ML20211C254
| ML20211C254 | |
| Person / Time | |
|---|---|
| Issue date: | 10/10/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20211C250 | List: |
| References | |
| RULE-PRM-71-10 NUDOCS 8610210308 | |
| Download: ML20211C254 (36) | |
Text
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[7590-01]
PbL NUCLEAR REGULATORY COMMISSION 10 CFR Part 71
[ Docket No. PRM-71-10]
The State of Wisconsin; Denial of Petition for Rulemaking AGENCY:
Nuclear Regulatory Commission.
ACTION:
Denial of petition for rulemaking.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-71-10) filed by the State of Wisconsin.
The petitioner requests that the NRC expand the scope of its regulations pertaining to spent nuclear fuel transport "to ensure that both the need for and the safety and environmental consequences of proposed shipments have been con-sidered in a public forum prior to approval of the shipment and route."
It is the NRC's conclusion that the new procedure requested in the petition is not justified by the arguments presented in the petition when considered together with the views and arguments of other persons who commented on the petition and in light of experience, testing, analysis, and other in-formation.
The Commission concludes that its existing regulation of the transportation of spent nuclear fuel, when viewed in the context of the combined programs of the NRC, the Departments of Transportation (00T) and Energy (DOE), the Federal Emergency Management Agency (FEMA), and the States is sufficient to provide adequate assurance against unreasonable risk to the health and safety of the public. The Commission also concludes ph08661010 i
R 71-20 1
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that the procedures suggested in the petition would not significantly serve to improve the protection of the public against unreasonable risk from the transportation of radioactive materials.
ADDRESSES:
Copies of correspondence and documents cited in this document are available for public inspection and copying for a fee at the NRC's Public Document Room at 1717 H Street NW., Washington, DC.
Copies of NUREG-0170 may be purchased by calling (202) 275-2060 or by writing to the Superintendent of Documents, U.S. Government Printing Office, Post Office
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Box 37082, Washington, DC 20013-7082.
FOR FURTHER INFORMATION CONTACT:
Donald R. Hopkins, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20505, telephone (301)443-7690.
SUPPLEMENTARY INFORMATION:
I.
Background
II.
Issues Raised III. Public Comments IV.
Consideration of Petition Issues e
V.
Consideration of Comment Issues VI.
NRC Conclusion t
I.
BACKGROUND By letter dated December 13, 1984, Mr. Carl A. Sinderbrand, on behalf l
of the State of Wisconsin, filed with the NRC a petition for rulemaking 1
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which requested that the NRC amend its regulations to initiate a new procedure to specifically approve individual spent nuclear ~ fuel shipments and to afford a mechanism for public input for each approval decision.
The NRC published a notice of receipt of the petition on February 4, 1985 (50 FR 4866), including the full text of the petitioner's proposed amend-ment, and invited public comments.
NRC has never had a procedure for approving individual shipments of spent nuclear fuel.
Under its regulatory program, the Atomic Energy Commission (AEC) issued specific licenses authorizing types of shipments, including a specified shipping cask, until 1973.
Repetitive specific licenses were issued when more than one licensee used the same shipping cask.
In 1973 the AEC agreed to take the lead in reviewing and approving packages for all commercial radioactive material shipments except those limited to designated small quantities, while DOT exercised its authority in other areas. At that time, the procedure of issuing repetitive specific licenses was dropped and was replaced by the current system of approving designs of and quality assurance programs for packages which any licensee may use by registering as a user.
This system was combined with a general license authorizing any Commission licensee to make shipments in an NRC-approved package provided the person is registered to use the package, i
has an NRC approved quality assuratice program, and has certain specified documentation.
The use of the general license eliminated a large paper-work burden on AEC and licensees alike, and has been proved by experience over the years to provide adequate control.
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s II.
ISSUES RAISED The petitioner proposes a rule which would (1) prohibit unapproved spent nuclear fuel shipments; (2) require an application for approval which demonstrates (i) that the applicant will satisfy safety, safeguards, and routing requirements,-(ii) that the shipment is necessary, (iii) that there are no unique risks along the proposed route, (iv) that alternatives to the shipment and route have been evaluated, and (v) that the proposed shipping cask will withstand all reasonably foreseeable incidents along the proposed route; (3) provide an opportunity for public participation in the approval decision; and (4) provide for adequate protection of the public health and safety.
The petitioner cites the existence of the following five conditions in support of its claim that NRC needs to establish a regulatory process for the evaluation and approval of individual shipments of spent nuclear fuel proposed by licensees:
1.
No Federal agency considers the safety or environmental risks associated with selected routes; 2.
No Federal agency requires adequate safeguards to protect the public in the event of an accident or other emergency; 3.
The NRC does not regulate the carrier of spent nuclear fuel or consider its safety record; e
4.
No Federal agency considers the need for or propriety of indivi-dual shipments of spent nuclear fuel; and 5.
The public has no opportunity for meaningful participation with respect to the decision to transport spent nuclear fuel.
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III.
PUBLIC COMMENTS In response to the invitation for public comments on the petition for rulemaking, 44 comment letters were submitted to the NRC by State and local governments, individuals, public interest groups, and power and other industrial companies.
Of the 21 comment letters from State and
^ "al governments, 18 supported the need for the new regulatory process or some variation of it.
Those who expressed reservations cited undue hardship associated with the proposal, security problems, and undue delays associated with the proposed hearings.
One Indian tribe noted the lack of any specific provision for involvement by Tribal governments.
Six of
'the seven individual commenters supported the rule for the reasons stated in the petition.
The one who expressed reservations cited the lack of justifi. cation for the proposal.
All six public interest groups supported the proposal for the reasons outlined in the petition.
The 10 power com-panies and other industrial organizations that commented opposed the peti-tion citing lack of justification, duplication, undue burden, and lack of legal foundation.
