 
Plants (BWR/6)'' (ADAMS Accession Nos. ML12104A195 and ML12104A196).

    If the NRC determines in the rulemaking process that standardized 
format and content requirements should be developed for 10 CFR part 72, 
subpart L, the NRC may also consider development of similar regulations 
for subpart C, ``Issuance and Conditions of License.'' Specific 
licenses issued under 10 CFR part 72 also use technical specifications 
as part of their licensing basis.
    Finally, the rulemaking process may consider whether existing CoCs 
and amendments should be revised to meet any new regulations on content 
or format.

Issue 2: Add Backfit Protection to CoC Holders

    The petitioner requests that 10 CFR 72.62 be modified so that 
backfit protection is applicable to CoC holders in addition to 
licensees. The petition states that this change would improve 
consistency between the way in which specific and general part 72 
licensees, and CoC holders, are regulated, and that this revision would 
ensure that changes to CoCs are imposed only after an adequate 
justification has been developed.

NRC Response to Issue 2

    The NRC accepts Issue 2 for consideration in the rulemaking 
process. The petitioner raises regulatory stability and predictability 
concerns with respect to CoC holders. The NRC notes that the 
application of backfit protection may require revisiting the current 
NRC practice of issuing each CoC amendment as a stand-alone CoC.
    As part of the NRC's consideration of these concerns, the NRC may 
review the various approaches for addressing regulatory stability and 
predictability that the NRC has adopted in its regulations, including 
approaches such as those in 10 CFR 72.62, ``Backfitting,'' and 10 CFR 
52.63, ``Finality of Standard Design Certifications.''

Issue 3: Delete the Requirement for the Review of the Cask SER

    The petitioner requests that 10 CFR part 72, subpart K, ``General 
License for Storage of Spent Fuel at Power Reactor Sites,'' be amended 
to remove the requirement in 10 CFR 72.212(b)(6) for general licensees 
to perform a review of

[[Page 41937]]

the NRC's Safety Evaluation Report (SER) for the CoC or amended CoC 
prior to use by a general licensee. The petition asserts that this 
change would conform with a previous NRC position and would eliminate 
an unnecessary requirement. The petitioner further states that review 
of the SER is extraneous, as the SER will not contain any new 
requirements or commitments that are not already contained in the CoC 
and the Final Safety Analysis Report associated with an NRC approved 
cask design.

NRC Response to Issue 3

    The NRC accepts Issue 3 for consideration in the rulemaking 
process. In 10 CFR 72.212(b)(6), general licensees are required to 
determine whether or not the reactor site parameters are enveloped by 
the cask design bases considered in the Safety Analysis Report 
referenced in the CoC or amended CoC and the related NRC SER.
    The CoC and associated technical specifications constitute the 
system requirements for approved spent fuel storage systems. The CoC 
holder's Safety Analysis Report provides more detail about the system, 
guidance for system use, and procedures not included in the technical 
specifications. The NRC staff's SER describes the staff's review, 
conclusions on the adequacy of the cask design, and bases for those 
conclusions. This information may be useful to a general licensee in 
evaluating the use of an approved cask design at its site. Whether or 
not review of the SER is required, the general licensee is obligated to 
ensure that the dry storage system, as used at their site, is in 
conformance with the CoC, and that dry storage at their site complies 
with the regulations. Therefore, the NRC staff accepts Issue 3 for 
consideration in the rulemaking process.

Issue 4: Programs and Plans

    The petition requests that 10 CFR part 72, subpart K, be amended to 
clarify the requirement to review various plans and programs that are 
governed by other regulations. Section 72.212(b)(10) requires that 
general licensees perform a review of the emergency plan, quality 
assurance program, training program, and radiation protection program, 
to determine if their effectiveness is decreased and, if so, prepare 
the necessary changes and seek and obtain the necessary approvals. The 
petitioner claims that the current rule may be interpreted as imposing 
change control requirements for these programs that are different than 
the existing change control requirements in other parts of the 
regulations. Accordingly, the petitioner claims that this change would 
remove ambiguity and duplication, and improve clarity by only directing 
the general licensee to the appropriate change control requirements.

