[Federal Register: September 13, 1999 (Volume 64, Number 176)]
[Proposed Rules]               
[Page 49410-49413]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se99-30]                         

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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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[[Page 49410]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

[Docket No. PRM-73-10]

 
State of Nevada; Receipt of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; notice of receipt.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing for 
public comment a notice of receipt of a petition for rulemaking, dated 
June 22, 1999, which was filed with the Commission by the State of 
Nevada. The petition was docketed by the NRC on July 13, 1999, and has 
been assigned Docket No. PRM-73-10. The petitioner requests that the 
NRC amend its regulations governing safeguards for shipments of spent 
nuclear fuel against sabotage and terrorism. The petitioner requests 
that the NRC conduct a comprehensive assessment of the consequences of 
terrorist attacks that have the capability of radiological sabotage, 
including attacks against transportation infrastructure used during 
nuclear waste shipments, attacks involving capture of nuclear waste 
shipments and use of high energy explosives against a cask or casks, 
and direct attacks upon a nuclear waste shipping cask or casks using 
antitank missiles or other military weapons.

DATES: Submit comments by November 29, 1999. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Commission, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
Attention: Rulemakings and Adjudications Staff. Hand deliver comments 
to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 
4:15 p.m. Federal workdays.
    For a copy of the petition, write to David L. Meyer, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.
    You may also provide comments via the NRC's interactive rulemaking 
website at http://ruleforum.llnl.gov. This site provides the capability 
to upload comments as files (any format), if your web browser supports 
that function. For information about the interactive rulemaking 
website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail: 
cag@nrc.gov).
    The petition and copies of comments received may be inspected and 
copied for a fee at the NRC Public Document Room, 2120 L Street, NW. 
(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Chief, Rules and 
Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, Telephone: 301-415-7162 or Toll Free: 800-368-5642.

SUPPLEMENTARY INFORMATION:

The Petitioner

    The petitioner (the State of Nevada) is a corridor state for spent 
nuclear fuel (SNF) shipments, and has been a destination and origin 
state for SNF shipments to and from federal research facilities. Under 
current law, Nevada is the potential host state for a federal geologic 
repository and could become the ultimate destination for shipments of 
SNF and high-level radioactive waste (HLW). The petitioner has an 
interest in protecting the citizens of Nevada from risks associated 
with the transportation of SNF and HLW. The petitioner also has an 
interest as the entity responsible for immediate emergency response, in 
ensuring that transporters of SNF have adequately prepared for 
potential emergencies within the State of Nevada. The petitioner notes 
a particular concern for physical protection of SNF shipments under 10 
CFR part 73.

Background

    As part of this petition, the petitioner has included two separate 
reports--
    (1) Nuclear Waste Transportation Security and Safety Issues; The 
Risk of Terrorism and Sabotage Against Repository Shipments, prepared 
by Robert J. Halstead, Transportation Consultant , Portage, Wisconsin, 
and James David Ballard, School of Criminal Justice, Grand Valley State 
University, Grand Rapids, Michigan, dated October 1997 (Attachment A); 
and
    (2) The Transportation of Spent Nuclear Fuel and High-Level Waste; 
A Systematic Basis for Planning and Management at National, Regional, 
and Community Levels, prepared for the Nevada Nuclear Waste Project 
Office by the Planning Information Corporation, dated September 10, 
1996 (Attachment B).
    The petitioner's primary interest is the potential for many 
thousands of SNF and HLW shipments to Yucca Mountain and the Nevada 
Test Site. The Nuclear Waste Policy Amendments Act (NWPAA) of 1987 
designated Yucca Mountain as the site to be characterized for a 
national geologic repository for SNF and HLW. The petitioner states 
that legislation pending in Congress would designate the Nevada Test 
Site as sole location for a centralized interim storage facility. The 
petitioner states that a study prepared for the Nevada Agency for 
Nuclear Projects, estimates that 20,200 shipments (13,900 by rail/6,300 
by truck) will occur over about 30 years. The same study projected 
56,600 to 104,500 shipments over 40 years, for a repository combined 
with an interim storage facility.
    The petitioner believes that a national repository or interim 
storage facility may have a greater symbolic value to terrorists as a 
target for attack than at a reactor storage facility, and that the 
enhanced symbolic value of the facility as a target may extend to SNF 
shipments to a national repository or interim storage facility. The 
petitioner states that in a review of national storage and disposal 
policy options, the U.S. Nuclear Waste Technical Review Board (NWTRB) 
observed that compared to reactor sites ``a single facility with a 
large stockpile of spent fuel might be a more tempting and visible 
target.'' <SUP>1</SUP> The petitioner agrees with the NWTRB