In' summation, 30 commenters supported the petition pri-marily for the reasons given in the petition, and 14 commenters opposed the petition for lack of justification,. duplication, security problems, undue burdens and delays, and lack of a legal foundatico for the peti-tioner's proposal.
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IV.
CONSIDERATION OF PETITION ISSUES The petitioner cites a. number of contentions in support of its request that the NRC adopt the proposals in the petition.
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1.
Failure to consider safety or environmental risks of specific routes In its first contention, the petitioner, in speaking of spent nuclear fuel shipments over the last 18 months, states that "no federal agency has considered...the safety or environmental risks associated with the selected routes...."
Petition at 4.
Later, the petitioner argues that "the NRC does not independently consider the safety of the particular route, does not evaluate the potential safety and environmental risks of the shipment...."
_I_d at 6.
Finally, in describing what it considers to be "a significant gap in the regulatory program," the petitioner states that "no agency considers risks associated with specific routes." Id.
The petition would require that an applicant for spent nuclear fuel shipment approval evaluate alternatives to the proposed route and demon-strate that the proposed shipment, including its route, is the alternative which provides the least risk of radiological exposure to the public.
The D0T has specific regulations for the routing of spent nuclear fuel by road which require, with certain exceptions, that the carrier operate over preferred routes which include interstate highways and State-designated alternate routes.
The routes are selected after consideration 4
is given to minimization of radiological risk.
The routing rule was upheld by the Second Circuit Court of Appeals in City of New York v. Department of Transportation, 715 F.2d 732 (2nd Cir. 1983), cert. denied, 104 S. Ct. 1403 i
I (1984).
In upholding the DOT regul'ation, the Court stated that the Haz-ardous Materials Transportation Act (HMTA) does not require'that.the safest means be used in transporting spent fuel or any other hazardous material, but only requires the DOT to promulgate rules that provide for adequate safety.
M. at 740. Thus, no Federal agency, under the HMTA, could require a licensee to show that the proposed shipment is the alternative l
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which provides.the least risk as long as the shipment provides for ade.
quate safety as prescribed under the DOT routing rules.
The routing rule is based on the D0T's finding that the interstate highway system generally minimizes the risk of transporting spent nuclear fuel, and that State. agencies can designate alternate routes in accordance with DOT guidelines for minimizing risk.
The DOT has made a generic evalu-ation of highway routes and concludes that the interstate highway system should serve as the basic Federal. framework for providing safe and efficient routes for transporting spent nuclear fuel by road.
In addition to this generic evaluation by DOT of interstate and alternate routes avail-able for spent nuclear fuel transportation, the NRC specifically evaluates and approves routes selected by. licensees for safeguards purposes.
These route approvals are not limited to individual shipments of spent nuclear fuel,-but may be used for repetitive ship:nents.
For rail transportation, the 00T physically inspects rail track for safety when a rail route is used for transportation of spent nuclear fuel.
The inspections are made before the start of a series of shipments over the same route and at six-month intervals during those shipments.
Although there is no formal routing rule for rail shipments of spent nuclear fuel, the Federal Railroad Administration (FRA) works informally with the utility and carrier to investigate alternative routes by rail.
Many of the princi-ples of the highway routing rule afe incorporated into the process for rail route selection.
In addition to the informal application of routing standards for spent nuclear fuel shipments by rail, the FRA has regulations in 49 CFR Part 174 which impose rail safety requirements.
These rules require a separation of spent nuclear fuel by at least one car from the engine, from 7
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an occupied caboose, and from another placarded car in the train.
The rules impose a 48-hour limit on forwarding a spent nuclear fuel shipment af ter acceptance at an originating point or receipt at any yard or transfer station (weekends and holidays excluded).
The FRA rules require documen-tation aboard the train and reports of any accidents and incidents enroute.
The FRA rules also set standards for wheels and brakes, hours of service, track standards related to train speeds, employee training, and qualifica-tions of train crews.
The FRA's 325 inspectors are responsible for complete inspection of all rolling stock, including locomotives; for monitoring carrier's operat-o ing rules and training procedures; for monitoring the nation's rail tracks; for monitoring the railroads signal systems; and for inspecting hazardous cargoes.
For the initial move of all the spent nuclear fuel shipments from Nebraska and Minnesota to Morris, Illinois, since August 1984, FRA has inspected the entire track from origin to destination, and completely inspected the signal systems, the carriers' operating rules, the equipment to be used, the documentation and the cargo.
In addition to the FRA's complete inspection for the initial move, it is FRA policy to conduct a full equipment inspection and documentation check on each spent nuclear fuel shipment.
After the initial track and signal inspection, further inspections are conducted on a periodic basis.
In addition to the 00T control ~s exercised over spent nuclear fuel shipments, NRC conducts a safeguards evaluation of rail routes in much the same way as it does for highway routes.
In addition to the determinations of routing adequacy made by the 00T, the NRC concluded, after issuing its Final Environmental Statement on the Transportation of Radioactive Material.by Air and Other Modes 8
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(NUREG-0170) in December 1977, that its regulations were adequate to pro-tect the public against unreasonable risk from the transportation of spent nuclear fuel.
For 1985, the report projected that there would be 1,530 spent nuclear fuel shipments by truck and 652 by rail (Table 1.1).
These shipments were evaluated as presenting an accident risk of only.0004 la-tent cancer fatalities per year (Table 5.9).
Based on this evaluation, the risk associated with any individual shipment of spent nuclear fuel transported in accordance with NRC and DOT regulations is small.
In support of the petition's contention that shipping controls may not be adequate for some routes, a commenting State agency conducted a
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review of the technical literature on cask design, development, and perfor-mance and concluded that the safety of existing casks is sufficiently uncertain as to warrant more extensive testing which would address poten-tially hazardous conditions for each proposed route.
An individual com-menter noted that casks now in use have not been tested for strength when heated to the temperature at which they travel and then submerged into the cold waters of the Mississippi River.
