[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Notices]
[Pages 51916-51917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26273]


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Nuclear Regulatory Commission

[Docket No. 72-10]


Northern States Power Company Issuance of Director's Decision 
Under 10 CFR 2.206 (DD-97-24)

    Notice is hereby given that the Director, Office of Nuclear 
Material Safety and Safeguards, has issued a Director's Decision 
concerning a Petition dated August 26, 1996, filed by Carol A. 
Overland, on behalf of the Florence Township, Minnesota, Board of 
Supervisors (Petitioner), under Section 2.206 of Title 10 of the Code 
of Federal Regulations (10 CFR 2.206).
    The Director of the Office of Nuclear Material Safety and 
Safeguards has determined that the Petition should be denied for the 
reasons stated in the ``Director's Decision Under 10 CFR 2.206'' (DD-
97-24), the complete text of which follows this notice. The Decision 
and documents cited in the Decision are available for public inspection 
and copying in the Commission's Public Document Room, the Gelman 
Building, 2120 L Street, NW, Washington, DC.
    A copy of this Decision has been filed with the Secretary of the 
Commission for the Commission's review in accordance with 10 CFR 
2.206(c). As provided therein, this Decision will become the final 
action of the Commission 25 days after issuance unless the Commission, 
on its own motion, institutes review of the Decision within that time.

    Dated at Rockville, Maryland, this 26th day of September 1997.

    For The Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.

Director's Decision Under 10 CFR 2.206

I. Introduction

    On August 26, 1996, Florence Township, Minnesota (Petitioner) filed 
a petition requesting that the Nuclear Regulatory Commission (NRC) 
institute a proceeding pursuant to 10 CFR 2.202 with regard to the 
application by Northern States Power Company (NSP), claiming, that NSP 
violated the Commission's regulations by failing to provide Lake City, 
Minnesota, with an opportunity to comment on a proposed emergency plan 
for an independent spent fuel storage installation (ISFSI) before 
submission to the NRC. The Petitioner requested that NRC: (1) Determine 
that NSP violated the requirements of 10 CFR 72.32(a)(14) by refusing 
to allow Lake City, Minnesota, 60 days to comment on NSP's emergency 
plan before submitting it to NRC; (2) reject NSP's application as 
incomplete and inadequate and return it to the corporation; (3) require 
that NSP specifically name the local governments referred to in section 
5.6 of the emergency plan which are expected to respond in case of an 
accident; (4) require that NSP allow 60 days to the named local 
governments to review and comment upon NSP's emergency plan prior to 
NSP's resubmission of the application; (5) impose a penalty in the 
amount of one million dollars and require NSP to compensate the 
Petitioner in the amount of $7,500.00 for time expended by its Board 
and attorney in attempting to obtain the emergency plan before its 
submission to the NRC; and (6) provide hearings on this petition at 
which the Petitioner and members of the public may participate.
    The Petitioner asserts as the basis for this request the regulatory 
requirement found at Sec. 72.32(a)(14) of Chapter 10 of the Code of 
Federal Regulations [10 CFR 72.32(a)(14)]:

    The licensee shall allow the offsite response organizations 
expected to respond in case of an accident 60 days to comment on the 
initial submittal of the licensee's emergency plan before submitting 
it to NRC. Subsequent plan changes need not have the offsite comment 
period unless the plan changes affect the offsite response 
organizations. The licensee shall provide any comments received 
within 60 days to NRC with the emergency plan.

    The petition has been referred to me for a decision. For the 
reasons given below, I have concluded that the Petitioner's requests 
should be denied.

II. Background

    NSP has an onsite ISFSI at Prairie Island Nuclear Generating Plant 
(PINGP), which has a capacity to store 1920 spent fuel assembles in 48 
Transnuclear TN-40 casks. In 1994, the Minnesota legislature enacted 
statutes authorizing NSP to store spent nuclear fuel at the ISFSI. 1994 
Minn. Laws ch 641, arts. 1, 6 (codified at Minn. Stat 
Secs. 116C.77-.80(1996)). The legislation authorized the immediate use 
of five casks and allowed the use of four additional casks upon a 
determination that NSP had: (1) Filed a license application with NRC 
for a separate dry cask storage facility in Goodhue County; (2) 
continued a good faith effort to implement the alternate site; and (3) 
arranged for the use of additional megawatts of wind power. The law 
also provided that NSP could not construct at the second site without 
first obtaining a Certificate of Site Compatibility from the Minnesota 
Environmental Quality Board (MEQB). The MEQB was authorized to certify 
that the alternative Goodhue County site was comparable to the 
independent spent fuel storage facility site located on Prairie Island.
    NSP applied for a certificate from the MEQB in July 1995. It 
identified two possible sites for the Goodhue County spent fuel storage 
facility, both in Florence Township, south of the City of Red Wing. 
<SUP>1</SUP> On October 2, 1996, after receiving the report of a 
citizen Advisory Task Force, the MEQB determined that because of the 
additional risks it believed to be inherent in transporting spent 
nuclear fuel to a second site in Goodhue County away from PINGP, no 
other site in Goodhue County would be comparable to the Prairie Island 
facility and denied a certificate.
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    \1\ One of these was the site chosen by NSP for inclusion in its 
application to NRC. It is described as being situated south of 
Frontenac Station, north of Wells Creek, and between Territorial 
Road and the CP Rail railroad tracks.
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    NSP's application to NRC included an emergency plan for the Goodhue 
County facility, which contained comments from the Minnesota 
Departments of Public Safety and Public Health, as well as the Goodhue 
County, Minnesota, Office of Emergency Management which coordinates 
emergency services within the county. NRC completed its acceptance 
review and docketed the NSP application on September 9, 1996. A 
``Notice of Consideration of Issuance of a Materials License for the 
Storage of