[[Page 49411]]

conclusion that more analyses are needed to determine if ``either an 
at-reactor or centralized storage facility would be more exposed to 
theft or sabotage,'' and that these analyses should also consider SNF 
shipments to a centralized facility. The petitioner also believes that 
a storage or disposal facility operated by the U.S. Department of 
Energy (DOE), the U.S. government agency responsible for producing 
nuclear weapons, may have greater symbolic value to terrorists as a 
target for attack than commercial storage facilities, and that the 
enhanced symbolic value may extend to DOE's shipments of SNF and HLW to 
this type of facility.
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    \1\ Report of the U.S. Nuclear Waste Technical Review Board 
entitled ``Disposal and Storage of Spent Nuclear Fuel--Finding the 
Right Balance; A Report to Congress and the Secretary of Energy,'' 
at 20 (March 1996).
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    The petitioner believes that the nature of the terrorist threat has 
changed significantly since the Commission last evaluated the adequacy 
of its SNF transportation safeguards regulations in 1984. The 
petitioner believes that a general strengthening of the regulations 
intended to safeguard SNF shipments is necessary because of what they 
identify as new developments in two critical areas:
    (1) Changes in the nature of the terrorist threat; and
    (2) Increased vulnerability of shipping casks to terrorist attacks 
involving high-energy explosive devices.
    It is the petitioner's position that since 1984, three major 
changes have occurred in the nature of the terrorist threat that argue 
for a strengthening of the safeguards regulations:
    (1) An increase in lethality of terrorist attacks in the United 
States;
    (2) An increase in serious terrorist attacks and threats against 
transportation systems; and
    (3) A renewal of concern about nuclear terrorism generally, and 
specifically terrorist actions involving potential radioactive 
contamination.
    The petitioner believes that the willingness of terrorists to kill 
or injure large numbers of Americans, demonstrated in the World Trade 
Center and Oklahoma City bombings, compels a focus on incidents that 
are clearly intended to cause, or could cause, radiological sabotage.
    The petitioner believes that developments in two related areas have 
increased the vulnerability of spent fuel shipping casks to terrorist 
attacks involving high-energy explosive devices since the NRC last 
evaluated the adequacy of its SNF transportation safeguards 
regulations. Their first premise is that the capabilities and 
availability of explosive devices, especially antitank weapons, have 
increased significantly. Their second is that new spent fuel shipping 
cask designs, developed to increase payloads without exceeding 
specified weight limits, appear to be more vulnerable to attacks 
involving past, current, and future weapons systems and commercial 
explosives. The petitioner believes that these developments argue for a 
strengthening of the safeguards regulations.
    The petitioner believes that portable tank weapons have become more 
powerful, more reliable, and more available worldwide since the early 
1980s. The petitioner believes that most, if not all, of the antitank 
missiles identified in Attachment A of the petition (Table 5), have 
warheads capable of completely perforating a truck cask and its spent 
fuel cargo, and most are capable of deeply penetrating or completing 
perforating a rail cask and damaging the spent fuel inside. The 
petitioner states that these weapons are designed to hit moving targets 
at a distance of 30 meters or more, eliminating the need to capture the 
cask, and facilitating selection of optimal attack times and locations. 
The petitioner believes that the portability of these weapons allows 
further flexibility in attack planning, including use of multiple 
warheads, and in escape planning.
    The petitioner believes that the SNF shipping casks are vulnerable 
to attacks using military and commercial explosives, particularly 
conical shaped charges. The petitioner states that DOE-sponsored tests 
in the early 1980s demonstrated that an attack on a truck using a large 
military shaped charge could result in release of one percent of the 
SNF cargo, and that well-trained terrorists planning to capture, 
control and directly attack spent fuel shipping casks are likely to use 
shaped charges as their weapon of choice. The petitioner believes that 
the technology of shape charges and detonation systems, especially for 
applications in the construction and petroleum industries, and for 
specialized purposes such as military demining, have continued to 
evolve since the early 1980s. Numerous ``off the shelf'' military and 
commercial shape charges weighing around one kilogram are capable of 
penetrating 10 to 20 inches of steel.
    The petitioner believes that new spent fuel shipping cask designs, 
developed to increase payloads without exceeding specified weight 
limits, appear vulnerable to attacks involving current and future 
military weapons systems and commercial explosives. The petitioner 
believes the casks used for shipments to a repository and/or interim 
storage facility shipments will have different design configurations, 
and will use different structural and shielding materials, compared to 
casks currently in use, and compared to the older casks that were 
assumed in the DOE and NRC sabotage consequence assessments in the 
early 1980s. The petitioner states that some of these differences may 
make them more vulnerable to attack with armor-piercing weapons or 
high-energy explosives.