The Commission notes the long-standing disagreement between it and some persons who question the adequacy of the NRC p.sckage standards for transportation of radioactive material and who doubt whether the packages can be adequately evaluated by engineering analysis rather than being physically tested under all conditions to ensure their accident resistance.
The NRC employs the package standards of the International Atomic Energy Agency which have been in use throughout most of the world for almost 20 years. While spent nuclear fuel casks have not been subjected to all possible combinations of accident conditions during that time, there has been enough accident and testing experience to confirm the high strength 9
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of casks in use today.
The difference between the normal operating tem-perature of a spent nuclear fuel cask and the temperature of a large river such as the Mississippi is not large enough to cause a structural or con-tainment problem.
Furthermore, the large mass of the cask would slow its cooling, thereby reducing any potential for damage.
2.
Protection of the Public in Emergencies The petitioner's second assertion is that no Federal agency requires
" adequate safeguards to protect against emergencies," and that "NRC...only
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gives. cursory attention to emergency planning." Petition at 5 and 6.
The Federal plan for providing adequate safeguards to protect against radiological emergencies is described in a Federal Register notice issued by the FEMA on September 12, 1984 (49 FR 35896).
The plan describes how 12 Federal agencies that have resources and capabilities to respond to a radiological emergency will work together and will work with State govern-ments and private organizations during an emergency response.
The plan, known as the Federal Radiological Emergency Response Plan (FRERP), describes how the Federal Government will respond to St.
quests for assistance during a major radiological emergency, how the Department of Energy (DOE) will maintain radiological monitoring and as-sessment support to the State and local governments, and how the other e
Federal agencies are prepared to augment the DOE support, if necessary.
The FRERP has been tested by the Federal agencies and proven viable.
NRC has issued a general statement of Policy on NRC Response to Accidents Oc-curring During the Transportation of Radioactive Material (49 FR 12335, March 29, 1984).
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The scope of the FRERP specifically includes Federal response to transportation accidents involving radioactive materials.
One of the FRERP planning assumptions is that State or local governments have primary responsibility for determining and implementing any measures to protect life, property, and the environment in any areas not within the boundaries of a fixed nuclear facility.
In a transportation accident, the State or local government has the responsibility for taking emergency. action, while appropriate Federal resources may be used to support State and local government response measures, if requested.
Federal agency response plans recognize the primacy of the response roles of state-and local governments, operators of the transporting vehicle, and owners of the spent fuel.
A utility commented that when an accident occurs the response to it is, of necessity, a local responsibility.
After reviewing the responsi-bility of the DOT to reduce the probability of transportation emergencies and the responsibility of the DOE to maintain response teams to assist local authorities in the event of a nuclear emergency, the utility referred to a DOT conclusion that " spent nuclear fuel poses a much lower risk of transportation accident than do any number of common chemicals, the' con-tainment of which could also be expected to exceed the capacity of local groups to respond (49 FR 46664)."
In commenting on the petition, a second utility agreed that it would appear appropriate for a State, in' conjunction with its emergency response capabilities, to examine possible transport routes within its borders and recommend to NRC that these preselected routes be used.
The Commission i
notes that this process is already in use for safeguards purposes and that a number of States have recommended routes within their boundaries.
(
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These State recommendations are considered by NRC in its route approval process for spent nuclear fuel shipments.
An individual from the State of Wisconsin, after reviewing the regu-latory system now in place, the small risk of radiation injuries from a spent nuclear fuel incident, and the numerous competent groups available to respond to a transportation accident involving radioactive material in Wisconsin, concluded that the Wisconsin proposal would result in adverse consumer economics without significantly improv1.ig public safety.
An item sometimes referred to as necessary for an effective emergency response is prenotification to State and_ local authorities that a spent fuel shipment is being made.
In response to a Congressional requirement, NRC reguMtions in 10 CFR 71.97 now require prior notification of licensee shipments of spent nuclear fuel to the Governor of each State through or into which the shipment will pass.
In commenting on the Wisconsin petition, a State agency noted that, particularly in the area of advance notification of shipment of spent nuclear fuel, the NRC's regulations must be strength-ened.
A second State expressed its concern with the lack of enforcement and inspection procedures needed to assure that proper prenotification is l
made by the shipper and that information submitted is accurate.
In addi-tion, a city urged the NRC to increase the length of the notice period I
for spent nuclear fuel advance notifications.
The Commission considers its advance notification rule to be' reasonable in terms of the length of notification period and considers its inspection cnd enforcement of this i
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rule to be sufficient to ensure its effectiveness.
However, this must be considered a separate issue not covered within the Wisconsin petition, because no proposal to amend the advance notification provisions is included in the petition.
Changes to those requirements may be proposed i
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under the " petition for rulemaking" provisions of 10 CFR 2.802 of the NRC regulations.
Another essential ingredient for adequate emergency response capa-bility is trained response personnel at both the State and local levels.
The FEMA, in its March 11, 1982 revision of 44 CFR Part 351, "Radiolog-ical Emergency Planning and Preparedness," sets out Federal agency roles-and assigns tasks regarding Federal assistance to State and local govern-ments in their radiological emergency planning and preparedness activities.
FEMA places upon itself the responsibility to develop and manage a radio-i logical emergency response training program to meet State and local needs,
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using technical expertise and resources of other involved agencies.
The NRC, the Environmental Protection Agency, and the Departments of Health and Human Services, Energy, Transportation, Agriculture, and Commerce all have responsibilities to assist FEMA, in their particular fields of exper-tise, in the development, implementation, and presentation of training programs for Federal, State, and local radiological emergency preparedness personnel.
The DOT has the particular responsibility in the area of trans-portation emergencies to provide guidance and materials for use in training emergency services and other response personnel for transportation acci-dents involving radioactive materials.
Emergency response training programs which have resulted from these 1
Federal responsibilities are as follows :
1 FEMA-REP-5, Guidance for Developing State and Local Radiological Emergency Response Plans and Preparedness for Transportation Accidents, March 1983,-
Federal Emergency Management Agency.
