[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Proposed Rules]
[Pages 63964-63968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30611]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 /
Proposed Rules
[[Page 63964]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 72
[Docket No. PRM-72-5]
Nuclear Energy Institute; Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking: denial.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking (PRM-72-5) submitted by the Nuclear Energy Institute
(NEI). The petitioner requested that the NRC amend its regulations
governing the issuance of Certificates of Compliance (CoCs) for dry
cask storage of spent nuclear fuel under a general license. The
petitioner requested that the NRC eliminate notice and comment
rulemaking from the approval process for initial cask designs and for
CoC amendments. The petitioner proposed an alternative approval process
which provided for approval by orders after a period for public
comment, except in the case of amendments for which a determination of
no significant impacts was reached. This type of amendment could be
issued as immediately effective with a post-issuance comment period.
The Commission is denying the petition for rulemaking because
improvements in the approval process have significantly decreased the
length of time for approval of CoC amendments, making regulatory change
unnecessary; the petitioner's approval process may require the offer of
an opportunity for a hearing which could eliminate any efficiency
obtained by the elimination of notice and comment rulemaking; and the
Commission's performance goals would be better served by retaining the
present process than by adopting the process suggested by petitioner.
ADDRESSES: Copies of the petition for rulemaking, the public comments
received, and NRC's letter to the petitioner may be examined at the NRC
Public Document Room, 11555 Rockville Pike, Rockville, MD. These
documents also may be viewed and downloaded electronically via the
NRC's rulemaking website (http://ruleforum.llnl.gov). For information
about the interactive rulemaking website, contact Ms. Carol Gallagher
(301) 415-5905; e-mail [email protected].
The NRC maintains an Agencywide Document Access and Management
System (ADAMS), which provides text and image files of NRC's public
documents. These documents may be accessed through the NRC's Public
Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. If you do not have access to ADAMS or it there are
problems in accessing the documents located in ADAMS, contact the NRC
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected].
FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Nuclear Material
Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington,
DC 20555-0001, telephone (301) 415-8126, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
On June 9, 2000 (65 FR 36647), the NRC published a notice of
receipt of a petition for rulemaking filed by the Nuclear Energy
Institute (NEI) on April 19, 2000. The petitioner supplemented the
petition in an August 23, 2000 letter. The petition requests that the
NRC amend its regulations at 10 CFR Part 72 governing the issuance of
Certificates of Compliance (CoCs) for cask designs for dry cask storage
of spent nuclear fuel for use under a general license. The petition
proposes to eliminate rulemaking as the method for issuing and amending
CoCs. Thus, the primary aim of the petition is to remove Sec. 72.214,
which lists approved cask designs. Under the petitioner's proposal, the
NRC would continue to approve cask designs after a safety review but
would issue and amend CoCs by order rather than by rulemaking.
The petitioner proposes an alternative process for providing an
opportunity for public input on CoC and CoC amendment approvals. With
respect to applications for a CoC for a new cask design, the NRC would
publish in the Federal Register a notice of receipt and availability of
the application. The NRC would then prepare a draft CoC and a draft
Safety Evaluation Report (SER) and would notice the availability of
these documents in the Federal Register for a 60-day comment period.
The NRC would evaluate the public comments and publish a response in
the Federal Register, together with an order granting the CoC.
Amendments to CoCs would be processed in the same manner as new
CoCs except with respect to amendments where the applicant asserted
that the amendment ``did not have the potential to have a significant
impact on public health and safety.'' As part of the regulatory changes
proposed in the petition, the NRC would amend Sec. 72.238 to include
criteria for determining whether this ``no significant impact''
standard is met in any given case. If the NRC staff agreed with the
assertion of no significant impact considerations, a notice of
availability of the order granting the amendment and the associated SER
would be published in the Federal Register. A post-effectiveness
comment period on the amendment and the no significant impact
considerations determination would be provided. If the NRC staff
determined that the amendment posed a potential significant impact, the
draft CoC and SER would be published in the Federal Register for a 60-
day comment period and the amendment would not become effective until
the NRC had published a response to the comments and an order granting
the amendment. The petitioner submitted examples of amendments likely
to involve, and not involve, significant impact considerations that it
proposed for inclusion in a regulatory guidance document. Thus, the
main focus of the NEI petition is to abbreviate the CoC amendment
approval process by allowing amendments which do not involve
significant impact considerations to become effective upon completion
of the NRC staff's safety review and prior to the receipt of any public
comments.
