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.

Proposed Rules Federal Register

46204 

Vol. 73, No. 154 

Friday, August 8, 2008 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 51 

[Docket No. PRM–51–10, NRC–2006–0022 

and Docket No. PRM–51–12, NRC–2007– 

0019] 

The Attorney General of 

Commonwealth of Massachusetts, The 

Attorney General of California; Denial 

of Petitions for Rulemaking 

AGENCY: Nuclear Regulatory 

Commission (NRC). 

ACTION: Petition for rulemaking; denial. 

SUMMARY: The NRC is denying two 

petitions for rulemaking (PRM), one 

filed by the Attorney General of the 

Commonwealth of Massachusetts 

(Massachusetts AG) and the other filed 

by the Attorney General for the State of 

California (California AG), presenting 

nearly identical issues and requests for 

rulemaking concerning the 

environmental impacts of the highdensity storage of spent nuclear fuel in 

large water pools, known as spent fuel 

pools (SFPs). The Petitioners asserted 

that ‘‘new and significant information’’ 

shows that the NRC incorrectly 

characterized the environmental 

impacts of high-density spent fuel 

storage as ‘‘insignificant’’ in its National 

Environmental Policy Act (NEPA) 

generic environmental impact statement 

(EIS) for the renewal of nuclear power 

plant licenses. Specifically, the 

Petitioners asserted that spent fuel 

stored in high-density SFPs is more 

vulnerable to a zirconium fire than the 

NRC concluded in its NEPA analysis. 

ADDRESSES: You can access publicly 

available documents related to these 

petitions for rulemaking using the 

following methods: 

Federal e-Rulemaking Portal: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

[NRC–2006–0022] (PRM–51–10), and 

[NRC–2007–0019] (PRM–51–12). 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Public 

File Area O1 F21, One White Flint 

North, 11555 Rockville Pike, Rockville, 

Maryland. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into 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 NRC 

PDR reference staff at 1–899–397–4209, 

301–415–4737, or by e-mail to 

pdr.resource@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: L. 

Mark Padovan, Office of Nuclear 

Reactor Regulation, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone (301) 415– 

1423, e-mail Mark.Padovan@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Petitioners’ Requests 

III. Public Comments 

IV. NEPA and NUREG–1437 

V. Reasons for Denial—General 

A. Spent Fuel Pools 

B. Physical Security 

C. Very Low Risk 

VI. Reasons for Denial—NRC Responses to 

Petitioners’ Assertions 

A. New and Significant Information 

B. Spent Fuel Assemblies Will Burn if 

Uncovered 

1. Heat Transfer Mechanisms 

2. Partial Drain-Down 

3. License Amendments 

C. Fuel Will Burn Regardless of its Age 

D. SFP Zirconium Fire Will Propagate 

E. SFP Zirconium Fire May Be 

Catastrophic 

1. Not New and Significant Information; 

Very Low Probability 

2. Shearon Harris Atomic Safety and 

Licensing Board Panel (ASLBP) 

Proceeding 

3. SFP Zirconium Fire Does Not Qualify As 

a DBA 

F. Intentional Attack on a SFP is 

‘‘Reasonably Foreseeable’’ 

1. NAS Report 

2. Ninth Circuit Decision 

G. SFP Zirconium Fire Should be 

Considered within the Analysis of 

SAMAs 

VII. Denial of Petitions 

I. Background 

The NRC received two PRMs 

requesting that Title 10 of the Code of 

Federal Regulations (10 CFR), Part 51, 

be amended. The Massachusetts AG 

filed its petition on August 25, 2006 

(docketed by the NRC as PRM–51–10). 

The NRC published a notice of receipt 

and request for public comment in the 

Federal Register on November 1, 2006 

(71 FR 64169). The California AG filed 

its petition on March 16, 2007 (docketed 

by the NRC as PRM–51–12). PRM–51– 

12 incorporates by reference the facts 

and legal arguments set forth in PRM– 

51–10. The NRC published a notice of 

receipt and request for public comment 

on PRM–51–12 in the Federal Register 

on May 14, 2007 (72 FR 27068). The 

California AG filed an amended petition 

(treated by the NRC as a supplement to 

PRM 51–12) on September 19, 2007, to 

clarify its rulemaking request. The NRC 

published a notice of receipt for the 

supplemental petition in the Federal 

Register on November 14, 2007 (72 FR 

64003). Because of the similarities of 

PRM–51–10 and PRM–51–12, the NRC 

evaluated the two petitions together. 

The Petitioners asserted the following 

in their petitions: 

1. ‘‘New and significant information’’ 

shows that the NRC incorrectly 

characterized the environmental 

impacts of high-density spent fuel 

storage as ‘‘insignificant’’ in the NRC’s 

NUREG–1437, Generic Environmental 

Impact Statement for License Renewal 

of Nuclear Plants, May 1996. 

Specifically, the Petitioners asserted 

that an accident or a malicious act, such 

as a terrorist attack, could result in an 

SFP being drained, either partially or 

completely, of its cooling water. The 

Petitioners further asserted that this 

drainage would then cause the stored 

spent fuel assemblies to heat up and 

then ignite, with the resulting zirconium 

fire releasing a substantial amount of 

radioactive material into the 

environment. 

2. The bases of the ‘‘new and 

significant information’’ are the 

following: 

a. NUREG–1738, Technical Study of 

the Spent Fuel Pool Accident Risk at 

Decommissioning Nuclear Power Plants, 

January 2001 

b. National Academy of Sciences 

Committee on the Safety and Security of 

Commercial Spent Nuclear Fuel Storage, 

Safety and Security of Commercial 


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Spent Nuclear Fuel Storage (National 

Academies Press: 2006) (NAS Report) 

c. Gordon R. Thompson, ‘‘Risks and 

Risk-Reducing Options Associated with 

Pool Storage of Spent Nuclear Fuel at 

the Pilgrim and Vermont Yankee 

Nuclear Power Plants,’’ May 25, 2006 

(Thompson Report) 

3. Specifically, the Petitioners 

asserted that the ‘‘new and significant’’

information shows the following: 

a. The fuel will burn if the water level 

in an SFP drops to the point where the 

tops of the fuel assemblies are 

uncovered (complete or partial water 

loss resulting from SFP drainage being 

caused by either an accident or terrorist 

attack). 

b. The fuel will burn regardless of its 

age. 

c. The zirconium fire will propagate 

to other assemblies in the pool. 

d. The zirconium fire may be 

catastrophic. 

e. A severe accident caused by an 

intentional attack on a nuclear power 

plant SFP is ‘‘reasonably foreseeable.’’

The Petitioners also asserted that new 

and significant information shows that 

the radiological risk of a zirconium fire 

in a high-density SFP at an operating 

nuclear power plant can be comparable 

to, or greater than, the risk of a coredegradation event of non-malicious 

origin (i.e., a ‘‘severe accident’’) at the 

plant’s reactor. Consequently, the 

Petitioners asserted that SFP fires must 

be considered within the body of severe 

accident mitigation alternatives 

(SAMAs). 

II. Petitioners’ Requests 

PRM–51–10 requested that the NRC 

take the following actions: 

1. Consider new and significant 

information showing that the NRC’s 

characterization of the environmental 

impacts of spent fuel storage as 

insignificant in NUREG–1437 is 

incorrect. 

2. Revoke the regulations which 

codify that incorrect conclusion and 

excuse consideration of spent fuel 

storage impacts in NEPA decisionmaking documents, namely, 10 CFR 

51.53(c)(2), 51.95(c) and Table B–1, 

‘‘Summary of Findings on NEPA Issues 

for License Renewal of Nuclear Power 

Plants,’’ of appendix B to subpart A of 

10 CFR Part 51. Further, revoke 10 CFR 

51.23(a) and (b), 51.30(b), 51.53, 51.61, 

and 51.80(b) to the extent that these 

regulations find, imply, or assume that 

environmental impacts of high-density 

pool storage are insignificant, and 

therefore need not be considered in any 

plant-specific NEPA analysis. 

3. Issue a generic determination that 

the environmental impacts of highdensity pool storage of spent fuel are 

significant. 

4. Require that any NRC licensing 

decision that approves high-density 

pool storage of spent fuel at a nuclear 

power plant, or any other facility, must 

be accompanied by a plant-specific EIS 

that addresses the environmental 

impacts of high-density pool storage of 

spent fuel at that nuclear plant and a 

reasonable array of alternatives for 

avoiding or mitigating those impacts. 