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a.
00E, through Dak Ridge Associated Universities (0RAU), offers
" Medical Planning and Care in Radiation Accidents," a one-week ccurse for physicians, training about 48 participants per year.
" Health Physics in Radiation Accidents," a one-week course for health physicists, training about 36 participants per year.
" Handling of Radiation Accidents by Emergency Personnel,"
a 2-1/2 day course for emergency room surgeons and nurses,
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training about 54 participants per year.
b.
00T offers --
" Radioactive Materials Transportation Information and Incident Guidance," a self-training manual.
Emergency Response to Hazardous Materials in Transportation (Self Study Guide), U.S. Department of Transportation, 1982.
This is a 00T-offered self-study course on full-l spectrum transportation regulations.
" Handling Radioactive Materials Transportation Emergencies,"
a training package for first-on-the-scene responders.
This is a 6 to 8 hour9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> tape and slide presentation.
Hazardous Materials:
1980 Emergency Response Guidebook, l
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U.S. Department of Transportation, 1980.
This document has relevance to full-spectrum hazardous material response. The 00T has distributed this document with the intent of providing a copy for operators of every emergency vehicle in the United States.
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c.
FEMA Radiological Emergency Preparedness (REP) program offers --
" Radiological Emergency Planning Seminar," a one-week semi-nar focusing on nuclear power plant offsite planning re-quirements.
" Radiological Accident Assessment Course," a one-week course to train radiological health personnel in offsite dose as-sessment and projection techniques.
" Radiological Emergency Response Course," a ten-day course to train State and Federal radiological emergency response team personnel in techniques of responding to a wide range of radiological accidents.
Approximately 400 persons are trained each year.
d.
NRC, through ORAU, offers --
A ten-week program for State health physicists, trainihg about 20 participants per year.
e.
Colorado Training Institute offers --
A three-day seminar and a two-week course ~on all phases of hazardous materials transportation incident responss, including radioactive materials.
Originally funded by a
't grant from 00T, but now an independent State-run program.
On a training related issue, the DOT highway routing regulation requires that drivers of vehicles c'arrying spent nuclear fuel receive emergency action training within the 2 years preceding that transportation.
The training must include the properties and hazards of the spent nuclear fuel and the procedures to be followed in the event of an accident or other emergency.
The DOT regulation also requires the driver to have a copy of the mandatory route plan including telephone numbers which will 15
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access emergency assistance in each State to be entered.
49 CFR SS 177.825(c)-(d).
The required training for escorts, applicable to all modes of transport, includes the following five subjects:.(1) security en route, (2) communications, (3) radiological considerations, (4) response to contingencies, and (5) response to threats.
3.
NRC Regulation of the Carrier The petitioner's third contention that "the NRC does not regulate the carrier or consider its safety record" fails to recognize that the 00T performs this function.
Petition at 6.
00T imposes regulations that relate to both the hazardous nature of the cargo and the safety aspects of'the transporting vehicle.
00T also inspects and enforces against its carrier rules.
Although NRC considers that it has the authority under the Atomic Energy Act to regulate carriers insofar as they transport material regu-lated by the NRC, it has agreed under a Memorandum of Understanding with 00T dated June 8,1979 (44 FR 38690) that it will leave the develcpment of carrier safety standards to 00T because of DOT's greater experience and expertise in that role.
On the issue of incomplete regulatory control, one State referred to a report issued in 1984 by the National Research Council entitled " Social and Economic Aspects of Radioactive # Waste Disposal-Considerations for Institutional Management." On the issue of transportation of spent nuclear fuel, the panel of experts "found that an underdeveloped regulatory frame-work currently exists for the transportation of spent fuel and high-level waste. The federal governmental agencies involved defer to each other, t
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with primary responsibility essentially delegated to NRC's reactor li-censees." The panel recommends "a careful evaluation of existing federal regulation of highway transport to assure that (a) a sufficiently broad and uniform regulatory regime exists for the safe transport of radioactive wastes, (b) any redundancies and incompleteness in the existing NRC-DOT regulations have been eliminated, and (c) the needs of States to control safety on their highways are met."
The State submits that the conclusions and recommendation of the report are warranted, and that adoption of the Wisconsin petition would help the problem.
The Commission strongly dis-
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agrees that its regulatory framework is underdeveloped.
The existing rules were developed over substantial periods of time with full opportunity for public comment.
The regulations have met the test of time producing an excellent safety record over many years.
In the absence of any demon-stration that the regulations are inadequate, and the National Research Council report has not been specific in that regard, the Commission is not inclined to act on the recommendations of the report.
A nuclear equipment manufacturer commented that the Wisconsin peti-tion is apparently based on the premise that the transport of spent nuclear fuel is not adequately regulated even though it is one of the most heavily regulated transportation activities.
The commenter argued that the basic
-regulatory system for transport of spent nuclear fuel has been demonstrated i
by experience nationally and internationally to be sufficiently encompas-sing to ensure protection of public health and safety.
The proposed pro-cedures for approval of spent nuclear fuel shipments would cause an enor-mous use of NRC and utility resources for little, if any, public gain.
The Commission agrees that the same package and transportation standards are applied internationally and have proved to be adequate.
However the 17
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systems (i.e., agencies or combination of agencies) that apply those uni-form standards differ from country to country.
The NRC is continually monitoring the relationship between its regulations and those of the other agencies with which it shares jurisdiction in the United States.
4.
Need for and Propriety of Individual Shipments In referring to spent nuclear fuel shipments over the last 18 months, the petitioner comments.that "no Federal agency has considered the need for the shipments.... or the propriety of exposing the public to
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these risks." Petition at 4.
In enlarging on this same concept, the petitioner argues that "the utilities' ratepayers may be exposed to substantial costs, the public in the vicinity of the route may be exposed to substantial safety hazards, and States and municipalities along the route may be exposed to substantial liability and costs for emergency response without any opportunity to question the propriety of the ship-ment." Petition at 7.