In NEI's view, NRC's existing process for issuing and amending CoCs
takes too long to complete. NEI believes that the length of the process
may create a substantial impediment to the increased future deployment
of dry spent fuel storage by reactor licensees and/or to
[[Page 63965]]
the reactor decommissioning process. In particular, the petitioner
believes that NRC is in need of a regulatory process capable of dealing
with a potentially large number of amendments on a more timely basis.
The petitioner states that, as of the date of the petition, the
rulemaking process to amend cask CoCs has taken about 24 months to
complete. Use of notice and comment rulemaking procedures, as the
petitioner sees it, unnecessarily expends resources on what petitioner
views as a ministerial task--maintaining a list of certified casks.
Replacing the present process with a simplified, streamlined procedure
will have the additional benefit, NEI believes, of making the process
for approving spent fuel storage casks similar to the process for
approving spent fuel transportation casks.
The petitioner believes that its suggested alternative process is
consistent with legal requirements. NEI takes the position that the
notice and comment rulemaking used by the NRC to issue CoCs and CoC
amendments is a discretionary choice of the Commission which may have
been appropriate when the scope of safety issues associated with the
issuance and amendment of CoCs was unknown, but is no longer necessary
following more than a decade of experience with these rulemakings. Nor
is a license proceeding of any kind needed for the approval of a CoC or
CoC amendment, in the petitioner's view, because ``a CoC has been
recognized legally as something less than a license.'' The petitioner
bases this position on the court's statement in Kelley v. Selin, 42
F.3d 1501, 1518 (6th Cir. 1995), cert. denied, 515 U.S. 1159 (1995),
that ``certification of designs is not identical to the grant of a
general license. Certification is a narrower procedure that approves
designs in theory while the grant of a license is a broader form of
permission.'' Thus, the petitioner believes that the alternative
approval process suggested in the petition would not be subject to
Section 189a of the Atomic Energy Act of 1954, as amended (AEA), and
would not result in opportunities for adjudicatory hearings. Because
there is no legal requirement, in the petitioner's view, to use either
rulemakings or adjudicatory hearings for the approval of CoCs or CoC
amendments, the petitioner asserts that the NRC is free to adopt
whatever approval procedures it believes are adequate for public
consideration of the type of safety issues likely to arise in these
proceedings.
The petitioner also believes that its proposal meets the NRC's four
performance goals:
(1) Maintain safety, protect the environment and the common defense
and security; (2) increase public confidence; (3) make NRC activities
and decisions more effective, efficient, and realistic; and (4) reduce
unnecessary regulatory burden. With respect to the first goal, the
petitioner points out that its proposal will have no effect on the
substantive safety standards which the CoC applicant must meet nor on
NRC's safety and environmental review of an application. Further,
orders are as fully enforceable as rules, so there will be no
diminution of NRC's enforcement authority. With respect to the public
confidence goal, the petitioner believes that public confidence will be
maintained because the public will still be able to participate in a
meaningful way by providing comments on all new CoCs and all
amendments. The only change will be that prior comment on amendments
will be appropriately reserved for those CoC amendments that have the
potential for a significant safety impact. The goal of making NRC
regulatory decisions more efficient will be obtained by elimination of
the delay and expenditure of resources involved in notice and comment
rulemaking. Finally, the goal of burden reduction will be achieved
because the burdensome aspects of rulemaking would be eliminated and
amendment requests which do not present significant impacts would be
subject to a suitably streamlined review and approval process.
Public Comments on the Petition
The notice of receipt of the petition for rulemaking invited
interested persons to submit comments. The comment period closed on
August 23, 2000. NRC received 24 comment letters from industry, an
individual, and a State government agency. All industry commenters
supported the petition; the State supported the petition with
reservations; and the individual opposed the petition. The NRC reviewed
and considered all the comments in developing its decision on this
petition.
The commenters supporting the petition did so for the same reasons
as those expressed by the petitioner, primarily because the present
process involving notice and comment rulemaking takes too long and
involves an unnecessary expenditure of resources. One commenter
observed that elimination of rulemaking would avoid the need for
general licensees to seek exemptions to enable them to use a particular
cask design before completion of the rulemaking process. These
commenters also supported NEI's proposed alternative process. One
commenter cautioned that any change to the current rulemaking process
should ensure that the finality and standing of current and future CoCs
as adjudicated in Kelley v. Selin be preserved. The State commenter
emphasized that any criteria used to determine the significance of an
amendment should be in the rule and not in a separate guidance
document. Several commenters encouraged the adoption of standard
technical specifications and stated that this would reduce the number
of amendment requests.