5. Amend its regulations to require 

that SAMAs that must be discussed in 

utility company environmental reports 

(ERs) and NRC supplemental EISs for 

individual plants under 10 CFR 

51.53(c)(3)(ii)(L) and Table B–1 of 

appendix B to subpart A of 10 CFR part 

51 (‘‘Postulated Accidents: Severe 

Accidents’’) must include alternatives to 

avoid, or mitigate, the impacts of highdensity pool zirconium fires. 

PRM–51–12 incorporates by reference 

PRM–51–10. PRM–51–12 requested that 

the NRC take the following actions: 

1. Rescind all NRC regulations found 

in 10 CFR part 51 that imply, find, or 

determine that the potential 

environmental effects of high-density 

pool storage of spent nuclear fuel are 

not significant for purposes of NEPA 

and NEPA analysis. 

2. Adopt, and issue, a generic 

determination that approval of such 

storage at a nuclear power plant, or any 

other facility, does constitute a major 

federal action that may have a 

significant effect on the human 

environment. 

3. Require that no NRC licensing 

decision that approves high-density 

pool storage of spent nuclear fuel at a 

nuclear power plant, or other storage 

facility, may issue without the prior 

adoption and certification of an EIS that 

complies with NEPA in all respects, 

including full identification, analysis, 

and disclosure of the potential 

environmental effects of such storage, 

including the potential for accidental or 

deliberately caused release of 

radioactive products to the 

environment, whether by accident or 

through acts of terrorism, as well as full 

and adequate discussion of potential 

mitigation for such effects, and full 

discussion of an adequate array of 

alternatives to the proposed storage 

project. 

III. Public Comments 

The NRC’s notice of receipt and 

request for public comment invited 

interested persons to submit comments. 

The comment period for PRM 51–10 

originally closed on January 16, 2007, 

but was extended through March 19, 

2007. The public comment period for 

PRM 51–12 closed on July 30, 2007. 

Accordingly, the NRC considered 

comments received on both petitions 

through the end of July 2007. The NRC 

received 1,676 public comments, with 

1,602 of these being nearly identical 

form e-mail comments supporting the 

petitions. Sixty-nine other comments 

also support the petitions. These 

comments were submitted by States, 

private organizations, and members of 

the U.S. Congress. Two letters from the 

Nuclear Energy Institute (NEI) oppose 

the petitions, and three nuclear industry 

comments endorse NEI’s comments. 

In general, the comments supporting 

the petitions focused on the following 

main elements of the petitions: 

• NRC should evaluate the 

environmental impacts (large 

radioactive releases and contamination 

of vast areas) of severe accidents and 

intentional attacks on high-density SFP 

storage in its licensing decisions (NEPA 

analysis). 

• The 2006 decision of the United 

States Court of Appeals for the Ninth 

Circuit, San Luis Obispo Mothers for 

Peace v. NRC, 449 F.3d 1016 (9th Cir. 

2006), cert. denied 127 S. Ct. 1124 

(2007), concluded that the NRC must 

evaluate the environmental impacts of a 

terrorist attack on SFP storage in its 

licensing decisions. 

• NRC’s claim that the likelihood of 

a SFP zirconium fire is remote is 

incorrect. Partial loss of water in an SFP 

could lead to a zirconium fire and 

release radioactivity to the environment. 

• NRC’s characterization of the 

environmental impacts of high-density 

SFP storage as ‘‘insignificant’’ in 

NUREG–1437 is incorrect, and the NRC 

should revoke the regulations which 

codify this. 

• Any licensing decision approving 

high-density spent fuel storage should 

have an EIS. 

Comments opposing the petitions 

centered on the following: 

• Petitioners failed to show that 

regulatory relief is needed to address 

‘‘new and significant’’ information 

concerning the potential for spent fuel 

zirconium fires in connection with highdensity SFP storage. None of the 

documents that the Petitioners cited or 

referenced satisfy the NRC’s standard 

for new and significant information. 

• Petitioners failed to show that the 

Commission should rescind its Waste 

Confidence decision codified at 10 CFR 

51.23, or change its determination that 

the environmental impacts of highdensity spent fuel storage are 

insignificant. 

• The Commission has recently 

affirmed its longstanding view that 

NEPA demands no terrorism inquiry, 


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1A note to Table B–1 states that significance 

levels have not been assigned ‘‘for collective off site 

radiological impacts from the fuel cycle and from 

high level waste and spent fuel disposal.’’ 10 CFR 

part 51, subpart A, app. B, Table B–1, n. 2. 

and that the NRC therefore need not 

consider the environmental 

consequences of hypothetical terrorist 

attacks on NRC-licensed facilities. 

• The Commission’s rejection of the 

Ninth Circuit Court’s view is consistent 

with the U.S. Supreme Court’s position 

that NEPA should not be read to force 

agencies to consider environmental 

impacts for which they cannot 

reasonably be held responsible. 

Moreover, the NRC has, in fact, 

examined terrorism under NEPA and 

found the impacts similar to the impacts 

of already-analyzed, severe reactor 

accidents. 

The NRC reviewed and considered 

the comments in its decision to deny 

both petitions, as discussed in the 

following sections: 

IV. NEPA and NUREG–1437 

The NRC’s environmental protection 

regulations in 10 CFR Part 51 identify 

renewal of a nuclear power plant 

operating license as a major federal 

action significantly affecting the quality 

of the human environment. As such, an 

EIS is required for a plant license 

renewal review in accordance with the 

NEPA. The Petitioners challenge 

NUREG–1437, which generically 

assesses the significance of various 

environmental impacts associated with 

the renewal of nuclear power plant 

licenses. NUREG–1437 summarizes the 

findings of a systematic inquiry into the 

potential environmental consequences 

of operating individual nuclear power 

plants for an additional 20 years. The 

findings of NUREG–1437 are codified in 

Table B–1 of appendix B to subpart A 

of 10 CFR part 51. 

The NUREG–1437 analysis identifies 

the attributes of the nuclear power 

plants, such as major features and plant 

systems, and the ways in which the 

plants can affect the environment. The 

analysis also identifies the possible 

refurbishment activities and 

modifications to maintenance and 

operating procedures that might be 

undertaken given the requirements of 

the safety review as provided for in the 

NRC’s nuclear power plant license 

renewal regulations at 10 CFR part 54. 

NUREG–1437 assigns one of three 

impact levels (small, moderate, or large) 

to a given environmental resource (e.g., 

air, water, or soil). A small impact 

means that the environmental effects are 

not detectable, or are so minor that they 

will neither destabilize, nor noticeably 

alter, any important attribute of the 

resource. A moderate impact means that 

the environmental effects are sufficient 

to alter noticeably, but not to 

destabilize, important attributes of the 

resource. A large impact means that the 

environmental effects are clearly 

noticeable, and are sufficient to 

destabilize important attributes of the 

resource. 

In addition to determining the 

significance of environmental impacts 

associated with license renewal, the 

NRC determined whether the analysis in 

NUREG–1437 for a given resource can 

be applied to all plants. Under the 

NUREG–1437 analysis, impacts will be 

considered Category 1 or Category 2. A 

Category 1 determination means that the 

environmental impacts associated with 

that resource are generic (i.e., the same) 

for all plants. A Category 2 

determination means that the 

environmental impacts associated with 

that resource cannot be generically 

assessed, and must be assessed on a 

plant-specific basis. 

The NRC regulations at 10 CFR part 

51, subpart A, appendix B, Table B–1 

and NUREG–1437 set forth three criteria 

for an issue to be classified as Category 

1. The first criterion is that the 

environmental impacts associated with 

that resource have been determined to 

apply to all plants. The second criterion 

is that a single significance level (i.e., 

small, moderate, or large) has been 

assigned to the impacts.1 The third 

criterion is that the mitigation of any 

adverse impacts associated with the 

resource has been considered in 

NUREG–1437 and further, it has been 

determined that additional plantspecific mitigation measures are not 

likely to be sufficiently beneficial to 

warrant implementation. For Category 1 

issues, the generic analysis may be 

adopted in each plant-specific license 

renewal review. 

A Category 2 classification means that 

the NUREG–1437 analysis does not 

meet the criteria of Category 1. Thus, on 

that particular environmental issue, 

additional plant-specific review is 

required and must be analyzed by the 

license renewal applicant in its ER. 

For each license renewal application, 

the NRC will prepare a draft 

supplemental EIS (SEIS) to analyze 

those plant-specific (Category 2) issues. 

Neither the SEIS nor the ER is required 

to cover Category 1 issues. However, 

both are required to consider any new 

and significant information for Category 

1 or unidentified issues. The draft SEIS 

is made available for public comment. 