The petitioner requests that an applicant for approval of an individual spent nuclear fuel shipment be required to demonstrate that "the proposed shipment is necessary to meet the require-ments of the licensee's operating license or required minimum fuel storage capacity." Petition at 2.
A State agreed with Wisconsin's assertion that there are significant gaps in the regulatory program regarding shipment of spent nuclear fuel.
Specifically, There should be a Federal policy designed to minimize spent nuclear fuel shipments prior to the operation of a commercial nuclear waste repository; and 18
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There should be a Federal regulatory system for evaluating the need for spent nuclear fuel shipments prior to the operation of a repository.
A State senator supported that view by noting that spent nuclear fuel shipments which have been and are being made to the Morris Storage Facility will have to be removed from Morris and transported again when the U.S.
Government develops an interim storage facility or a disposal facility.
He believes this raises the serious question of the necessity of shipments to Morris.
An individual agreed by noting that shipments of spent nuclear fuel from Monticello, Minnesota to Morris, Illinois are being made only
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for economic gain since the storage pool at Monticello has about 4 more years of space left in it at current use rates.
A public interest group asserted that there should be consideration given to the need for the shipments and the safety and environmental risks associated with various routes, and related that consideration to its be-lief that the training of fire fighters, law departments, and hospitals is inadequate at this time.
A State summarized its view that it is irrefutable that spent nuclear i
fuel shipments pose some risk and that the unnecessary and uncoordinated random shipment of those materials must be avoided. The State concluded that even after a comprehensive and reasonably predictable strategy for spent nuclear fuel management has been developed and the impacts of ship-ments can be analyzed, a review of the need for such shipments must be conducted and used as the basis for granting or denying authorization for the shipments.
On the other hand, a utility noted that local governments have imposed regulations in the past requiring the transporter to demonstrate a need 19
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for each shipment.
The utility further noted that all such regulations have been struck down as being in violation of the Commerce Clause of the U.S. Constitution.
As support for this proposition, the utility cited Kassel v. Consolidated Freightways Corporation of Delaware, 450 U.S. 662 (1981).
A law firm representing multiple utilities commented that the Wisconsin petition proceeds from the two false assumptions that (1) spent nuclear fuel shipments are so dangerous or environmentally harmful that they should only be permitted in the event of dire need, and (2) NRC pos-sesses the legal authority to determine the "need" for proposed shipments.
The commenter cited the Nuclear Waste Policy Act of 1582 and its require-ment that the Department of Energy provide interim storage capacity (prior to the establishment of a permanent high-level waste repository) for ci-vilian nuclear power reactors that cannot reasonably provide adequate storage on site.
This capacity is to be made available only to a person who is " diligently pursuing licensed alternatives to the use of Federal storage capacity" including transshipment to another civilian nuclear power reactor owned by such person.
The commenter believes that Congress thus expressly acknowledged the possible need for electric utilities to transship spent nuclear fuel.
The commenter also cited Public Law 96-295, which requires that NRC provide for prenotification of spent nuclear fuel shipments to State Governors, as evidence that Congress specifically con-templated shipments of spent nuclear fuel prior to the operation of a repository.
The commenter then pointed ta the NRC and 00T regulations under which spent nuclear fuel shipments are authorized, regulations the adequacy of which has been reaffirmed on a number of occasions, and con-cluded that "any additional specific determinations by NRC as to the 'need' 20
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to transport would needlessly and unlawfully circumscribe the managerial discretion of the operators of licensed nuclear power plants."
Finally, a State agency noted that the issue of whether spent nuclear fuel should be transported is not an appropriate subject for resolution through the rulemaking process, but should be resolved only by Federal legislative action.
The NRC has analyzed the risks associated with the transportation of spent nuclear fuel, and found them to be small.
The Commission acknowl-edges enactment of several laws (e.g., The Atomic Energy Act of 1954, as amended, The Nuclear Waste Policy Act of 1982, and The Hazardous Materials
~-
Transportation Act) which make it abundantly clear that some spent nuclear fuel shipments are expected and accepted in the public interest, but this cannot be taken as a statement of national policy that all shipments of spent nuclear fuel have been authorized by Congress.
The NRC's recent rulemaking to establish 10 CFR Part 53, " Criteria and Procedures for Determining the Adequacy of Available Spent Nuclear Fuel Storage Capacity," published in the Federal Register on February 11, 1985 (50 FR 5548), raised the issue whether the Commission should give preference to onsite storage alternatives in determining the need for Federal interim storage for a licensee.
Consideration was given to indi-cations in the legislative history of the Nuclear Waste Policy Act of 1982 j
(NWPA) to the effect that onsite storage of spent nuclear fuel should be encouraged and that transportation of spent nuclear fuel should be mini-mized.
The Commission took the position in that rulemaking action, and affirms it here, that it has no authority under Subtitle 8 of the NWPA to establish priorities for the pursuit of spent nuclear fuel storage alter-natives.
If the Commission finds, pursuant to 10 CFR Part 53, that one 21
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or more alternatives to Federal interim storage is feasible, the utility is not eligible to participate in the Federal interim storage program.
The choice of which alternative to pursue will be decided elsewhere.
As to the petitioner's concern over substantial costs to the utili-ties' ratepayers from unnecessary shipments of spent nuclear fuel, the economic decisions made by utilities in transporting spent nuclear fuel are beyond the purview of the NRC's regulatory authority as long as the utility meets NRC regulatory r?quirements with respect to health, safety, common defense, and security.
See, Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 221-22 (1983).
In addition to the Commission having found that the risks of spent nuclear fuel transportation are low, it also explored the consequences of serious incidents which might cause the spent nuclear fuel casks to fail.
One recent series of tests included the destructive testing of spent nu-clear fuel in simulated fuel casks occurring from presumed acts of sabotage.
