The Commission recently issued SRM-SECY-19-0100, in which it disapproved, by a 2-to-1 vote, a request made by the NRC staff that sought approval to discontinue the Independent Spent Fuel Storage Installation (ISFSI) Security Requirements rulemaking and deny a related petition for rulemaking filed by C-10 Research and Education Foundation Inc.
Instead, the Commission requested that the NRC staff circle back and provide a fresh analysis with a full range of options for the rule's scope before it decides whether and how to proceed with a rulemaking.
Background
After the events of September 11, 2001, the NRC issued security orders to ISFSI licensees. In 2007, the Commission approved the initiation of a follow-on rulemaking to "establish a risk-informed and performance-based approach to ISFSI security using scenarios and dose calculations that considered site-specific information." The rulemaking also addressed an element of a 2008 petition for rulemaking filed by C-10 Research and Education Foundation.
In 2018, considering the Fiscal Year 2020 budget, the Commission (in SRM-COMKLS-18-0003, which is not publicly available) directed the NRC staff to proceed with the rulemaking, but with a more limited scope of simply codifying the requirements of the post-9/11 security orders into NRC regulations. In response, the NRC staff performed a preliminary cost-benefit analysis and sought public input on the revised rulemaking scope.
As a result of these efforts, the NRC staff determined that continuing with the rulemaking would not further improve public health and safety or the common defense and security, and would not be cost-justified as licensees have already implemented the post-9/11 security orders. Therefore, in SECY-19-0100, the NRC staff recommended that the Commission approve discontinuation of the rulemaking and deny the remaining issue associated with C-10’s petition.
Discussion
Commissioner David Wright voted to approve the NRC staff’s recommendation, but the other two Commissioners disagreed. In their vote sheets, Chairman Christopher Hanson and Commissioner Jeff Baran noted their agreement in principle with the NRC staff's recommendation—that simply codifying the same security measures mandated by the post-9/11 security orders would not be cost-justified.
Notably, however, the majority criticized the Commission’s previous instruction to the NRC staff to narrow the scope of the rulemaking. More directly, Commissioner Baran observed the Commission traditionally does not use budget votes to "re-litigate established policy decisions" and emphasized the need to follow "the normal process of voting on policy papers."
Accordingly, the SRM directs the staff to prepare a new policy paper presenting a range of options. The Commissioners’ votes and underlying reasoning are essentially identical to their previous 2-to-1 rejection (see SRM-SECY-19-0095 and associated voting record) of the staff’s recommendation (SECY-19-0095) to discontinue a different rulemaking regarding enhanced security of special nuclear material—namely, because the Commission limited the scope of the rulemaking via the budget process (indeed, in the same document SRM-COMKLS-18-0003), whereas the current Commission majority wishes to review a full range of policy options.
Takeaways
Although not entirely clear, the vote sheets hint that Chairman Hanson and Commissioner Baran may prefer a rule that goes beyond the requirements initially put in place via the post-9/11 security orders.
As Morgan Lewis continues to counsel NRC-regulated entities that handle and house spent nuclear fuel, we will closely follow developments in this area.