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Proposed Rule

Dan Kane; Receipt of Petition for Rulemaking

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Nuclear Regulatory Commission.


Petition for rulemaking; notice of receipt.


The Nuclear Regulatory Commission (NRC) has received and requests public comment on a petition for rulemaking dated February 2, 2010, filed by Dan Kane (petitioner). The petition was docketed by the NRC and has been assigned Docket No. PRM-51-13. The petitioner is requesting that the NRC amend the regulations that govern environmental protection for domestic licensing and related regulatory functions. Specifically, the petitioner requests that the provisions that govern temporary storage of spent fuel after cessation of reactor operation be revoked, that licensing of new nuclear power plants cease, and that existing operating nuclear power plants be phased out. The petitioner believes these suggestions are necessary until the NRC can be assured of the technical and economic certainties of a waste disposition decision and associated political certainties in light of the current administration's proposed defunding of the Yucca Mountain Repository for permanent disposal and storage of spent nuclear fuel.


Submit comments by June 15, 2010. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.


You may submit comments on this petition by any one of the following methods. Please include PRM-51-13 in the subject line of your comments. Comments on petitions submitted in writing or in electronic form will be made available for public inspection. Personal information, such as your name, address, telephone number, e-mail address, etc., will not be removed from your submission.

The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

Federal eRulemaking Portal: Go to and search for documents filed under Docket ID [NRC-2010-0088]. Address questions about NRC dockets to Carol Gallagher, 301-492-3668; e-mail

Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

E-mail comments to: If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301-415-1677.

Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays, telephone number 301-415-1677.

Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

Publicly available documents related to this petition may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the Federal eRulemaking Portal

Publicly available documents created or received at the NRC, are available electronically at the NRC's Electronic Reading Room at​reading-rm/​adams.html. From this page, the public can gain entry into the NRC's Agencywide Documents Access and Management System (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 1-800-397-4209, 301-415-4737 or by e-mail to

For a copy of the petition, write to Michael T. Lesar, Chief, Rulemaking and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The petition is also available electronically in ADAMS at ML100570095.

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Michael T. Lesar, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-492-3663 or Toll-Free: 1-800-368-5642 or E-mail: Michael.Lesar@NRC.Gov.

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The NRC has received a petition for rulemaking dated February 2, 2010, submitted by Mr. Dan Kane (petitioner). The petitioner is a registered professional engineer who states that he has designed safety systems for commercial nuclear power plants and prepared some sections of the license application for Yucca Mountain. The petitioner requests that the NRC amend 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.” Specifically, the petitioner requests that the regulations at § 51.23, “Temporary storage of spent fuel after cessation of reactor operation—generic determination of no significant environmental impact” be revoked. The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition was docketed by the NRC as PRM-51-13 on February 25, 2010. The NRC is soliciting public comment on the petition for rulemaking.

Discussion of the Petition

The petitioner notes that on September 15, 2008 (73 FR 53284), the NRC accepted an application for construction of a mined geologic repository for spent nuclear fuel (Yucca Mountain) from the U.S. Department of Energy (DOE) for docketing and began a Start Printed Page 16361technical review of the application. The petitioner also notes that on February 1, 2010, the current administration proposed that the funding for the Yucca Mountain repository be discontinued for what the petitioner believes are political reasons. The petitioner states that the proposed update of the NRC's Waste Confidence Decision and proposed rule that the NRC published on October 9, 2008 (73 FR 59547), specifically Finding 2 (73 FR 59561), indicates that the NRC found reasonable assurance that a mined geologic repository for permanent disposal of spent nuclear fuel would be available within 50-60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of any reactor.

The petitioner also states that the DOE Director of the Office of Civilian Radioactive Waste Management expressed concern about adequate funding of the Yucca Mountain repository when DOE informed Congress that Yucca Mountain could be ready to accept spent nuclear fuel in 2020. The petitioner notes that the NRC denied a 2005 petition for rulemaking (PRM-51-8) by declining to define “availability” of a repository based on a presumption that an acceptable disposal site for spent nuclear fuel would become available “at some undefined time in the future.” (73 FR 59561.) The petitioner cites, Natural Resources Defense Council (NRDC) v. NRC, 574 F.2d 633 (DC Cir. 1976), as determining that the NRC's waste confidence decision must demonstrate compliance with the National Environmental Policy Act of 1969, as amended (NEPA), by assuring that “safe and adequate storage methods [for spent nuclear fuel] are technologically and economically feasible.” However, the petitioner states that the NRDC decision did not anticipate the “current political reality.”

The petitioner has concluded that the current administration's proposed decision to no longer fund Yucca Mountain now places the possibility of construction and licensing of a permanent repository for spent nuclear fuel from U.S. nuclear power facilities and licensees in jeopardy. The petitioner requests that the NRC cease licensing new nuclear power plants and begin to orderly phase out existing operating nuclear power plants. The petitioner also requests that § 51.23, “Temporary storage of spent fuel after cessation of reactor operation—generic determination of no significant environmental impact,” be revoked. The petitioner has concluded that the NRC cannot rely on existing regulations to make a determination on issuance of a construction authorization or license for a mined geologic repository at a location that has not been identified at an undetermined future time. The petitioner has also concluded that the NRC needs to strengthen the current regulations by adding additional requirements that address the political considerations of siting a mined geologic repository.

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Dated at Rockville, Maryland, March 25, 2010.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

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[FR Doc. 2010-7405 Filed 3-31-10; 8:45 am]