After considering public comments, the 

NRC will prepare and issue the final 

SEIS in accordance with 10 CFR 51.91 

and 51.93. The final SEIS and NUREG–

1437, together, serve as the requisite 

NEPA analysis for any given license 

renewal application. 

The NUREG–1437 analysis, as shown 

in Table B–1 of appendix B to subpart 

A of 10 CFR part 51, found that the 

environmental impact of the storage of 

spent nuclear fuel, including highdensity storage, in SFPs, during any 

plant refurbishment or plant operation 

through the license renewal term, are of 

a small significance level and meet all 

Category 1 criteria. It is this finding that 

the Petitioners challenge. After 

reviewing the petitions and the public 

comments received, the NRC has 

determined that its findings in NUREG–

1437 and in Table B–1 remain valid, 

both for SFP accidents and for potential 

terrorist attacks that could result in an 

SFP zirconium fire. 

V. Reasons for Denial—General 

A. Spent Fuel Pools 

Spent nuclear fuel offloaded from a 

reactor is stored in a SFP. The SFPs at 

all nuclear plants in the United States 

are massive, extremely-robust structures 

designed to safely contain the spent fuel 

discharged from a nuclear reactor under 

a variety of normal, off-normal, and 

hypothetical accident conditions (e.g., 

loss of electrical power, floods, 

earthquakes, or tornadoes). SFPs are 

made of thick, reinforced, concrete 

walls and floors lined with welded, 

stainless-steel plates to form a leak-tight 

barrier. Racks fitted in the SFPs store 

the fuel assemblies in a controlled 

configuration (i.e., so that the fuel is 

both sub-critical and in a coolable 

geometry). Redundant monitoring, 

cooling, and makeup-water systems are 

provided. The spent fuel assemblies are 

positioned in racks at the bottom of the 

pool, and are typically covered by at 

least 25 feet of water. SFPs are 

essentially passive systems. 

The water in the SFPs provides 

radiation shielding and spent fuel 

assembly cooling. It also captures 

radionuclides in case of fuel rod leaks. 

The water in the pool is circulated 

through heat exchangers for cooling. 

Filters capture any radionuclides and 

other contaminants that get into the 

water. Makeup water can also be added 

to the pool to replace water loss. 

SFPs are located at reactor sites, 

typically within the fuel-handling 

(pressurized-water reactor) or reactor 

building (boiling-water reactor). From a 

structural point of view, nuclear power 

plants are designed to protect against 

external events such as tornadoes, 

hurricanes, fires, and floods. These 

structural features, complemented by 

the deployment of effective and visible 


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2For additional related information, please see 

the NRC fact sheet ‘‘NRC Review of Paper on 

Reducing Hazards From Stored Spent Nuclear 

Fuel,’’ which is available on the NRC’s public Web 

site at: http://www.nrc.gov/reading-rm/doccollections/fact-sheets/reducing-hazards-spentfuel.html. 

3The DBT represents the largest threat against 

which a private sector facility can be reasonably 

expected to defend with high assurance. The NRC’s 

DBT rule was published in the Federal Register on 

March 19, 2007 (72 FR 12705). 

4The American Society of Mechanical Engineers 

(ASME) ‘‘Standard for Probabilistic Risk 

Assessment for Nuclear Power Plant Applications,’’

ASME RA–S–2002, defines risk as the probability 

and consequences of an event, as expressed by the 

risk ‘‘triplet’’ that is the answer to the following 

three questions: (1) What can go wrong? (2) How 

likely is it? and (3) What are the consequences if 

it occurs? 

5The Commission’s Safety Goals identified two 

quantitative objectives concerning mortality risks: 

(1) The risk to an average individual in the vicinity 

of a nuclear power plant of prompt fatalities that 

might result from reactor accidents should not 

exceed one-tenth of one percent (0.1 percent) of the 

sum of prompt fatality risks resulting from other 

accidents in which members of the U.S. population 

are generally exposed; and (2) The risk to the 

population in the area near a nuclear power plant 

of cancer fatalities that might result from nuclear 

power plant operation should not exceed one-tenth 

of one percent (0.1 percent) of the sum of cancer 

fatality risks resulting from all other causes. 

6Sandia National Laboratories, ‘‘Mitigation of 

Spent Fuel Pool Loss-of-Coolant Inventory 

Accidents and Extension of Reference Plant 

Analyses to Other Spent Fuel Pools,’’ Sandia Letter 

Report, Revision 2 (November 2006) incorporates 

and summarizes the Sandia Studies. This document 

is designated ‘‘Official Use Only—Security Related 

Information.’’ A version of the Sandia Studies, with 

substantial redactions, was made public as a 

response to a Freedom of Information Act request. 

It is available on the NRC’s Agencywide Document 

Access and Management System (ADAMS). The 

redacted version can be found under ADAMS 

Accession No. ML062290362. For access to 

ADAMS, contact the NRC Public Document Room 

Reference staff at 1–800–397–4209, 301–415–4737, 

or by e-mail to pdr.resource@nrc.gov. For additional 

related information, please see the NRC fact sheet 

‘‘NRC Review of Paper on Reducing Hazards From 

Stored Spent Nuclear Fuel,’’ which is available on 

the NRC’s public Web site at: http://www.nrc.gov/ 

reading-rm/doc-collections/fact-sheets/reducinghazards-spent-fuel.html. 

physical security protection measures, 

are also deterrents to terrorist activities. 

Additionally, the emergency procedures 

and SAMA guidelines developed for 

reactor accidents provide a means for 

mitigating the potential consequences of 

terrorist attacks. 

B. Physical Security 

The Petitioners raise the possibility of 

a successful terrorist attack as increasing 

the probability of an SFP zirconium fire. 

As the NAS Report found, the 

probability of terrorist attacks on SFPs 

cannot be reliably assessed, 

quantitatively or comparatively. The 

NRC has determined, however, that 

security and mitigation measures the 

NRC has imposed upon its licensees 

since September 11, 2001, and national 

anti-terrorist measures to prevent, for 

example, aircraft hijackings, coupled 

with the robust nature of SFPs, make the 

probability of a successful terrorist 

attack, though numerically 

indeterminable, very low. 

The NRC’s regulations and security 

orders require licensees to develop 

security and training plans for NRC 

review and approval, implement 

procedures for these plans, and to 

periodically demonstrate proficiency 

through tests and exercises.2 In 

addition, reactor physical security 

systems use a defense-in-depth concept, 

involving the following: 

• Vehicle (external) barriers. 

• Fences. 

• Intrusion detection, alarm, and 

assessment systems. 

• Internal barriers. 

• Armed responders. 

• Redundant alarm stations with 

command, control, and communications 

systems. 

• Local law enforcement authority’s 

response to a site and augmentation of 

the on-site armed response force. 

• Security and emergencypreparedness procedure development 

and planning efforts with local officials. 

• Security personnel training and 

qualification. 

The NRC’s regulatory approach for 

maintaining the safety and security of 

power reactors, and thus SFPs, is based 

upon robust designs that are coupled 

with a strategic triad of preventive/ 

protective systems, mitigative systems, 

and emergency-preparedness and 

response. Furthermore, each licensee’s 

security functions are integrated and 

coordinated with reactor operations and 

emergency response functions. 

Licensees develop protective strategies 

in order to meet the NRC design-basis 

threat (DBT).3 In addition, other Federal 

agencies such as the Federal Aviation 

Administration, the Federal Bureau of 

Investigation, and the Department of 

Homeland Security have taken 

aggressive steps to prevent terrorist 

attacks in the United States. Taken as a 

whole, these systems, personnel, and 

procedures provide reasonable 

assurance that public health and safety, 

the environment, and the common 

defense and security will be adequately 

protected. 