One commenter opposed the petition. This commenter expressed
concern that the effect of the alternative proposal would be to reduce
public input and that many documents would no longer be publicly
available. The commenter felt that any burden imposed by the present
process was basically the fault of the industry; that if the vendors
``did their homework'' and got the proposed cask design complete before
submitting it to the NRC, amendments would not be necessary. The
commenter stated that the cask designs were supposed to be generic to
avoid the need for site-specific approvals, yet amendments are
regularly needed to accommodate minor differences in cask content
unique to particular plants. The commenter objected to NRC being able
to decide, prior to any public notice, whether an amendment has any
significant impact or not, noting that this deprives the agency of any
public insight on health and safety issues before the amendment becomes
immediately effective. This commenter also believes that the present
rulemaking process is not a matter of agency discretion but rather is
imposed by Section 133 of the Nuclear Waste Policy Act of 1982.
Reasons for Denial
The Commission is denying the petition for rulemaking because (1)
improvements in the approval process have already significantly
decreased the length of time for approval of CoC amendments, making
regulatory change unnecessary; (2) the petitioner's approval process
may require the offer of an opportunity for a hearing, which could
eliminate any efficiency obtained by generic consideration of cask
design issues; and (3) the Commission's performance goals would be
better served by retaining the present process than by adopting the
process suggested by petitioner.
1. The length of the rulemaking process for CoC amendments has been
significantly shortened since submission of the petition, obviating any
need for a regulatory change.
[[Page 63966]]
The petitioner's primary reason for requesting an amendment of Part
72 to delete the use of notice and comment rulemaking for initial and
amended CoCs is the assertion that this process is too lengthy and may
interfere with efficient, expeditious use of dry cask storage. The
petitioner's proposed process for approving initial cask designs--which
includes public notice of the availability of the draft SER and
environmental assessment (EA) for a 60-day comment period, and
effectiveness of the CoC only after NRC has responded to any comments--
is little different from the present process and would not produce any
significant time savings. Under the petitioner's proposed process for
amending CoCs, however, when the NRC agreed with an applicant's
proposed finding of no significant impact, the amendment would become
effective upon completion of the NRC staff's safety evaluation of the
amendment. This would eliminate the time needed for the current CoC
amendment rulemaking process.
At the time the petitioner submitted its petition, the petitioner
stated that the rulemaking process to amend cask CoCs took about 24
months to complete. The Commission agrees that this is an excessive
amount of time for very simple amendment rulemaking. However, the
Commission now uses the direct final rule process for CoC amendments.
In this process, the rule automatically becomes effective 75 days after
its publication in the Federal Register unless a significant adverse
comment is received within 30 days of publication. If such a comment is
received, it is treated as a comment on a companion proposed rule
published at the same time as the direct final rule. The NRC withdraws
the direct final rule and subsequently issues a final rule responding
to the comment. The NRC has now published 9 direct final rules for CoC
amendments, only one of which has been withdrawn. NRC's current
experience is that the rulemaking process for CoC amendments takes
between 4 and 6 months rather than the 24 months which is the premise
of the petition. We do not believe the current amount of time devoted
to CoC amendments is inordinate given the advantages, discussed below,
of using the present process.
2. Although NRC agrees with petitioner that the use of rulemaking
to approve cask designs is discretionary, we are not convinced that, in
the absence of rulemaking, NRC should approve CoCs for casks without an
opportunity for an adjudicatory hearing.
The petitioner's suggested alternative process for the approval of
cask designs and their amendment rests on two legal assumptions: (1)
That the Commission has the discretion to eliminate rulemaking from the
approval process; and (2) that if the Commission does eliminate
rulemaking from this process it will not be necessary to provide an
adjudicatory hearing in its place. As explained below, the Commission
agrees with the first assumption but has reservations about the second.
In 1990, the Commission amended Part 72 to provide, in new Subpart
K, a general license to enable Part 50 reactor licensees to store spent
fuel in an on-site independent spent fuel storage installation (ISFSI)
without the need for a site-specific NRC approval, provided storage is
in casks approved by the NRC and that certain other conditions are met.