The preponderance of available evidence, including the recent testing to analyze the effect of explosives, showed that accidental releases from spent nuclear fuel casks would be neither severe nor far-reaching.* Based on this preponderance of evidence, the Commission finds no basis for fur-ther restrictions on the shipment of spent nuclear fuel or for an examina-tion of the need for individual shi'pments.
The Commission does have a study underway on this subject, however, to assess the accident resistance of spent nuclear fuel shipping casks
- NUREG-0170 " Final Environmental Statement on the Transportation of Radio-active Material by Air and Other Modes," December 1977.
" Final Report on Shipping Cask Sabotage Source Term Investigation,"
October 1982.
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when subjected to the stresses associated with historically-based real-world accidents.
The study will evaluate the ability of spent fuel trhns-portation containers designed to meet the performance criteria in current NRC regulation (10 CFR Part 71) to safely retain its radioactive contents, maintain its shielding, and prevent nuclear criticality when subjected to stresses associated with severe road or rail accidents.
It will also assess the probability and potential consequence of any accidents in which stresses. exceed values associated with current regulations.
The study is nearly complete and results are expected to be published in late 1986 fol-lowing an independent peer review.
This study, as well as other initia-
~
tives, is part of the continuing Commission process to assess and maintain its transportation regulations adequate in light of changing transporta-tion patterns and technologies.
With risks low and potential consequences even from an improbable, severe accident less than catastrophic, additional controls are only justi-fled if the cost of those controls does not exceed their benefits.
In the case of the additional controls sought by the petitioner, the technical benefits would be measured in terms of the value of normal and accidental exposures avoided. While the costs of the new approval procedure pro-posed in the petition have not been quantified, it is the Commission's judgment that, because of the small technical benefits available under 1
any foreseeable circumstances, a favorable cost / benefit balance could not be obtained.
5.
Opportunity for Meaningful Public Participation The petitioner's final contention in support of the proposal is that "the public has no opportunity for meaningful input into the decision to 23
[7590-01) transport waste, as this decision is wholly within the discretion of the licensee." Petition at 7.
The petitioner requests that the "NRC exercise its regulatory authority to ensure that both the need for and the safety and environmental consequences of proposed shipments have been considered in a public forum...." Id at 1.
A State commenter reported that two public discussions held in advance of spent nuclear fuel shipments from the State had some constructive results.
The utility. involved was able to demonstrate that it had reviewed alternate means of addressing its storage problems, and State agencies, the utility, and the carrier were spurred by public concern to take safety precautions beyond the minimum required by Federal regulations.
Based on this experi-ence, the State suggested three reasons for a positive response to the Wisconsin petition:
Open discussion of the issues may result in a greater range of choices, both formal and informal; Fears that public participation would somehow get out of hand and undermine rational, technically-sound decision making are a
probably not realistic.
Reasonable resolution leaves everyone better off; and If the NRC itself provides a public forum, resort te State and local government as a source of information and discussion is less likely.
Legally fut'ile attempts to ban spent nuclear fuel transportation by local ordinance can only generate local resent-ment and undermine Fedr.al authority.
Tne Commission, together with 00T, has also attempted to establish a dialogue with affected persons on the issue of spent nuclear fuel trans-portation.
At a DOT /NRC hosted seminar in Chicago on July 31-August 2, 1
24
[7590-01) 1985, those agencies met with representatives of 49 States, local govern-ments, and Indian Tribes-to discuss the problems and potential solutions associated with spent nuclear fuel transportation. A total of 275 people participated.
In addition, an NRC contractual study has included numerous inter-views with government officials and members of the public regarding their concerns over shipments of spent nuclear fuel from the West Valley, New York, former reprocessing plant now being decommissioned.
The focus of the study has been to obtain information documenting the concerns and actions of affected institutions in previous spent fuel shipment campaigns.
The contractual study is not yet complete.
Most of the public commenters who supported the Wisconsin petition also supported the formal hearing process which was part of the petition and on which the approval of the spent nuclear fuel shipment in question would in part be based.
For example, a State observed that members of the affected public have not been given an opportunity through the route-approval process to express their concerns about their own personal safety and the protection of the environment in which they live.
The Wisconsin petition gives the public an appropriate opportunity to provide input into the decisionmaking process.
A public interest group complained that "it has been impossible to provide input into the decisionmaking process for nuclear waste shipments," and beliefves that "if there is no public input the health and safety of the public will not be insured."
Some persons supporting and some persons opposing the petition registered comments against the formal hearings proposed.
A utility com-mented that the rule as proposed is silent on whether the requirements would be repeatedly imposed for a specific shipping route even though i
25
[7590-01]
approval was granted for a prior shipment, and could be construed so as to benefit individuals interested in making frivolous repeated requests for hearings for already established shipping routes.
A State commented that the basic reason for the rulemaking petition is to allow more public input to the decisions regarding transporution of spent nuclear fuel.
While the State encouraged public participation in all aspects of inter-4 state transportation, it believed the Wisconsin proposal would result in undue hardship on the shipper and carrier.
The State believed that NRC and D0T provisions for public input have been adequate for route selection, and in fact the State had designated certain routes as preferred routes for spent nuclear fuel shipments.
The State's recent accident experience has been good.
There was some division of sentiment among State and local officials on the times when public hearings'ould be most useful.
Although it was w
not clear from the petition whether a series of shipments could be approved as a result of a single hearing or whether an individual shipment would be subject to the entire approval process by itself, some commenters clearly preferred approval of a series of shipments.
For example, a com-menting State favored a generic, rather than specific, examination of spent fuel shipments to establish generic criteria for designating routes and alternate routes, for establishing the need to ship, and for calcu-lating risks, but favored avoiding t.he possibility of a hearing each time d
spent nuclear fuel is shipped.
A city endorsed Wisconsin's request for individual approval of spent nuclear fuel shipments, for public comments on each request, and for environmental impact statements if required under Federal law, rules and requirements, but would give the NRC discretion on whether to conduct a hearing when requested by a commenting person.