C. Very Low Risk 

Risk is defined as the probability of 

the occurrence of a given event 

multiplied by the consequences of that 

event.4 Studies conducted over the last 

three decades have consistently shown 

that the probability of an accident 

causing a zirconium fire in an SFP to be 

lower than that for severe reactor 

accidents. The risk of beyond designbasis accidents (DBAs) in SFPs was first 

examined as part of the landmark 

Reactor Safety Study: An Assessment of 

Accident Risks in U.S. Commercial 

Nuclear Power Plants (WASH–1400, 

NUREG–75/014, 1975), and was found 

to be several orders of magnitude below 

those involving the reactor core. The 

risk of an SFP accident was re-examined 

in the 1980’s as Generic Issue 82, 

Beyond Design Basis Accidents in Spent 

Fuel Pools, in light of increased use of 

high-density storage racks and 

laboratory studies that indicated the 

possibility of zirconium fire propagation 

between assemblies in an air-cooled 

environment. The risk assessment and 

cost-benefit analyses developed through 

this effort, NUREG–1353, Regulatory 

Analysis for the Resolution of Generic 

Issue 82, Beyond Design Basis Accidents 

in Spent Fuel Pools, Section 6.2, April 

1989, concluded that the risk of a severe 

accident in the SFP was low and 

‘‘appear[s] to meet’’ the objectives of the 

Commission’s ‘‘Safety Goals for the 

Operations of Nuclear Power Plants; 

Policy Statement,’’ (August 4, 1986; 51 

FR 28044), as amended (August 21, 

1986; 51 FR 30028), and that no new 

regulatory requirements were 

warranted.5

SFP accident risk was re-assessed in 

the late 1990s to support a risk-informed 

rulemaking for permanently shutdown, 

or decommissioned, nuclear power 

plants. The study, NUREG–1738, 

Technical Study of Spent Fuel Pool 

Accident Risk at Decommissioning 

Nuclear Power Plants, January 2001, 

conservatively assumed that if the water 

level in the SFP dropped below the top 

of the spent fuel, an SFP zirconium fire 

involving all of the spent fuel would 

occur, and thereby bounded those 

conditions associated with air cooling of 

the fuel (including partial-draindown 

scenarios) and fire propagation. Even 

when all events leading to the spent fuel 

assemblies becoming partially or 

completely uncovered were assumed to 

result in an SFP zirconium fire, the 

study found the risk of an SFP fire to be 

low and well within the Commission’s 

Safety Goals. 

Furthermore, significant additional 

analyses have been performed since 

September 11, 2001, that support the 

view that the risk of a successful 

terrorist attack (i.e., one that results in 

an SFP zirconium fire) is very low. 

These analyses were conducted by the 

Sandia National Laboratories and are 

collectively referred to herein as the 

‘‘Sandia studies.’’ 6 The Sandia studies 


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7NAS Report at 53. 

are sensitive security related 

information and are not available to the 

public. The Sandia studies considered 

spent fuel loading patterns and other 

aspects of a pressurized-water reactor 

SFP and a boiling-water reactor SFP, 

including the role that the circulation of 

air plays in the cooling of spent fuel. 

The Sandia studies indicated that there 

may be a significant amount of time 

between the initiating event (i.e., the 

event that causes the SFP water level to 

drop) and the spent fuel assemblies 

becoming partially or completely 

uncovered. In addition, the Sandia 

studies indicated that for those 

hypothetical conditions where air 

cooling may not be effective in 

preventing a zirconium fire (i.e., the 

partial drain down scenario cited by the 

Petitioners), there is a significant 

amount of time between the spent fuel 

becoming uncovered and the possible 

onset of such a zirconium fire, thereby 

providing a substantial opportunity for 

both operator and system event 

mitigation. 

The Sandia studies, which more fully 

account for relevant heat transfer and 

fluid flow mechanisms, also indicated 

that air-cooling of spent fuel would be 

sufficient to prevent SFP zirconium fires 

at a point much earlier following fuel 

offload from the reactor than previously 

considered (e.g., in NUREG–1738). 

Thus, the fuel is more easily cooled, and 

the likelihood of an SFP fire is therefore 

reduced. 

Additional mitigation strategies 

implemented subsequent to September 

11, 2001, enhance spent fuel coolability 

and the potential to recover SFP water 

level and cooling prior to a potential 

SFP zirconium fire. The Sandia studies 

also confirmed the effectiveness of 

additional mitigation strategies to 

maintain spent fuel cooling in the event 

the pool is drained and its initial water 

inventory is reduced or lost entirely. 

Based on this more recent information, 

and the implementation of additional 

strategies following September 11, 2001, 

the probability, and accordingly, the 

risk, of a SFP zirconium fire initiation 

is expected to be less than reported in 

NUREG–1738 and previous studies. 

Given the physical robustness of 

SFPs, the physical security measures, 

and SFP mitigation measures, and based 

upon NRC site evaluations of every SFP 

in the United States, the NRC has 

determined that the risk of an SFP 

zirconium fire, whether caused by an 

accident or a terrorist attack, is very 

low. As such, the NRC’s generic 

findings in NUREG–1437, as further 

reflected in Table B–1 of appendix B to 

subpart A of 10 CFR part 51, remain 

valid. 

VI. Reasons for Denial—NRC 

Responses to Petitioners’ Assertions 

A. New and Significant Information 

The Petitioners asserted that new and 

significant information shows that the 

NRC incorrectly characterized the 

environmental impacts of spent fuel 

storage as ‘‘insignificant.’’ The 

information relied upon by the 

Petitioners, however, is neither ‘‘new’’

nor ‘‘significant,’’ within the NRC’s 

definition of those terms. The NRC 

defines these terms in its Supplement 1 

to NRC Regulatory Guide 4.2, 

Preparation of Supplemental 

Environmental Reports for Applications 

to Renew Nuclear Power Plant 

Operating Licenses, Chapter 5 

(September 2000) (RG 4.2S1). ‘‘New and 

significant’’ information, which would 

require supplementing NUREG–1437, is 

defined as follows: 

(1) Information that identifies a significant 

environmental issue that was not considered 

in NUREG–1437 and, consequently, not 

codified in Appendix B to Subpart A of 10 

CFR Part 51, or 

(2) Information that was not considered in 

the analyses summarized in NUREG–1437 

and that leads to an impact finding different 

from that codified in 10 CFR Part 51. 

The Petitioners’ ‘‘new and 

significant’’ information does not meet 

the RG 4.2S1 criteria. NUREG–1437 

(Sections 6.4.6.1. to 6.4.6.3.), and the 

analyses cited therein, including the 

NRC’s ‘‘Waste Confidence Rule’’

(September 18, 1990; 55 FR 38474, 

38480–81), extensively considered the 

risk of SFP accidents. Moreover, to the 

extent any information submitted by the 

Petitioners was not considered in 

NUREG–1437, none of the information 

is ‘‘significant,’’ because, as explained 

further in this document, it would not 

lead to ‘‘an impact finding different 

from that codified in 10 CFR Part 51,’’

or as set forth in NUREG–1437. 

B. Spent Fuel Assemblies Will Burn If 

Uncovered 

The Petitioners asserted that new and 

significant information, consisting 

primarily of the Thompson Report, 

NUREG–1738, and a governmentsponsored study, the NAS Report, show 

that spent fuel will burn if the water 

level in an SFP drops to the point where 

the tops of the fuel assemblies are 

uncovered. Specifically, the Petitioners 

asserted that the NRC fails to recognize 

the danger of a partial loss of water in 

an SFP, which in the Petitioners’ view, 

is more likely to cause an SFP 

zirconium fire than a complete loss of 

water, because the remaining water will 

block the circulating air that would 

otherwise act to cool the spent fuel 

assemblies. 

The NRC does not agree with the 

Petitioners’ assertions. The NRC has 

determined that a zirconium cladding 

fire does not occur when only the tops 

of the fuel assemblies are uncovered. In 

reality, a zirconium fire cannot occur 

unless fuel uncovering is more 

substantial. Even then, the occurrence of 

a zirconium fire requires a number of 

conditions which are extremely unlikely 

to occur together. The Sandia studies 

provide a more realistic assessment of 

the coolability of spent fuel under a 

range of conditions and a better 

understanding of the actual safety 

margins than was indicated in NUREG–

1738. The Sandia studies have 

consistently and conclusively shown 

that the safety margins are much larger 

than indicated by previous studies such 

as NUREG–1738. 

1. Heat Transfer Mechanisms 

Past NRC studies of spent fuel heatup 

and zirconium fire initiation 

conservatively did not consider certain 

natural heat-transfer mechanisms which 

would serve to limit heatup of the spent 

fuel assemblies and prevent a zirconium 

fire. In particular, these studies, 

including NUREG–1738, did not 

consider heat transfer from higherdecay-power assemblies to older, lowerdecay-power fuel assemblies in the SFP. 

This heat transfer would substantially 

increase the effectiveness of air cooling 

in the event the SFP is drained, far 

beyond the effectiveness of air cooling 

cited in past studies. Both the Sandia 

studies and the NAS Report confirm the 

NRC conclusion that such heat transfer 

mechanisms allow rapid heat transfer 

away from the higher-powered 

assemblies. The NAS Report also noted 

that such heat transfer could air-cool the 

assemblies to prevent a zirconium fire 

within a relatively short time after the 

discharge of assemblies from the reactor 

to the SFP.7 Thus, air cooling is an 

effective, passive mechanism for cooling 

spent fuel assemblies in the pool. 