(55 FR 29181; July 18, 1990.) The same rulemaking added subpart L, in
which the Commission established a cask approval program. Under this
regulatory regime, a CoC is issued on a finding that the applicant has
satisfied NRC requirements (10 CFR 72.236; 72.238), but before the
certified cask design can be used under the general license, the cask
design must be added to the list of approved designs in 10 CFR 72.214
via a rulemaking.
This regulatory scheme was intended to implement two statutory
provisions of the Nuclear Waste Policy Act of 1982, Sections 218(a) and
133. Section 218(a), in part, provides:
The Secretary [of Energy] shall establish a demonstration
program, in cooperation with the private sector, for the dry storage
of spent nuclear fuel at civilian nuclear power reactor sites, with
the objective of establishing one or more technologies that the
Commission may, by rule, approve for use at the sites of civilian
nuclear power reactors without, to the maximum extent practicable,
the need for additional site-specific approvals by the Commission.
Section 133, in part, provides:
The Commission shall, by rule, establish procedures for the
licensing of any technology approved by the Commission under section
[218(a)] for use at the site of any civilian nuclear power reactor.
In its 1990 rulemaking, the Commission stated that the storage
technology it was approving was storage of spent fuel in dry casks (55
FR 29182; July 18, 1990). Thus, the Commission saw its statutory duty
under Section 218(a) as being fulfilled by its approval of a particular
class of dry storage technology rather than by its approval of
particular cask designs which were all of the same class. The
Commission's statutory duty under Section 133 was fulfilled by the
process it established to provide for the use of the approved
technology under a general license.
The NRC agrees with petitioner that the Commission's choice to use
rulemaking to list approved cask designs was a discretionary choice not
mandated by statute. What must be kept in mind, however, is the process
that the regulatory scheme, adopted in 1990, replaced. Before cask
designs were approved by generic rulemaking for use by a general
licensee, the only process available to approve the ISFSI and the cask
design was the site-specific licensing proceeding, which included the
opportunity for a hearing. In these site-specific proceedings, NRC
approval was granted only to one licensee to use a particular cask
design. If other licensees wanted to use the same design, a separate
approval was needed and a separate opportunity for a hearing was
provided.\1\ Thus, the regulatory regime put in place in 1990 was
designed to encourage and to expedite the use of dry cask storage
technology because it meant that a cask design would only need to be
approved once, and then it would be available to any general licensee
who wished to use it and who could meet the conditions of the CoC
without the need for any further site-specific approval. The new cask
approval process was more efficient than the one it replaced, but its
success depended upon the approval and manufacture of cask designs
which could be used by a large number of reactor licensees. Instead,
cask vendors have optimized cask designs for particular licensees,
resulting in a need for amendment of the designs to make them more
widely usable. Even with the additional time needed to amend cask
designs, we believe the current process is more efficient and less
time-consuming than the one it replaced.
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\1\ Licensees may still apply for a site-specific license. If
they choose to do so and reference a certified cask, issues
associated with cask designs are not subject to litigation. See
``Clarification and Addition of Flexibility Final Rule,'' (65 FR
50606; August 21, 2000). Elimination of rulemaking from the CoC
process would undermine the rationale for the Clarification
rulemaking.
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The second assumption on which the petition is based is the
expectation that it would not be necessary to provide an opportunity
for an adjudicatory hearing in the proposed alternative approval
process. Section 189a(1)(A) of the AEA provides, in relevant part:
In any proceeding under this Act, for the granting, suspending,
revoking, or amending of any license or construction permit * * *
and in any proceeding for the issuance or modification of rules and
regulations dealing with the activities of licensees * * * the
Commission shall grant a hearing upon the
[[Page 63967]]
request of any person whose interest may be affected by the
proceeding, and shall admit such person as a party to such
proceeding * * *.
In Kelley v. Selin, the United States Court of Appeals for the Sixth
Circuit considered a claim that the NRC had violated Section 189a by
denying the petitioners' request for an adjudicatory hearing to
consider issues regarding the storage of nuclear waste in VSC-24 casks
at the Palisades nuclear plant. These petitioners asserted that NRC's
use of generic rulemaking to add the VSC-24 cask design to the list of
approved designs was insufficient because it barred opportunity to
dispute issues that were site-specific in relation to the use of the
VSC-24 cask at Palisades. The court upheld NRC's choice to use
rulemaking to resolve all issues concerning the VSC-24 cask design. The
court noted that ``even where an agency's enabling statute expressly
requires it to hold a hearing, the agency may rely on its rulemaking
authority to determine issues that do not require case-by-case
consideration.'' 42 F.3d at 1511 (quotations and citations omitted).