26 i
[7590-01]
Another State supported the Wisconsin contention that the current NRC transportation rules be thoroughly. reviewed by the Commission, including ample opportunity for State and public comment.
Procedurally, however, the State supported a thorough public review only orior to any major cam-paign.to ship radioactive wastes between two points, including an oppor-tunity for affected States to participate in routing decisions.
It sug-gested that an understanding should also be reached with all affected States of the roles of all parties in inspection of shipments, emergency response, prior notification, and liability.
A State supporting the Wisconsin petition suggested the following revisions to the Wisconsin proposal:
(1) Allow for an application and approval / denial for a series of shipments from one pcint-of origin to one destination; and (2) Clarify whether an Environmental Impact Statement or an Environ-mental analysis will be required.
Finally, some commenters seemed to express more of a need for an exchange of information than for a formal hearing where a shipment approval decision is involved.
A public interest group complained that the public does not have information as to the safety of the casks being used, the necessity of the shipments, the proper routes to take, or other life pro-tection issues.
The commenter did not believe that shipping spent nuclear fuel from one temporary location to another is a responsible policy, and urged that shipments be stopped until a more responsible policy can be put into effect.
One individual supported the petition for its provisions allowing public input, believing that any economic activity affecting the economic and physical health of the public should be subject to effective public input.
27
[7590-01]
The Commission believes it has been very open to public participation in the processes which established the present rules for transporting spent nuclear fuel.
This ir,cludes public rulemaking proceedings for establish-ment of packaging standards in 10 CFR Part 71 begun on December 21, 1965 (30 FR 15748); for the general-license, package-approval system in 10 CFR Part 71 begun on November 20, 1971 (36 FR 22134); for the establishment of standardized impacts associated with the transportation of radioactive material, including spent nuclear fuel, to and from nuclear power plants begun on November 1,1973 (38 FR 30203);. and the reevaluation of NRC trans-
~
portation regulations begun on June 2, 1975 (40 FR 23768).
In each of these cases, announcements were issued and public comments were solicited.
As with'the radioactive material transportation regulations promul-gated by NRC, those adopted by the DOT were also considered through public rulemaking proceedings.
The 00T routing rule is an example where there were multiple opportunities for public participation.
An Advance Notice of Proposed Rulemaking was issued on August 17, 1978 (43 FR 36492) soli-citing public comments.
A Notice of Proposed Rulemaking followed on January 31, 1980 (45 FR 7143) that was followed by seven public hearings held in Philadelphia, Atlanta, Chicago 'anser, Seattle, Boston, and New York, plus three additional public meetings in Akron, Ohio; Eugene, Oregon; and Union City, California.
00T received and reviewed over 1,000 public i
e comments and reviewed over 1,600 pages of transcripts from the public meetings.
This represents an extraordinary level of public participation.
V.
CONSIDERATION OF COMMENT ISSUES The public comments raised a number of issues not included in the
' Wisconsin petition, but which are related to the petition in various ways.
28
[7590-01]
1.
Disclosure of Safeguards Information A utility suggested that the requirement for an applicant to demon-strate that he or she has fulfilled the 10 CFR 73.37 requirements.for physical protection'of spent nuclear fuel in transport is redundant since the regulation already imposes an obligation to comply with its provisions.
The utility further suggested that if a licensee were required to make available for public inspection detailed information relating to security of the shipments, the purposes of S 73.37 would be defeated.
A State agency thought that adoption of the Wisconsin petition would compromise the security of spent nuclear fuel shipments by making known during the
~
public hearing process the actual shipment dates and times. An individual commented that announcement of proposed shipments in the Federal Register would breach some needed security and thereby increase the risk of sabotage or theft of the shipment.
The Commission does not agree with the utility's comment that there is no difference between having a requirement for a physical protection program in 10 CFR 73.37 and having the NRC staff review that program to assure that it satisfies those same requirements.
As with individuals working in any speciality, the NRC staff develops expertise from reviewing l
and discussing a large number of physical protection programs which the staff can then apply to its review of other programs.
In the Commission's judgment, this process results in greater assurance that the physical l
protection requirements of 10 CFR 73.37 are being adequately applied.
In fact, for some time an NRC staff review of a licensee's physical protection program for transportation of spent nuclear fuel has been done when the licensee applies for its route approval under S 73.37(b)(7).
29 t
[7590-01)
The Commission, however, does agree with the commenters that public hearings in which details of a particular shipment and the security arrange-ments regarding the shipment are discussed might result in~ increasing the risk of its sabotage or theft.
2.
Extending Scope of Wisconsin Petition A State recommended that the concept proposed in the Wisconsin peti-tion be extended to "other highly radioactive material that the Commis-sion... determines by rule requires permanent isolation" under the provi-sions of the Nuclear Waste Policy Act (NWPA).
The same commenter urged that the same rules also apply to spent nuclear fuel and high-level waste transportation activities undertaken by DOE. A second State also endorsed the amendments to 10 CFR Part 71 proposed by PRM 71-10, and was particu-larly concerned that the amendments apply to DOE shipments of spent nuclear fuel pursuant to the NWPA.
The State interpreted 10 CFR Part 71 require-ments as applying to the DOE shipments.
A public interest group supported the Wisconsin petition but asked that protection of the environment be added to the proposed consideration of minimizing radiological exposures.
The group also requested that the Commission, on receipt of a request for hearing while considering an indi-vidual licensing case, be required to hold a hearing within 60 days in the State from which the request was received.
In general, DOE activities - including spent nuclear fuel shipments -
are exempt from NRC regulation as a matter of law.
(For the principal exception, see Section 202 of the Energy Reorganization Act of 1974, as amended, 42 USC 5842.) It should be noted, however, that DOE is required by Section 137 of the NWPA, 42 USC 10157, to utilize by contract private 30
[7590-01]
industry to the fullest extent possible in each aspect of transportation of spent nuclear fuel under that Act.