2. Partial Drain-Down 

Air cooling is less effective under the 

special, limited condition where the 

water level in the SFP drops to a point 

where water and steam cooling is not 

sufficient to prevent the fuel from 

overheating and initiating a zirconium 

fire, but the water level is high enough 

to block the full natural circulation of 

air flow through the assemblies. This 

condition has been commonly referred 

to as a partial draindown, and is cited 

in the Thompson Report. Under those 


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8Two occurrences in 100,000 reactor years. 

9One occurrence in 10,000 reactor years. 

conditions, however, it is important to 

realistically model the heat transfer 

between high- and low-powered fuel 

assemblies. The heat transfer from hot 

fuel assemblies to cooler assemblies will 

delay the heat-up of assemblies, and 

allow plant operators time to take 

additional measures to restore effective 

cooling to the assemblies. Further, for 

very low-powered assemblies, the 

downward flow of air into the 

assemblies can also serve to cool the 

assembly even though the fullcirculation flow path is blocked. Also, 

as discussed further in this document, 

all nuclear plant SFPs have been 

assessed to identify additional, existing 

cooling capability and to provide new 

supplemental cooling capability which 

could be used during such rare events. 

This supplemental cooling capability 

specifically addresses the cooling needs 

during partial draindown events, and 

would reduce the probability of a 

zirconium fire even during those 

extreme events. 

3. License Amendments 

In January 2006, the nuclear industry 

proposed a combination of internal and 

external strategies to enhance the spent 

fuel heat removal capability systems at 

every operating nuclear power plant. 

The internal strategy implements a 

diverse SFP makeup system that can 

supply the required amount of makeup 

water and SFP spray to remove decay 

heat. The external strategy involves 

using an independently-powered, 

portable, SFP coolant makeup and spray 

capability system that enhances spray 

and rapid coolant makeup to mitigate a 

wide range of possible scenarios that 

could reduce SFP water levels. In 

addition, in cases where SFP water 

levels can not be maintained, leakage 

control strategies would be considered 

along with guidance to maximize spray 

flows to the SFP. Time lines have been 

developed that include both dispersed 

and non-dispersed spent fuel storage. 

The NRC has approved license 

amendments and issued safety 

evaluations to incorporate these 

strategies into the plant licensing bases 

of all operating nuclear power plants in 

the United States. 

C. Fuel Will Burn Regardless of Its Age 

The NRC disagrees with the 

Petitioners’ assertion that fuel will burn 

regardless of age. Older fuel (fuel which 

has been discharged from the reactor for 

a longer time) is more easily cooled and 

is less likely to ignite because of its 

lower decay power. A study relied upon 

by the Petitioners, NUREG–1738, did 

conservatively assume that spent fuel 

stored in an SFP, regardless of age, may 

be potentially vulnerable to a partial 

drain down event, and that the 

possibility of a zirconium fire could not 

be ruled out on a generic basis. This 

conclusion, however, was in no sense a 

statement of certainty and was made in 

order to reach a conclusion on a generic 

basis, without relying on any plantspecific analyses. 

Furthermore, the SFP zirconium fire 

frequency in NUREG–1738 was 

predicated on a bounding, conservative 

assumption that an SFP fire involving 

all of the spent fuel would occur if the 

water level in the SFP dropped below 

the top of the spent fuel. The NUREG–

1738 analysis did not attempt to 

specifically address a number of issues 

and actions that would substantially 

reduce the likelihood of a zirconium 

fire, potentially rendering the frequency 

estimate to be remote and speculative. 

For example, NUREG–1738 did not 

account for the additional time available 

following the spent fuel being partially 

or completely uncovered, but prior to 

the onset of a zirconium fire, that would 

allow for plant operator actions, makeup 

of SFP water levels, and other 

mitigation measures. In addition, 

NUREG–1738 did not consider the 

impact of plant and procedure changes 

implemented as a result of the events of 

the September 11, 2001, terrorist 

attacks. NUREG–1738 did clarify that 

the likelihood of a zirconium fire under 

such conditions could be reduced by 

accident management measures, but it 

was not the purpose of NUREG–1738 to 

evaluate such accident management 

measures. 

D. SFP Zirconium Fire Will Propagate 

Although it is possible that once a 

spent fuel assembly ignites, the 

zirconium fire can propagate to other 

assemblies in the SFP, the NRC has 

determined (as explained previously) 

that the risk of an SFP zirconium fire 

initiation is very low. 

E. SFP Zirconium Fire May Be 

Catastrophic 

1. Not New and Significant Information; 

Very Low Probability 

The Massachusetts AG states that 

‘‘while such a catastrophic accident is 

unlikely, its probability falls within the 

range that NRC considers reasonably 

foreseeable.’’ Thus, the Petitioners 

asserted that an SFP zirconium fire 

qualifies as a DBA and, that the impacts 

of an SFP fire must be discussed in the 

ER submitted by the licensee and the 

NRC’s EIS, as well as designed against 

under NRC safety regulations. 

The facts that a SFP contains a 

potentially large inventory of 

radionuclides and that a release of that 

material could have adverse effects are 

not new. These facts are well known, 

and were considered in the risk 

evaluation of spent fuel storage 

contained in NUREG–1738. Even with 

the numerous conservatisms in the 

NUREG–1738 study, as described 

previously, the NRC was able to 

conclude that the risk from spent fuel 

storage is low, and is substantially lower 

than reactor risk. 

A study relied upon by the 

Petitioners, the Thompson Report, 

claimed that the probability (frequency) 

of an SFP zirconium fire would be 2E–

5 per year 8 for events excluding acts of 

malice (e.g., terrorism) and 1E–4 per 

year 9 for acts of malice. With respect to 

random events (i.e., excluding acts of 

malice), the NRC concludes that the 

Thompson Report estimate is overly 

conservative. A more complete and 

mechanistic assessment of the event, as 

described in section VI.E.2. of this 

Notice, and associated mitigation 

measures, leads to considerably lower 

values. With respect to events initiated 

by a terrorist attack, the NRC concludes 

that such probability (frequency) 

estimates are entirely speculative. The 

NRC also concludes that the additional 

mitigation measures for SFP events 

implemented since September 11, 2001, 

together with the more realistic 

assessment of spent fuel cooling, 

indicates that the likelihood of a 

zirconium fire, though numerically 

indeterminable, is very low. 

The 2E–5 per year estimate for events 

excluding acts of malice is based on an 

unsubstantiated assumption that 50 

percent of all severe reactor accidents 

that result in an early release of 

substantial amounts of radioactive 

material will also lead to a 

consequential SFP zirconium fire. The 

Thompson Report does not identify the 

necessary sequence of events by which 

such scenarios might lead to SFP 

zirconium fires, or discuss the 

probability of their occurrence. The 

NRC analysis in the Shearon Harris 

ASLBP proceeding (described in section 

VI.E.2. of this Notice) showed that a 

more complete and mechanistic 

assessment of the event and associated 

mitigation measures leads to 

considerably lower values. This 

assessment includes the following: 

• Frequency and characteristics of the 

releases from the containment for each 

release location; 

• Transport of gases and fission 

products within the reactor building; 


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10Carolina Power Light Co., LBP–01–9, 53 NRC 

239, 244–245 (2001). 

11 Id., 53 NRC at 267. 

12 Id., 53 NRC at 268. 

13Carolina Power Light Co., Commission Law 

Issuance (CLI)–01–11, 53 NRC 370 (2001), pet. for 

review denied, sub nom, Orange County, NC v. 

NRC, 47 Fed. Appx. 1, 2002 WL 31098379 (D.C. Cir. 

2002). 

14 ‘‘A single failure means an occurrence which 

results in the loss of capability of a component to 

perform its intended safety functions * * * Fluid 

and electric systems are considered to be designed 

against an assumed single failure if neither (1) a 

single failure of any active component * * * nor (2) 

a single failure of a passive component * * * 

results in a loss of the capability of the system to 

perform its safety functions.’’ 10 CFR Part 50, App. 

A. 

• Resulting thermal and radiation 

environments in the reactor building, 

with emphasis on areas in which SFP 

cooling and makeup equipment is 

located, and areas in which operator 

access may be needed to implement 

response actions; 

• Availability/survivability of SFP 

cooling and makeup equipment in the 

sequences of concern; and 

• Ability and likelihood of successful 

operator actions to maintain or restore 

pool cooling or makeup (including 

consideration of security enhancements 

and other mitigation measures 

implemented in response to the terrorist 

attacks of September 11, 2001). 