[[Page 51917]]

Spent Fuel and Notice of Opportunity for Hearing'' was published in the 
Federal Register on September 17, 1996. The Petitioner and several 
others sought a hearing as provided by 10 CFR 2.105. An Atomic Safety 
and Licensing Board (ASLB) was established on October 9, 1996. Among 
the issues raised in the petitions to intervene by the Petitioner and 
by Lake City, Minnesota, were issues associated with emergency 
planning, substantially similar to the issues raised by the Petitioner 
in the petition requesting that the NRC institute a proceeding pursuant 
to 10 CFR 2.202. Consequently, the staff deferred the response to the 
Petition until completion of the ASLB hearing process.
    Because of the physical proximity of its Reservation to PINGP, the 
Prairie Island Indian Community had been particularly interested in 
seeing the offsite ISFSI built. Since the MEQB decision effectively 
ended the possibility of that facility being developed, the Indian 
Community initiated litigation in the Minnesota State Courts in 
December 1996, seeking to overturn the MEQB decision. When the 
litigation began, NSP requested and was granted a suspension of both 
NRC staff's review of the Goodhue County application and the ASLB 
proceeding, just prior to the pre-hearing conference which was 
scheduled for December 1996. State litigation ended in July 1997, when 
the Minnesota Supreme Count declined to hear an appeal of the Minnesota 
Court of Appeals ruling which affirmed the MEQB decision. Subsequently, 
in a letter dated July 22, 1997, NSP withdrew the Goodhue County 
application. NRC acknowledged the withdrawal in a letter dated August 
4, 1997. The ASLB issued a Memorandum and Order terminating its 
proceeding on July 30, 1997. However, a motion for reconsideration is 
currently under review by the Board. <SUP>2</SUP>
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    \2\ On July 30, 1997, the Petitioner filed a response to NSP's 
July 24, 1997, Motion for Withdrawal of Application and Termination 
of Proceeding. In the response, the Petitioner requested that the 
ASLB dismiss the NSP application with prejudice, or alternatively, 
deny NSP's application, or impose a condition of withdrawal that the 
application for the Florence Township site shall not be resubmitted. 
The ASLB considered this Petitioner's June 30, 1997, submittal to be 
a motion for reconsideration. On August 29, 1997, the staff 
responded that Florence Township's motion for reconsideration should 
be denied on the basis that the proceeding had not sufficiently 
progressed such that dismissal with prejudice is appropriate, and on 
the basis that Florence Township has not demonstrated legal harm 
warranting the relief it requests.
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III. Discussion

    Section 72.32(a)(14) provides that the offsite response 
organizations expected by the licensee to respond to an on-site 
emergency should be provided an opportunity to comment on an ISFSI 
emergency plan. <SUP>3</SUP> As required by 10 CFR 72.32(a)(14), NSP 
contacted the offsite response organizations it expected to respond to 
an on-site emergency at the proposed Goodhue County facility. NSP 
requested comments from the Minnesota Departments of Public Safety and 
Public Health and the Goodhue County, Minnesota, Office of Emergency 
Management. All three responded to NSP's request. Their comments were 
provided to NRC with the emergency plan.
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    \3\ The regulatory requirements for comments on the emergency 
plans for ISFSIs, like the requirements for the emergency plans, are 
separate and quite different from those for nuclear reactors. The 
requirements for emergency plans for ISFSIs are for on-site 
emergencies only. Because offsite health effects have not been 
identified for accidents at ISFSIs, there is no requirement for 
neighboring jurisdictions to be involved in emergency response. 
There is, for instance, no requirement for evacuation planning and 
hence no need for the kinds of more elaborate plans associated with 
nuclear reactors.
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    The Petitioner claims that because the Lake City, Minnesota, Fire 
Department contracts with Florence Township to provide fire protection, 
it is one of the offsite response organizations that NSP would contact 
in case of an on-site emergency at the Goodhue County ISFSI. Lake City 
is not located in Goodhue County, however, and therefore is not 
expected by the applicant to respond to an on-site emergency.
    The emergency plan appropriate for an ISFSI is an on-site emergency 
plan. The staff has determined that there are no credible accidents at 
an ISFSI which have significance for offsite emergency preparedness. 
<SUP>4</SUP> There is no specific requirement that any particular 
political jurisdiction be contacted to comment on an ISFSI emergency 
plan. Rather, the applicant is required to determine which services it 
will require from offsite providers and to seek comments from those 
organizations. NSP did not indicate in the emergency plan that Lake 
City, Minnesota, was expected to respond to an on-site emergency. 
Further, no evidence has been provided that NSP, at the time of the 
submittal of the license application, had plans to seek emergency 
planning assistance from Lake City, Minnesota. Thus, there is no 
violation of 10 CFR 72.32(a)(14) to warrant any enforcement action.
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    \4\ See NUREG-1140, ``A Regulatory Analysis on Emergency 
Preparedness for Fuel Cycle and Other Radioactive Material 
Licensees.''
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    The Petitioner raised several additional requests regarding NRC's 
review of NSP's Goodhue County application. These are matters which the 
NRC considers during the license review, not as part of a Petition 
filed under 10 CFR 2.206. Further, in light of the fact that NSP has 
now withdrawn the application, they are moot.

Conclusion

    I have concluded that NSP did not violate NRC regulations by 
failing to provide Lake City, Minnesota, with an opportunity to respond 
to the proposed emergency plan. As provided by 10 CFR 2.206(c), a copy 
of this Decision will be filed with the Secretary of the Commission for 
the Commission's review.

    Dated at Rockville, Maryland, this 26th day of September, 1997.

    For The Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 97-26273 Filed 10-2-97; 8:45 am]
BILLING CODE 7590-01-P