NRC Response to Issue 4

    The NRC accepts Issue 4 for consideration in the rulemaking 
process. General licensees have emergency plans, quality assurance 
programs, training programs, and radiation protection programs that may 
need to be changed in order to use a spent fuel storage cask. For Issue 
4, the petition specifically requests that 10 CFR 72.212(b)(10) be 
modified to clarify the general licensee review requirements for these 
programs. The purpose of 10 CFR 72.212(b)(10) is to ensure that such 
changes are identified and made. While the NRC does not believe that 
the current rule alters existing change control requirements for the 
programs listed in 10 CFR 72.212(b)(10), it does recognize the standard 
for the evaluation in this section may not be applicable for certain 
programs' change control processes and that the rule could be 
clarified. Therefore, the NRC agrees to consider if and how 10 CFR 
72.212(b)(10) could more clearly state the relationship between the 
scope of 10 CFR 72.212(b)(10) reviews and other reviews for the same 
    As part of the NRC's consideration, the NRC may also evaluate 
whether other programs and plans should be encompassed by 10 CFR 

Issue 5: Revise the Requirement for Cask Marking

    The petitioner requests that 10 CFR part 72, subpart L, be amended 
to remove the requirement in 10 CFR 72.236(k)(3) to mark the empty 
weight on each storage cask. The petitioner states that marking the 
empty weight on the cask results in increased time and cost for cask 
fabrication activities and serves no useful purpose.

NRC Response to Issue 5

    The NRC accepts Issue 5 for consideration in the rulemaking 
process. While the NRC does not agree that the cask marking requirement 
serves no useful purpose, the NRC agrees that it is appropriate to 
consider the petitioner's request because the requirement may be 
limited in its usefulness. For operations covered under 10 CFR part 72, 
the loaded weight is more relevant than the empty cask weight.
    This issue will be more fully evaluated during the rulemaking 
process which will ensure that appropriate safety and transportation 
compatibility requirements in the rule, including markings for 
transportation packages and records of the empty weight, remain 

Issue 6: Criticality Monitoring

    The petitioner requests that 10 CFR 72.124(c) be modified to expand 
the scope of activities for which criticality monitoring is not 
required. Specifically, the petitioner requests that 10 CFR 72.124(c) 
be amended to clarify that criticality monitoring is not required for 
cask loading, preparation, onsite transport, and storage operations for 
dry storage operations governed by a 10 CFR part 72 license. The 
petitioner states that this change is consistent with NRC guidance and 
with other NRC regulations.

NRC Response to Issue 6

    The NRC accepts Issue 6 for consideration in the rulemaking 
process. The NRC staff notes that the criticality monitoring 
requirements in 10 CFR 72.124(c) have caused confusion in the past, and 
that clarifying changes may be appropriate. A change to this part of 
the requirements may also impact other aspects of 10 CFR part 72 
criticality safety requirements; this would need to be considered in 
the rulemaking process. For example, the petitioner notes that power 
reactor licensees may rely on a demonstration of subcriticality per the 
requirements in 10 CFR 50.68, ``Criticality Accident Requirements,'' in 
lieu of providing criticality monitoring. Although the NRC staff may 
consider analogous requirements for casks in rulemaking, the staff 
notes that criticality analyses for casks include operational 
assumptions that may not support complete elimination of monitoring 
requirements. Additionally, the scope of the rule includes site-
specific independent spent fuel storage installations and monitored 
retrievable storage installations, which may store particular spent 
fuel types and other forms of high-level radioactive waste that differ 
from the commercial light-water power reactor spent fuel discussed by 
the petitioner. These differences may dictate different criticality 
monitoring needs.
    Therefore, the NRC believes that the scope of the NRC consideration 
of the petitioner's request should include: (1) The need, if any, to 
modify other criticality safety requirements in 10 CFR 72.124 as a 
result of sole reliance on bounding criticality analyses instead of 
criticality monitoring, and (2) the different storage facilities that 
may be

[[Page 41938]]

licensed under 10 CFR part 72 and the different fuel types and high-
level radioactive wastes that may be stored at those facilities.

IV. Determination of Petition

    The NRC has reviewed the petition and related public comments. 
Based on its review, the NRC believes that the six issues raised in the 
petition should be considered in the rulemaking process.
    Further NRC action on the issues raised in PRM-72-7 can be 
monitored on the Federal rulemaking Web site, http://www.regulations.gov, by searching on Docket ID NRC-2014-0067, which is 
the identification for the future rulemaking. In addition, the Federal 
rulemaking Web site allows you to receive alerts when changes or 
additions occur in a docket folder. To subscribe for alerts: (1) 
Navigate to the docket folder (NRC-2014-0067); (2) click the ``Sign up 
for Email Alerts'' link; and (3) enter your email address and select 
how frequently you would like to receive emails (daily, weekly, or 
monthly). The NRC tracks all rulemaking actions on its Web site at 
    For the reasons cited in this document, the NRC will consider this 
petition in its rulemaking process. The docket for the petition, PRM-
72-7, is closed.

    Dated at Rockville, Maryland, this 27th day of June, 2014.

    For the Nuclear Regulatory Commission.
Darren B. Ash,
Acting Executive Director for Operations.
[FR Doc. 2014-16965 Filed 7-17-14; 8:45 am]