2. Shearon Harris Atomic Safety and 

Licensing Board Panel (ASLBP) 

Proceeding 

In the proceeding regarding the 

expansion of the SFP at the Shearon 

Harris nuclear power plant, located near 

Raleigh, North Carolina, the Shearon 

Harris intervenor described a scenario 

similar to that raised by the Petitioners, 

namely, that a severe accident at the 

adjacent reactor would result in a SFP 

zirconium fire.10 The Shearon Harris 

proceeding considered the probability of 

a sequence of the following seven 

events: 

a. A degraded core accident. 

b. Containment failure or bypass. 

c. Loss of SFP cooling. 

d. Extreme radiation levels precluding 

personnel access. 

e. Inability to restart cooling or 

makeup systems due to extreme 

radiation doses. 

f. Loss of most or all pool water 

through evaporation. 

g. Initiation of a zirconium fire in the 

SFP. 

Based on a detailed probabilistic risk 

assessment, the licensee calculated the 

probability of a severe reactor accident 

that causes an SFP zirconium fire to be 

2.78E–8 per year. The NRC staff 

calculated the probability to be 2.0E–7 

per year. The intervenor calculated the 

probability to be 1.6E–5 per year. The 

ASLBP concluded that the probability of 

the postulated sequence of events 

resulting in an SFP zirconium fire was 

‘‘conservatively in the range described 

by the Staff: 2.0E–7 per year (two 

occurrences in 10 million reactor years) 

or less.’’ 11 Accordingly, the ASLBP 

found that the occurrence of a severe 

reactor accident causing an SFP 

zirconium fire ‘‘falls within the category 

of remote and speculative matters.’’ 12

The Commission affirmed the ASLBP’s 

decision, and the United States Court of 

Appeals, District of Columbia Circuit, 

upheld the Commission decision.13

In the Shearon Harris proceeding, the 

intervenor assumed that, given an early 

containment failure or bypass, a spent 

fuel zirconium fire would occur (i.e., a 

conditional probability of 1.0). In order 

for a reactor accident to lead to a SFP 

zirconium fire a number of additional 

conditions must occur. The reactor 

accident and containment failure must 

somehow lead to a loss of SFP cooling 

and must lead to a condition where 

extreme radiation levels preclude 

personnel access to take corrective 

action. There must be then an inability 

to restart cooling or makeup systems. 

There must be a loss of significant pool 

water inventory through evaporation 

(which can take substantial time). 

Finally, the event must also lead to a 

zirconium fire. In contrast to the 

intervenor’s estimate, the licensee and 

the NRC staff estimated a conditional 

probability of about one percent that a 

severe reactor accident with 

containment failure would lead to a SFP 

accident. The NRC staff expects that the 

conditional probability of a SFP 

zirconium fire, given a severe reactor 

accident, would be similar to that 

established in the Shearon Harris 

proceeding. As such, the probability of 

a SFP zirconium fire due to a severe 

reactor accident and subsequent 

containment failure would be well 

below the Petitioners’ 2E–5 per year 

estimate. 

The 1E–4 per year estimate in the 

Thompson Report for events involving 

acts of malice assumes that there would 

be one attack on the population of U.S. 

nuclear power plants per century, and 

that this attack will be 100 percent 

successful in producing a SFP 

zirconium fire (thus, fire frequency = 

0.01 attack/year × 1.0 fire/attack × 1/104 

total reactors = 1E–4/year). The securityrelated measures and other mitigation 

measures implemented since September 

11, 2001, however, have significantly 

reduced the likelihood of a successful 

terrorist attack on a nuclear power plant 

and its associated SFP. Such measures 

include actions that would improve the 

likelihood of the following: 

a. Identifying/thwarting the attack 

before it is initiated. 

b. Mitigating the attack before it 

results in damage to the plant. 

c. Mitigating the impact of the plant 

damage such that an SFP zirconium fire 

is avoided. 

Given the implementation of 

additional security enhancements and 

mitigation strategies, as well as further 

consideration of the factors identified 

above, the NRC staff concludes that the 

frequency of SFP zirconium fires due to 

acts of malice is substantially lower 

than assumed by the Petitioners. 

3. SFP Zirconium Fire Does Not Qualify 

As a DBA 

Regarding the Petitioners’ assertion 

that a SFP zirconium fire qualifies as a 

design-basis accident (DBA), the NRC 

staff has concluded that a realistic 

probability estimate would be very low, 

such that these events need not be 

considered as DBAs or discussed in ERs 

and EISs. Moreover, the set of accidents 

that must be addressed as part of the 

design basis has historically evolved 

from deterministic rather than 

probabilistic considerations. These 

considerations, which include defensein-depth, redundancy, and diversity, are 

characterized by the use of the singlefailure criterion.14 The single-failure 

criterion, as a key design and analysis 

tool, has the direct objective of 

promoting reliability through the 

enforced provision of redundancy in 

those systems which must perform a 

safety-related function. The single 

failure criterion is codified in Appendix 

A and Appendix K to 10 CFR Part 50 

and other portions of the regulations. 

The SFP and related systems have been 

designed and approved in accordance 

with this deterministic approach. 

F. Intentional Attack on a SFP is 

‘‘Reasonably Foreseeable.’’

The Petitioners asserted that an 

intentional attack targeting a plant’s SFP 

is ‘‘reasonably foreseeable.’’

Specifically, the Petitioners raised both 

the NAS study and the decision by the 

United States Court of Appeals for the 

Ninth Circuit, San Luis Obispo Mothers 

for Peace v. NRC, 449 F.3d 1016 (9th 

Cir. 2006), cert. denied 127 S. Ct. 1124 

(2007), to support the assertion that the 

NRC’s NEPA analysis of a license 

renewal action for a given facility must 

include analysis of the environmental 

impacts associated with a terrorist 

attack on that facility. The NRC has 


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15 In the wake of the Ninth Circuit’s Mothers for 

Peace decision, the Commission decided against 

applying that holding to all licensing proceedings 

nationwide. See, e.g., Amergen Energy Co. LLC 

(Oyster Creek Nuclear Generating Station), CLI–07–

8, 65 NRC 124, 128–29 (2007), pet. for judicial 

review pending, No. 07–2271 (3d Cir.). The 

Commission will, of course, adhere to the Ninth 

Circuit decision when considering licensing actions 

for facilities subject to the jurisdiction of that 

Circuit. See id. Thus, on remand in the Mothers for 

Peace case itself, the Commission is currently 

adjudicating intervenors’ claim that the NRC Staff 

has not adequately assessed the environmental 

consequences of a terrorist attack on the Diablo 

Canyon Power Plant’s proposed facility for storing 

spent nuclear fuel in dry casks. See, Pacific Gas & 

Elec. Co., CLI–07–11, 65 NRC 148 (2007). The 

Commission’s ultimate decision in that case will 

rest on the record developed in the adjudication. 

16The NRC response to the NAS Report is 

available at ADAMS Accession No. ML0502804280. 

17Conference Committee’s Report (H. Rept. 108–

357) accompanying the Energy and Water 

Development Act, 2004 (Pub. L. 108–137, December 

3, 2003). 

18NAS Report at 6 (emphasis in the original). 

19NAS Report at 30. 

20 Department of Transportation v. Public Citizen, 

541 U.S. 752, 767 (2004) citing Metropolitan Edison 

v. People Against Nuclear Energy, 460 U.S. 766, 774 

(1983). 

considered both the NAS Report and the 

Ninth Circuit decision, and remains of 

the view that an analysis of the 

environmental impacts of a hypothetical 

terrorist attack on an NRC-licensed 

facility is not required under NEPA.15

But, if an analysis of a hypothetical 

terrorist attack were required under 

NEPA, the NRC has determined that the 

environmental impacts of such a 

terrorist attack would not be significant, 

because the probability of a successful 

terrorist attack (i.e., one that causes an 

SFP zirconium fire, which results in the 

release of a large amount of radioactive 

material into the environment) is very 

low and therefore, within the category 

of remote and speculative matters. 

1. NAS Report 

The Petitioners rely, in part, upon the 

NAS Report, the public version of 

which was published in 2006 and is 

available from NAS.16 In response to a 

direction in the Conference Committee’s 

Report accompanying the NRC’s FY 

2004 appropriation,17 the NRC 

contracted with NAS for a study on the 

safety and security of commercial spent 

nuclear fuel. The NAS made a number 

of findings and recommendations, 

including: 

• SFPs are necessary at all operating 

nuclear power plants to store recently 

discharged fuel; 

• Successful terrorist attacks on SFPs, 

though difficult, are possible; 

• The probability of terrorist attacks 

on spent fuel storage cannot be assessed 

quantitatively or comparatively; 

• If a successful terrorist attack leads 

to a propagating zirconium cladding 

fire, it could result in the release of large 

amounts of radioactive material; and 

• Dry cask storage has inherent 

security advantages over spent fuel 

storage, but it can only be used to store 

older spent fuel. 