This was the case here because, inter alia:
The NRC's certificate of compliance for the VSC-24 casks, like
the certificates of compliance for the other dry storage
technologies listed in 10 C.F.R. 72.214, contains a lengthy list of
conditions of system use for operation of the VSC-24. * * * This
extensive list of conditions for use of the VSC-24 cask will
virtually eliminate the need for site-specific consideration
concerning the use of the VSC-24 cask, since the various licensees
of civilian nuclear power generating facilities will be able to
determine from the conditions of system use for the VSC-24 cask
whether it is possible to use the cask at the site of their nuclear
power generating facility.
42.Fed at 1513. Thus the court refused to use its power of judicial
review to ``dictate to the agency the procedure which it must use in
approving designs for containers for the dry storage of spent nuclear
fuel.'' Id. See also Siegel v. Atomic Energy Commission, 400 F.2d 778,
785-786 (D.C. Cir. 1968).
At present, any obligation the NRC may have under Section 189a of
the AEA to provide an opportunity for a hearing on a cask approval is
satisfied by the rulemaking procedures it employs for these approvals.
In the absence of these rulemaking procedures, the Commission's
obligations under Section 189a would need to be revisited. As the
petitioner points out, the court in Kelley v. Selin, in dicta, did
characterize certification of designs as being a narrower form of
permission than the grant of a license (42 F.3d at 1518), and this
could conceivably support an argument that Section 189a does not apply
to NRC's approval of CoCs or CoC amendments. However, whether Section
189a requires a hearing opportunity on a cask certification in the
absence of rulemaking was not at issue before the court and was not
decided by the court. Thus, there has been no judicial determination of
this issue. The Commission concludes that there is a significant risk
that the procedures offered by the petitioner, which fall short of the
ingredients of a normal rulemaking,\2\ would be seen as deficient.
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\2\ For example, under Sec. 553(d) of the Administrative
Procedures Act, notice of a final rule must be given at least 30
days prior to its effective date. The petitioner contemplates that
an order would be effective immediately.
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Similarly, the court did not address, even in dicta, whether the
Part 72 Subpart K general licensing scheme for ISFSIs that relies on
the CoC process being accomplished by rulemaking, would be acceptable
in the absence of either a rulemaking or a Sec. 189a hearing on the
CoC. Nor did the court address the specific licensing schemes for
ISFSIs that also relies on the CoC rulemaking proceedings to eliminate
repetitious review of cask design issues that are resolved by CoC
rulemakings. See 10 C.F.R. 72.46(e). Consequently, if the CoC process
were streamlined as NEI suggests and conducted without a rulemaking or
offering a Sec. 189a hearing, the Commission may be required to resolve
cask design issues on a case-by-case basis in proceedings for specific
ISFSI licenses or license amendments.
3. NRC's performance goals would be better served by retention of
the present process than by adoption of petitioner's suggested process.
The Commission examined the petitioner's suggested alternative
proposal in the context of NRC's four performance goals and in
comparison with NRC's existing cask approval process. With respect to
the first goal--maintaining safety and protecting the environment and
the common defense and security--there is no difference between the two
processes. The petitioner has not suggested any change in NRC's safety
review of applications for CoCs or CoC amendments nor for NRC's
inspection and enforcement activities.
With respect to the second goal--increasing public confidence--we
think that the present process is more likely to obtain this objective.
The petitioner notes that its alternative process provides the public
with essentially the same opportunities for public comment; the only
difference being that for amendments for which a no significant impact
considerations is demonstrated, the comment period will be after,
rather than prior to, the effectiveness of the amendment. However, this
difference, could generate new public objections to being denied an
opportunity to comment before the NRC's decision and, in particular,
before to NRC's no significant impacts decision.\3\ Both the public
commenter who opposed the petition and the State commenter questioned
petitioner's characterization of some potential amendments as being
non-significant. Under the petitioner's suggested scheme, NRC would
publish a notice in the Federal Register that would both announce its
determination that the amendment had no potential for significant
impacts and its immediately effective decision approving the amendment.
Although, under the petitioner's scheme, the public would have a post-
effectiveness opportunity to comment on both the amendment and the no
significant impact considerations determination, the public may not
regard this as a meaningful opportunity to comment. Under the present
process, publication of an amendment as a direct final rule gives the
Commission an opportunity to test its judgment that the amendment is
non-controversial and will not attract any significant adverse
comments. If a significant adverse comment is received, the rule is
withdrawn before it becomes effective and the Commission proceeds with
normal notice and comment rulemaking. We think this process is more
likely to achieve the goal of increasing public confidence in the
Commission's decisionmaking process.