The Petition

    The petitioner requests that the NRC reexamine the issue of 
terrorism and sabotage against spent nuclear fuel and high-level 
radioactive waste shipments to determine the adequacy of the current 
physical protection regulations and to assist the DOE and the affected 
stakeholders in the preparation of a legally sufficient environmental 
impact statement as part of the NRC licensing process for a geologic 
repository or an interim storage facility.
    The petitioner requests that the NRC conduct a comprehensive 
assessment of consequences of three types of attacks that have the 
potential for radiological sabotage--
    (1) Attacks against transportation infrastructure used by nuclear 
waste shipments,
    (2) Attacks involving capture of a nuclear waste shipment and use 
of high-energy explosives against the cask; and
    (3) Direct attacks upon a nuclear shipping cask using antitank 
missiles or other military weapons.
    The petitioner states that the consequence assessment for 
repository shipments should address the full range of impact of a 
terrorism/sabotage event resulting in a release of radioactive 
materials: immediate and long-term implications for public health; 
environmental impacts, broadly defined; standard socio-economic 
impacts, including cleanup and disposal costs and opportunity costs to 
affected individuals and businesses; and so-called special socio-
economic impacts, including individual and collective psychological 
trauma, and economic losses resulting from public perceptions of risk 
and stigma effects.
    The petitioner requests that the Commission reexamine the design 
basis threat used to design safeguards systems to protect shipments of 
SNF against acts of radiological sabotage. The current regulations 
under 10 CFR 73.1(a)(1)(i), require licensees to design safeguards 
systems to protect shipments against attacks involving several well-
trained and dedicated individuals, hand-held automatic weapons, a four-
wheel drive land vehicle, and hand-carried equipment, including 
incapacitating agents and explosives. The regulations

[[Page 49412]]

should also specify that the attackers may receive insider (employee) 
assistance and use a four-wheel drive land vehicle bomb.
    The petitioner requests that the Commission clarify the meaning of 
``hand-carried equipment'' within the current design basis threat. The 
petitioner requests that the NRC amend the design basis threat to 
include use of explosive devices and other weapons larger than those 
commonly considered to be hand-carried or hand-held, and the use of 
vehicles other than four-wheel drive civilian land vehicles. The 
petitioner states that well-trained and dedicated adversaries could 
conceivably obtain and use military attack vehicles or military 
aircraft armed with bombs, missiles, or other powerful weapons. The 
petitioner believes that the possibility of attacks involving stolen or 
otherwise diverted military weapons system should be given special 
consideration considering the number and nature of military 
installations in Nevada and along the transportation corridors to 
Nevada.
    The petitioner requests that the NRC reexamine the definition of 
``radiological sabotage'' in 10 CFR 73.2. Currently, NRC regulations 
define ``radiological sabotage'' as ``* * * any deliberate act directed 
against a plant or transport in which an activity licensed pursuant to 
the regulations in * * * (10 CFR part 73) is conducted, or against a 
component of such a plant or transport which could directly or 
indirectly endanger the public health and safety by exposure to 
radiation.''
    The petitioner believes that the wording ``could directly or 
indirectly endanger'' implies a judgment by the NRC regarding the 
consequences of the action, as opposed to the intentions of the 
individuals carrying out the action. The petitioner states that actions 
against SNF shipments that are intended to cause a loss of shielding or 
a release of radioactive materials should be included in the definition 
of ``radiological sabotage,'' regardless of the success or failure of 
the action. The petitioner states that the definition should include 
deliberate actions that cause, or are intended to cause, economic 
damage or social disruption regardless of the extent to which public 
health and safety are actually endangered by exposure to radiation. The 
petitioner believes that an incident involving an intentional release 
of radioactive materials, especially in a heavily populated area, could 
cause widespread social disruption and substantial economic losses even 
if there were no immediate human casualties and few projected latent 
cancer fatalities. The petitioner believes that local fears and 
anxieties would be amplified by national and international media 
coverage. The petitioner believes that adverse economic impacts would 
include the cost of emergency response, evacuation, decontamination and 
disposal; opportunity costs to affected individuals, property-owners, 
and businesses; and economic losses resulting from public perceptions 
of risk and stigma effects.
    The petitioner requests that the NRC reexamine its regulations 
requiring advance route approval requirements, in light of the expected 
increase in SNF shipments once a Federal repository or interim storage 
facility begins operations. The petitioner states that neither the 
current physical protection regulations, nor the U.S. Department of 
Transportation's routing regulations, require shippers and carriers to 
minimize shipments through highly populated areas. The petitioner 
states that since 1979, the NRC has approved many highway routes 
through heavily populated areas, including I-15 through Las Vegas, NV, 
and I-80 through Reno-Sparks, NV. The petitioner states that a 
transportation risk assessment recently published by the NRC assumes 
that tens of thousands of truck shipments to a repository at Yucca 
Mountain, NV, could travel through Las Vegas, NV, and other heavily 
populated areas of Clark County, Nevada.
    The current regulations requiring advance route approval require 
licensees to provide for advance approval by the NRC of the routes used 
for road and rail shipments of spent fuel, and of any U.S. ports where 
vessels carrying spent fuel shipments are scheduled to stop [10 CFR 
73.37(b)(7)].
    The petitioner believes that the NRC should specifically require 
shippers and carriers to identify primary and alternate routes that 
minimize highway and rail shipments through heavily populated areas. 
The petitioner states that the NRC should adopt the route selection 
criteria in NUREG-0561 <SUP>2</SUP> as part of the regulations, and 
specifically require shippers and carriers to minimize use of routes 
that fail to comply with the route selection criteria.
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    \2\ Copies of NUREGS may be purchased from the Reproduction and 
Distribution Section, Office of the Chief Information Officer, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. Copies are 
also available from the National Technical Information Service, 5285 
Port Royal Road, Springfield, VA 22161. A copy is also available for 
inspection and/or copying at the NRC Public Document Room, 2120 L 
Street, NW. (Lower Level), Washington, DC.
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    The petitioner requests that the NRC reexamine its regulations 
requiring armed escorts for SNF shipments by road. These current 
regulations state, in part:


Sec. 73.37  Requirements for physical protection of irradiated reactor 
fuel in transit.

    (c) * * *
    (1) A transport vehicle within a heavily populated area is:
    (i) Occupied by at least two individuals, one of whom serves as 
escort, and escorted by an armed member of the local law enforcement 
agency in a mobile unit of such agency: or
    (ii) Led by a separate vehicle occupied by at least one armed 
escort, and trailed by a third vehicle occupied by at least one 
armed escort.
    (2) A transport vehicle not within any heavily populated area 
is:
    (i) Occupied by at least one driver and one other individual who 
serves as escort; or
    (ii) Occupied by a driver and escorted by a separate vehicle 
occupied by at least two escorts; or
    (iii) Escorted as set forth in paragraph (c)(1) of this section.
* * * * *
    The petitioner requests that the NRC amend its regulations to 
eliminate the differential armed escort requirements based on 
population. The petitioner contends that the current requirements for 
shipments within a heavily populated area should be uniformly applied 
to all road shipments. The petitioner believes that residents of small 
cities, towns, and rural areas along shipment routes are entitled to 
the same level of protection as residents of heavily populated areas. 
The petitioner states that there are many Nevada locations outside of 
designated, heavily populated areas with significant population 
concentrations within one-half mile of a potential SNF shipment route. 
The petitioner asserts that many difficult-to-evacuate facilities, such 
as schools, hospitals, industrial plants, shopping centers, hotels, and 
resorts, are located immediately adjacent to potential truck shipment 
routes in small cities and towns; several major water supplies and 
outdoor recreation facilities with high, seasonal population densities 
are located in close proximity to potential truck shipments routes in 
rural Nevada.
    The petitioner also requests the NRC to increase the armed escort 
requirements for truck shipments. The petitioner believes that new, 
high-capacity, legal-weight truck SNF shipping cask designs may be 
particularly vulnerable to attacks involving high-energy explosive 
devices. At a minimum, the NRC should consider requiring at least one 
armed escort each in a lead vehicle and a chase vehicle, with one 
escort being a state or local law enforcement officer.

[[Page 49413]]

    The petitioner requests that the NRC eliminate the differential 
armed escort requirements for rail shipments based on population. The 
current regulations state, in part:


Sec. 73.37  Requirements for physical protection of irradiated reactor 
fuel in transit.