The NAS Report found, and the NRC 

agrees, that pool storage is required at 

all operating commercial nuclear power 

plants to cool newly discharged spent 

fuel. Freshly discharged spent fuel 

generates too much decay heat to be 

placed in a dry storage cask. 

The NRC agrees with the NAS finding 

that the probability of terrorist attacks 

on spent fuel storage cannot be assessed 

quantitatively or comparatively. 

However, the NRC concludes that the 

additional mitigation measures for SFP 

events implemented since September 

11, 2001, together with a more realistic 

assessment of spent fuel cooling, as 

shown by the Sandia studies, indicates 

that the likelihood of a zirconium fire, 

though numerically indeterminate, is 

very low. 

Furthermore, the NAS Report states 

that ‘‘[i]t is important to recognize, 

however, that an attack that damages a 

power plant or its spent fuel storage 

facilities would not necessarily result in 

the release of any radioactivity to the 

environment. There are potential steps 

that can be taken to lower the potential 

consequences of such attacks.’’ 18 The 

NAS Report observed that a number of 

security improvements at nuclear power 

plants have been instituted since 

September 11, 2001, although the NAS 

did not evaluate the effectiveness and 

adequacy of these improvements and 

has called for an independent review of 

such measures. Nevertheless, the NAS 

Report states that ‘‘the facilities used to 

store spent fuel at nuclear power plants 

are very robust. Thus, only attacks that 

involve the application of large energy 

impulses or that allow terrorists to gain 

interior access have any chance of 

releasing substantial quantities of 

radioactive material.’’ 19

As discussed previously, following 

the terrorist attacks of September 11, 

2001, the NRC has required that nuclear 

power plant licensees implement 

additional security measures and 

enhancements the Commission believes 

have made the likelihood of a successful 

terrorist attack on an SFP remote. 

2. Ninth Circuit Decision 

The Petitioners asserted that the NRC 

should follow the decision of the United 

States Court of Appeals for the Ninth 

Circuit, San Luis Obispo Mothers for 

Peace v. NRC, 449 F.3d 1016 (9th Cir. 

2006), cert. denied 127 S. Ct. 1124 

(2007), by considering the 

environmental impacts of intentional 

attacks on nuclear power plant fuel 

storage pools in all licensing decisions. 

The Ninth Circuit held that the NRC 

could not, under NEPA, categorically 

refuse to consider the consequences of 

a terrorist attack against a spent fuel 

storage facility on the Diablo Canyon 

reactor site. 

The NRC’s longstanding view is that 

NEPA does not require the NRC to 

consider the environmental 

consequences of hypothetical terrorist 

attacks on NRC-licensed facilities. 

NEPA requires that there be a 

‘‘reasonably close causal relationship’’

between the federal agency action and 

the environmental consequences.20 The 

NRC renewal of a nuclear power plant 

license would not cause a terrorist 

attack; a terrorist attack would be 

caused by the terrorists themselves. 

Thus, the renewal of a nuclear power 

plant license would not be the 

‘‘proximate cause’’ of a terrorist attack 

on the facility. 

If NEPA required the NRC to consider 

the impacts of a terrorist attack, 

however, the NRC findings would 

remain unchanged. As previously 

described, the NRC has required, and 

nuclear power plant licensees have 

implemented, various security and 

mitigation measures that, along with the 

robust nature of SFPs, make the 

probability of a successful terrorist 

attack (i.e., one that causes an SFP 

zirconium fire, which results in the 

release of a large amount of radioactive 

material into the environment) very low. 

As such, a successful terrorist attack is 

within the category of remote and 

speculative matters for NEPA 

considerations; it is not ‘‘reasonably 

foreseeable.’’ Thus, on this basis, the 

NRC finds that the environmental 

impacts of renewing a nuclear power 

plant license, in regard to a terrorist 

attack on an SFP, are not significant. 

The NRC has determined that its 

findings related to the storage of spent 

nuclear fuel in pools, as set forth in 

NUREG–1437 and in Table B–1 of 

Appendix B to Subpart A of 10 CFR Part 

51, remain valid. Thus, the NRC has met 

and continues to meet its obligations 

under NEPA. 

G. SFP Zirconium Fire Should Be 

Considered Within the Analysis of 

SAMAs 

The Petitioners asserted that SFP fires 

should be considered within the 

analysis of severe accident mitigation 

alternatives (SAMAs). While a large 

radiological release is still possible, and 


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was assessed as part of Generic Issue 82, 

Beyond Design Basis Accidents in Spent 

Fuel Pools, and later, in NUREG–1738, 

the NRC considers the likelihood of 

such an event to be lower than that 

estimated in Generic Issue 82 and 

NUREG–1738. Based on the Sandia 

studies, and on the implementation of 

additional strategies implemented 

following September 11, 2001, the 

probability of a SFP zirconium fire is 

expected to be less than that reported in 

NUREG–1738 and previous studies. 

Thus, the very low probability of an SFP 

zirconium fire would result in an SFP 

risk level less than that for a reactor 

accident. 

For example, in NUREG–1738, the 

SFP fire frequencies were conservatively 

estimated to be in the range of 5.8E–7 

per year to 2.4E–6 per year. NUREG–

1738 conservatively assumed that if the 

water level in the SFP dropped below 

the top of the spent fuel, an SFP 

zirconium fire involving all of the spent 

fuel would occur, and thereby bounded 

those conditions associated with air 

cooling of the fuel (including partialdrain down scenarios) and zirconium 

fire propagation. It did not 

mechanistically analyze the time 

between the spent fuel assemblies 

becoming partially or completely 

uncovered and the onset of a SFP 

zirconium fire, and the potential to 

recover SFP cooling and to restore the 

SFP water level within this time. 

NUREG–1738 also did not consider the 

possibility that air-cooling of the spent 

fuel alone could be sufficient to prevent 

SFP zirconium fires. 

Furthermore, the Sandia studies 

indicated that air cooling would be 

much more effective in cooling the 

spent fuel assemblies. In those cases 

where air cooling is not effective, the 

time before fuel heatup and radiological 

release would be substantially delayed, 

thus providing a substantial opportunity 

for successful event mitigation. The 

Sandia studies, which more fully 

account for relevant heat transfer and 

fluid flow mechanisms, also indicated 

that air-cooling of spent fuel would be 

sufficient to prevent SFP zirconium fires 

much earlier following fuel offload than 

previously considered (e.g., in NUREG–

1738), thereby further reducing the 

likelihood of an SFP zirconium fire. 

Additional mitigation strategies 

implemented subsequent to September 

11, 2001, will serve to further enhance 

spent fuel coolability, and the potential 

to recover SFP cooling or to restore the 

SFP water level prior to the initiation of 

an SFP zirconium fire. 

Given that the SFP risk level is less 

than that for a reactor accident, a SAMA 

that addresses SFP accidents would not 

be expected to have a significant impact 

on total risk for the site. Despite the low 

level of risk from fuel stored in SFPs, 

additional SFP mitigative measures 

have been implemented by licensees 

since September 11, 2001. These 

mitigative measures further reduce the 

risk from SFP zirconium fires, and make 

it even more unlikely that additional 

SFP safety enhancements could 

substantially reduce risk or be costbeneficial. 

VII. Denial of Petitions 

Based upon its review of the petitions, 

the NRC has determined that the studies 

upon which the Petitioners rely do not 

constitute new and significant 

information. The NRC has further 

determined that its findings related to 

the storage of spent nuclear fuel in 

pools, as set forth in NUREG–1437 and 

in Table B–1, of Appendix B to Subpart 

A of 10 CFR Part 51, remain valid. Thus, 

the NRC has met and continues to meet 

its obligations under NEPA. For the 

reasons discussed previously, the 

Commission denies PRM–51–10 and 

PRM–51–12. 

Commissioner Gregory B. Jaczko’s 

Dissenting View on the Commission’s 

Decision To Deny Two Petitions for 

Rulemaking Concerning the 

Environmental Impacts of High-Density 

Storage of Spent Nuclear Fuel in Spent 

Fuel Pools 

I disagree with the decision to deny 

the petition for rulemaking as included 

in this Federal Register notice. In 

general, I approve of the decision not to 

initiate a new rulemaking to resolve the 

petitioners’ concerns, but because 

information in support of the petition 

will be considered when the staff 

undertakes the rulemaking to update the 

Generic Environmental Impact 

Statement for license renewal, I believe 

that the decision should have been to 

partially grant the petition rather than 

deny it. 