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\3\ Petitioner's suggested process is similar to the process the
Commission uses for considering Part 50 license amendments. In that
process, the applicant submits a no significant hazards
consideration analysis and the Commission publishes in the Federal
Register a proposed determination that no significant hazards
consideration is involved and allows a 30-day comment period on this
determination. Normally, the amendment is not granted until the
conclusion of this comment period. See 10 CFR 50.91(a).
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With respect to the third goal of making NRC decisions more
effective, efficient, and realistic, the only advantage of petitioner's
alternative process over the present process would be a shortening of
the time between the completion of the NRC staff's safety review of CoC
amendments which meet the no significant impact considerations test and
the effectiveness of the amendment. But, as described supra, this time
interval--which petitioner asserted to be 24 months--has already been
significantly shortened to 4 to 6 months through use of direct final
rules and other measures taken to expedite the process, such as
elimination of the
[[Page 63968]]
need for a rulemaking plan and issuance of the rule by the Executive
Director for Operations. Moreover, the NRC staff continues to find ways
to expedite the internal approval process as additional experience is
gained. Under the alternative process suggested by the petitioner, the
staff's technical review would take longer than it currently takes
because the staff would be required to conduct some activities
currently conducted under rulemaking and some new activities that they
do not perform under the current process. An environmental assessment
would need to be prepared for each new CoC and each CoC amendment (this
is currently performed during rulemaking). As part of this process, the
staff would need to consult with the states. If appropriate, a Finding
of No Significant Impact (associated with the environmental review)
would need to be prepared and published in the Federal Register. The
NRC staff would need to prepare, and have published in the Federal
Register, the no significant impact consideration finding (a new
action). In addition, an order granting the CoC (new action) would need
to be prepared and issued. These activities would increase the staff
effort and review time necessary for approval of a CoC amendment.
Moreover, whatever time savings petitioner's process might achieve
would be offset if it should prove necessary to resolve cask design
issues on a case-by-case basis in ISFSI proceedings. Unquestionably, a
case-by-case consideration, rather than a generic review, would
significantly increase the time and resources necessary for finally
resolving cask design issues. Any uncertainty in the finality of the
NRC's decision on cask design issues could postpone the loading of
casks, because one outcome of any case-by-case consideration could be
to overturn the NRC decision to approve a cask.
Finally, with respect to the fourth goal of reducing unnecessary
regulatory burden, the petitioner asserts that its alternative process
achieves this goal because ``the new process removes the burdensome
aspects of rulemaking which are unnecessary because they do not add to
the quality of the regulatory decision'' and ``the new process
identifies the CoC amendment requests which do not present significant
potential impacts and subjects those amendment requests to a suitably
streamlined review and approval process.'' The NRC notes that the
petitioner's suggested process for considering initial CoCs and
amendments which do involve significant impacts--a process that
involves a 60-day comment period and no final NRC action until NRC has
addressed the comments--is not significantly different from the present
process and would not provide significant burden reduction for either
the NRC staff or the industry. There could be a slight increase in
burden for the staff because petitioner's process calls for publication
in the Federal Register of a Notice of Receipt and Availability of the
Application, a step not part of the current process. The petitioner's
process for CoC amendments would require the applicant to submit a no
significant impacts determination consideration along with the
application. This would actually place an additional burden on the
applicant and on the NRC staff assigned to reviewing the determination
even though the extra burden might produce the benefit of an
immediately effective amendment. Staff effort would also continue to be
expended on preparation of an environmental assessment and the
necessary Federal Register notices (currently part of the rulemaking
process). The staff would also have the added burden of preparing an
order to issue the CoC amendment. In short, there would be little, if
any, burden reduction stemming from petitioner's alternative process.
Moreover, if it should prove necessary to offer an opportunity for a
hearing, a hearing request would also result in an increased
expenditure of resources by both staff and the industry.
In conclusion, for the reasons explained above, we believe that
NRC's performance goals are better served by retention of the current
process.
For the reasons cited in this document, the NRC denies this
petition.
Dated at Rockville, Maryland, this 5th day of December, 2001.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 01-30611 Filed 12-10-01; 8:45 am]
BILLING CODE 7590-01-P