As a result, the rules pertaining to licensed shipments may apply.
It is the Commission's view that no additional regulatory review of spent nuclear fuel shipments is necessary or desirable.
The same view would apply to other types of radioactive material with comparable hazards.
3.
Miscellaneous Support For and Opposition to the Petition Many of the commenters were forceful in their support for or opposi-tion to the petition without providing much new information which would
~
assist the Commission in deciding the issue. A sampling of those comments follows:
a.
Support For the Petition A public interest group supported the Wisconsin petition by asking for a public rulemaking proceeding to examine the issues raised by Wisconsin, and for a hearing to be held in Wisconsin.
The reasons for concern are the following:
1.
The lack of consideration of the need for spent nuclear fuel shipments; 2.
The lack of examination of alternatives to the shipment; 3.
The lack of physical testing of casks; 4.
The lack of demonstrated emergency response capability in case of a radiation accident; and 5.
The lack of a clear evaluation of alternative routes.
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[7590-01]
Another public interest group supported the Wisconsin petition because of its concern that there is no Federal agency considering the safety of the public or environmen-tal risks involved in radioactive waste shipments.
A State Representative believed that "despite the extreme hazard of these radioactive materials the safety of these shipments has not been adequately assured." He~ cited the failure to determine the need for the shipments, safety and environmental risks associated with specific routes, and lack of adequate emergency response capabil.ity as the
~
reasons for inadequate safety.
He concluded by stating that all citizens subject to the hazards of these highly radioactive shipments have the right to be assured that all possible steps are being taken to assure their safety.
One individual supported the Wisconsin petition based on his belief that no adverse or ill effects would be realized by power companies or shippers of spent nuclear fuel.
b.
Opposition To The Petition An industry commenter made the point that the pe'titioner has not identified a need for adoption of the proposed rule, and the petition contains no new data or information which would point out inadequacies in the current regulatory basis.
The commenter stated his belief that the current transport regulations of the Commission and the correspond-ing regulations of the DOT provide significantly more than adequate assurances of the public health and safety.
32
[7590-01]
A utility, in addition to finding the Wisconsin proposal inappropriate and unnecessary, found the language of the proposal so vague'in places that one could not demonstrate compliance.
The utility also believed that spent nuclear fuel transportation has relatively benign credible accident consequences compared to many chemical shipments which are not subject to such scrutiny.
A utility referred to a report by Drs. Courtney and Lambremont of Louisiana State University on a review of 190 scientific and technical papers examining radioactive mate-rial transportation over an 18 year period.
The reviewers concluded that "the risk to the general public from the transportation of radioactive materials is extremely low.
The extensive amount of work which supports this conclusion reflects a remarkable international consensus."
A utility believed the Wisconsin proposal unnecessary given (1) the emphasis on cask design safety; (2) the security provisions of Part 73; (3) the spent nuclear fuel considera-tions in reactor licensing hearings; and (4) the regulations of the DOT.
The utility argued that there has been no showing that an additional evaluation would provide any increased public hellth and safety protection.
A representative of an Indian Tribe noted that the Wisconsin proposal omits any reference to a Tribal government's inter-est in applications for approval of spent nuclear fuel shipments and is thus inconsistent with policies under the 33
[7590-01]
NWPA which generally encourage Tribal consent and consulta-tion in the decision-making process.
A utility, after considering the NRC regulatory framework, safeguards / safety studies, and the safeguards / safety record, recommended that current requirements be reduced.
VI.
NRC CONCLUSION The petition was examined in the context of the Memorandum of Understanding (MOU) between NRC and 00T dated June 8, 1979 (published July 2,1979; 44 FR 38690), by which transportation regulatory functions are divided between the two agencies in the interest of completeness and avoidance of duplication of effort. Where the MOU calls for the DOT to lead in some particular area, such as in the regulation of carriers of radioactive material and the routes over which they travel, NRC does not consider its regulations or its regulatory programs to be deficient t
because they do not duplicate that control.
The Commission concludes that its existing regulation of the transportation of spent nuclear fuel, when viewed in the context of the combined programs of NRC, 00T, DOE, FEMA and the States, is sufficient to provide adequate assurance against unreasonable risk to the health and safety of the public.
The contentions cited in the petition are therefore not accepted by the Commission as adequate justification for the charfges requested in the petition.
The Commission also concludes that the procedures suggested in the petition would not significantly serve to improve the protection of the public against unreasonable risk from the transportation of radioactive materials.
I I
34 I
[7590-01)
For the above reasons, the NRC has denied this petition.
While denying the State of Wisconsin's petition for rulemaking, the
. Commission certainly recognizes the concern on the part of Wisconsin and other States about the transportation of spent nuclear fuel and high level radioactive waste.
The transportation of spent nuclear fuel is an issue which will affect many States.
A safe and reliable spent nuclear fuel transportation system will be an important element for a successful nuclear waste disposal program.
While believing that the existing Federal system provides adequate
~
protection of the public health and safety, the Cgshission realizes the desire of States for greater participation in the transportation regula-tion process.
If States desire an additional degree of confidence that spent nuclear fuel is being transported safely within their borders, the Commission suggests that States examine the inspection and escort program of the State of Illinois.
Each spent nuclear fuel shipment traveling in Illinois is inspected by the State's Department of Nuclear Safety to assure that all applicable Federal and State radiation protection require-ments are met. The Illinois State Police inspect and escort trucks carrying these shipments.
The Illinois Commerce Commission inspects rail shipments.
This inspection and escort program provides Illinois with an s
35
eo
-[7590-01]
added measure of assurance that spent nuclear fuel is being transported safely without, it appears, imposing burdensome procedures on licensees and carriers.
Dated at Washington, DC, this //)
day of b[7 m, 1986.
For the Nuclear Regulatory Commission.
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Comissio e
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