The petitioners requested the agency 

review additional studies regarding 

spent fuel pool storage they believe 

would change the agency’s current 

generic determination that the impacts 

of high-density pool storage are ‘‘small’’. 

I believe that the agency could commit 

to reviewing the information provided 

by the petitioners, along with any other 

new information, when the agency 

updates the Generic Environmental 

Impact Statement (GEIS) for License 

Renewal in the near future. Regardless 

of whether or not the information will 

change the GEIS’ conclusions, at a 

minimum, the agency should be 

committing to ensure that this 

information is part of the analysis 

performed by the staff upon the next 

update of the GEIS. While we can not 

predict the outcome of the significance 

level that will ultimately be assigned to 

the spent fuel category in the GEIS, it 

seems an obvious commitment to ensure 

that the ultimate designation will be 

appropriately based upon all 

information available to the staff at the 

time. Thus, I believe this decision 

should be explained as a partial granting 

of the petition. It may not provide the 

petitioners with everything they want, 

but it would more clearly state the 

obvious—that this information, and any 

other new information, will be reviewed 

by the agency and appropriately 

considered when the staff begins its 

update of the license renewal GEIS. 

This specific issue illustrates a larger 

concern about how the agency handles 

petitions for rulemaking in general. I 

find it unfortunate that the agency 

appears to limit its responses to 

petitions based upon the vocabulary 

that has been established surrounding 

this program. Currently, when the 

agency discusses these petitions, we 

discuss them in the context of 

‘‘granting’’ or ‘‘denying’’ the rulemaking 

petitions. We then appear to be less 

inclined to ‘‘grant’’ unless we are 

committing to the precise actions 

requested in the petition. But these 

petitions are, by their very definition, 

requests for rulemakings; which means, 

even if we do ‘‘grant’’ a petition for 

rulemaking, we can not guarantee a 

particular outcome for the final rule. 

The final rulemaking is the result of 

staff’s technical work regarding the rule, 

public comments on the rule, and 

resolution of those comments. 

Rulemaking petitions are opportunities 

for our stakeholders to provide us with 

new ideas and approaches for how we 

regulate. By limiting our responses, we 

limit our review of the request, and 

thus, we risk missing many potential 

opportunities to improve the way we 

regulate. 

Additional Views of the Commission 

The Commission does not share 

Commissioner Jaczko’s dissenting view. 

We appreciate his statement of concern 

about the petition for rulemaking (PRM) 

process, but believe these matters are 

extraneous to the Commission’s 

analyses of the petitioners’ technical 

bases for this particular rulemaking 

request and, consequently, they had no 

bearing on the majority view. 

Specifically, the Commission does not 

agree that the petitions should be 

granted in part on the basis of the 

agency’s plan to update the Generic 

Environmental Impact Statement (GEIS) 

for License Renewal and make attendant 


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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Proposed Rules 46213 

rule changes in the future. The 

Commission’s detailed statement of 

reasons for denial of the petitions is the 

product of a careful review of the 

petitioners’ assertions and other 

associated public comments, and is 

supported by the facts before us. In 

these circumstances, the Commission 

does not believe the petitioners’ request 

can fairly, or reasonably, be ‘‘granted’’

in part based on a future undertaking 

which itself had no genesis in the 

petitioners’ requests. 

The Commission’s timely and 

decisive action in response to the two 

petitions serves the interests of the 

Commission and other participants in 

an effective, disciplined, and efficient 

rulemaking petition process. In this 

instance, a decision now has particular 

value since it directly addresses the 

petitioners’ statements of significant 

concern about certain, generic aspects of 

ongoing and future license renewal 

reviews. While the analyses performed 

to respond to these petitions will also 

undoubtedly inform NRC staff proposals 

regarding the next update of the GEIS, 

the Commission does not yet have such 

proposals before it. Any final 

Commission decisions on an updated 

GEIS would be preceded by proposed 

changes, solicitation of public comment, 

and evaluation of all pertinent 

information and public comments. 

Furthermore, a partial ‘‘granting’’ of the 

petition could imply that the 

Commission endorses the petitioners’

requests and will give them greater 

weight than other points of view during 

the GEIS rulemaking. 

As to the other matter raised in 

Commissioner Jaczko’s dissent—that of 

agency review and disposition of 

petitions for rulemaking more 

generally—while petitions for 

rulemaking are indeed opportunities for 

stakeholders to suggest new 

considerations and approaches for 

regulation, Commissioner Jaczko’s 

general concerns about the agency’s 

process for handling rulemaking 

petitions go beyond the subject of the 

Commission’s action on these petitions. 

However, this subject matter is being 

considered, as the Commission has 

instructed NRC staff [SRM dated August 

6, 2007] to conduct a review of the 

agency’s PRM process. At such time as 

staff may recommend, as an outgrowth 

of this review, specific proposals for 

Commission action which would 

strengthen the agency PRM process, the 

Commission will assess such 

recommendations and act on them, as 

appropriate. 

Dated at Rockville, Maryland, this 1st day 

of August 2008. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E8–18291 Filed 8–7–08; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 901 

[SATS No. AL–074–FOR; Docket No. OSM–

2008–0015] 

Alabama Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are announcing receipt of a 

proposed amendment to the Alabama 

regulatory program (Alabama program) 

under the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Alabama proposes revisions to its 

regulations regarding permit fees and 

civil penalties. Alabama intends to 

revise its program to improve 

operational efficiency. 

This document gives the times and 

locations that the Alabama program and 

proposed amendment to that program 

are available for your inspection, the 

comment period during which you may 

submit written comments on the 

amendment, and the procedures that we 

will follow for the public hearing, if one 

is requested. 

DATES: Comments on the proposed rule 

must be received on or before 4 p.m., 

c.t., September 8, 2008, to ensure our 

consideration. If requested, we will hold 

a public hearing on the amendment on 

September 2, 2008. We will accept 

requests to speak at a hearing until 4 

p.m., c.t. on August 25, 2008. 

ADDRESSES: You may submit comments 

by either of the following two methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. The proposed rule 

is listed under the agency name 

‘‘OFFICE OF SURFACE MINING 

RECLAMATION AND 

ENFORCEMENT’’ and has been 

assigned Docket ID: OSM–2008–0015. If 

you would like to submit comments 

through the Federal eRulemaking Portal, 

go to www.regulations.gov and do the 

following. Click on the ‘‘Advanced 

Docket Search’’ button on the right side 

of the screen. Type in the Docket ID 

OSM–2008–0015 and click the submit 

button at the bottom of the page. The 

next screen will display the Docket 

Search Results for the rulemaking. If 

you click on OSM–2008–0015, you can 

view the proposed rule and submit a 

comment. You can also view supporting 

material and any comments submitted 

by others. 

• Mail/Hand Delivery/Courier: Sherry 

Wilson, Director, Birmingham Field 

Office, Office of Surface Mining 

Reclamation and Enforcement, 135 

Gemini Circle, Suite 215, Homewood, 

Alabama 35209. Please include the 

Docket ID (OSM–2008–0015) with your 

comments. 

We cannot ensure that comments 

received after the close of the comment 

period (see DATES) or sent to an address 

other than the two listed above will be 

included in the docket for this 

rulemaking and considered. 

For additional information on the 

rulemaking process and the public 

availability of comments, see ‘‘III. Public 

Comment Procedures’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

You may receive one free copy of the 

amendment by contacting OSM’s 

Birmingham Field Office. See below FOR

FURTHER INFORMATION CONTACT. 

You may review a copy of the 

amendment during regular business 

hours at the following locations: 

Sherry Wilson, Director, Birmingham 

Field Office, Office of Surface Mining 

Reclamation and Enforcement, 135 

Gemini Circle, Suite 215, Homewood, 

Alabama 35209, Telephone: (205) 290–

7282, swilson@osmre.gov. 

Randall C. Johnson, Director, Alabama 

Surface Mining Commission, 1811 

Second Avenue, P.O. Box 2390, Jasper, 

Alabama 35502–2390, Telephone: (205) 

221–4130. 

FOR FURTHER INFORMATION CONTACT: 

Sherry Wilson, Director, Birmingham 

Field Office. Telephone: (205) 290–

7282. E-mail: swilson@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Alabama Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Alabama Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘* * * a 

State law which provides for the 

regulation of surface coal mining and 

reclamation operations in accordance 


rfrederick on PRODPC74 with PROPOSALS