    (d) * * *
    (1) A shipment car within a heavily populated area is 
accompanied by two armed escorts (who may be members of a local law 
enforcement agency), at least one of whom is stationed at a location 
on the train that will permit observation of the shipment car while 
in motion.
    (2) A shipment car not within any heavily populated area is 
accompanied by at least one escort stationed at a location on the 
train that will permit observation of the shipment car while in 
motion.
* * * * *
    The petitioner states that in Nevada and other western states, many 
small cities and towns grew up around rail lines and rail service 
facilities. In these communities, there are significant population 
concentrations within one-half mile of a potential SNF rail shipment 
route. In Nevada and other western states, mainline railroads are 
frequently located in river valleys near major water supplies. The 
petitioner also states that mainline railroads of national economic 
significance may, in-and-of themselves, be as attractive as targets for 
terrorists as heavily populated areas. The Union Pacific Salt Lake 
City-Los Angeles mainline through southern Nevada, potentially the 
primary shipment route to Yucca Mountain, is a rail route of national 
economic significance.
    The petitioner requests that the NRC, as part of re-examining its 
physical protection requirements, consider increasing substantially the 
armed escort requirements for rail shipments. The petitioner believes 
that new high-capacity (125 ton) rail shipping cask designs may be 
particularly vulnerable to attacks involving antitank missiles, and 
that armed escorts aboard the train could be incapacitated at the 
beginning of an attack, or as a result of a train derailment. The 
petitioner requests that the NRC consider requiring at least two armed 
escorts in an escort vehicle, in addition to the two armed escorts 
aboard the train.
    Based on recent experience during the foreign research reactor SNF 
shipments through Nevada, the petitioner believes the NRC should also 
consider requiring continuous, real-time aircraft surveillance along 
certain rail route segments through rough terrain and through heavily 
populated areas. The NRC should evaluate the advantages and 
disadvantages of requiring a level of protection comparable to that 
provided for rail shipments of strategic special nuclear materials 
(SNM); seven armed escorts stationed in a variety of configurations 
aboard the train or in one or more escort vehicles.
    The petitioner requests that the NRC adopt additional planning and 
scheduling requirements for the physical protection of SNF shipments 
based on the precautions already applied to shipments of SNM. The 
current regulations for shipments of SNM state, in part:


Sec. 73.26  Transportation physical protection systems, subsystems, 
components, and procedures.

    (b) * * *
    (1) Shipments shall be scheduled to avoid regular patterns and 
preplanned to avoid areas of natural disaster or civil disorders, 
such as strikes or riots. Such shipments shall be planned in order 
to avoid storage times in excess of 24 hours and to assure that 
deliveries occur at a time when the receiver at the final delivery 
point is present to accept the shipment.
* * * * *
    The petitioner requests that the NRC amend the general requirements 
for physical protection of irradiated reactor fuel in transit by 
adopting the same planning and scheduling requirements for special 
nuclear material in transit.
    The petitioner requests that the NRC require all rail shipments of 
SNF to be made in dedicated trains. Considering the potentially large 
number of cross-country rail shipments to a repository and/or storage 
facility, more than 12,000 rail cask shipments of SNF and more than 
1,000 rail cask shipments of HLW, the petitioner believes that the 
performance objectives set forth in Sec. 73.37(a)(1) can only be met by 
requiring all rail shipments to be made in dedicated trains. The 
petitioner also requests that the NRC consider the physical protection 
implications of shipping SNF in dedicated trains compared to general 
rail freight service. While continuing to believe that the use of 
dedicated trains should be mandatory, the petitioner acknowledges 
arguments that dedicated trains pose certain disadvantages from a 
physical protection standpoint. The petitioner states that dedicated 
trains may facilitate target tracking and attack scheduling by 
potential adversaries, and multiple casks in a short train may 
facilitate target selection and weapon delivery. According to the 
petitioner, the NRC's consequence assessment should evaluate the 
advantages and disadvantages of shipping SNF in dedicated trains, 
assuming both current and enhanced requirements or rail shipment armed 
escorts.

The Petitioner's Conclusions

    The petitioner submits that the foregoing regulatory amendments and 
the need for a comprehensive assessment are necessitated by changes in 
the nature of the terrorist threat and increased vulnerability of 
shipping casks to terrorist attacks involving high-energy explosive 
devices, as set forth in the petition. In the interest of safeguarding 
the public health, safety, and welfare, the petitioner urges the 
Commission to undertake the tasks outlined in the petition.

    For the Nuclear Regulatory Commission.

    Dated at Rockville, Maryland, this 7th day of September, 1999.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-23691 Filed 9-10-99; 8:45 am]
BILLING CODE 7590-01-P