[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59547-59551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23384]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

RIN: 3150-AI47
[NRC-2008-0404]


Consideration of Environmental Impacts of Temporary Storage of 
Spent Fuel After Cessation of Reactor Operation

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to revise 
its generic determination on the environmental impacts of storage of 
spent fuel at, or away from, reactor sites after the expiration of 
reactor operating licenses. The proposed revision reflects findings 
that the Commission has reached in the ``Waste Confidence'' decision 
update published elsewhere in this issue of the Federal Register. The 
Commission now proposes to find that, if necessary, spent fuel 
generated in any reactor can be stored safely and without significant 
environmental impacts beyond the licensed life for operation (which may 
include the term of a revised or renewed license) of that reactor at 
its spent fuel storage basin or at either onsite or offsite independent 
spent fuel storage installations (ISFSIs) until a disposal facility can 
reasonably be expected to be available.

DATE: Submit comments on the proposed rule by December 8, 2008. 
Comments received after this date will be considered if it is practical 
to do so, but NRC is able to assure consideration only for comments 
received on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Comments submitted in writing or in electronic form will be made 
available for public inspection. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0404]. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
[email protected].
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. 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 
301-415-1677).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.
    You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Neil Jensen, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone 301-415-8480, e-mail, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    In 1990, the Commission concluded a generic rulemaking proceeding 
to reassess its degree of confidence that radioactive wastes produced 
by nuclear power plants can be safely disposed of, to determine when 
such disposal or offsite storage will be available, and to determine 
whether radioactive wastes can be safely stored onsite past the 
expiration of existing facility licenses until offsite disposal or 
storage is available. This proceeding reviewed findings the Commission 
had made in 1984 on these issues in a generic rulemaking proceeding 
which became known as the ``Waste Confidence Proceeding.'' The 1990 
proceeding resulted in the following five reaffirmed or revised Waste 
Confidence findings:
    (1) The Commission finds reasonable assurance that safe disposal of 
high-level radioactive waste (HLW) and spent nuclear fuel (SNF) in a 
mined geologic repository is technically feasible;
    (2) The Commission finds reasonable assurance that at least one 
mined geologic repository will be available within the first quarter of 
the twenty-first century, and that sufficient repository capacity will 
be available within 30 years beyond the licensed life for operation 
(which may include the term of a revised or renewed license) of any 
reactor to dispose of the commercial HLW and SNF originating in such 
reactor and generated up to that time;
    (3) The Commission finds reasonable assurance that HLW and SNF will 
be managed in a safe manner until sufficient repository capacity is 
available to assure the safe disposal of all HLW and SNF;
    (4) The Commission finds reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 30 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor at its spent fuel storage basin, or at 
either onsite or offsite ISFSIs;
    (5) The Commission finds reasonable assurance that safe independent 
onsite spent fuel storage or offsite spent fuel storage will be made 
available if such storage capacity is needed. (55 FR 38474; September 
18, 1990).
    These five findings form the basis of the Commission's generic 
determination of no significant environmental impact

[[Page 59548]]

from temporary storage of SNF after cessation of reactor operation 
codified at 10 CFR 51.23(a):

    The Commission has made a generic determination that, if 
necessary, spent fuel generated in any reactor can be stored safely 
and without significant environmental impact for at least 30 years 
beyond the licensed life for operation (which may include the term 
of a revised or renewed license) of that reactor at its spent fuel 
storage basin or at either onsite or offsite independent spent fuel 
storage installations. Further, the Commission believes there is 
reasonable assurance that at least one mined geologic repository 
will be available within the first quarter of the twenty-first 
century, and sufficient repository capacity will be available within 
30 years beyond the licensed life for operation of any reactor to 
dispose of the commercial [HLW] and [SNF] originating in such 
reactor and generated up to that time.

    Thus, the environmental impacts of spent fuel storage for the 
period following the term of a reactor operating license or amendment 
or reactor combined license or amendment or initial independent spent 
fuel storage installation license or amendment need not be considered 
in proceedings on applications for such licenses or amendments. See 10 
CFR 51.23(b).
    In 1999, the Commission reviewed its Waste Confidence findings and 
concluded that experience and developments after 1990 had confirmed the 
findings and made a comprehensive reevaluation of the findings 
unnecessary. See 64 FR 68005; December 6, 1999.

Discussion

    Although the Commission concluded in 1999 that a detailed 
reevaluation of the Waste Confidence findings was unwarranted, it did 
state that it would consider undertaking a comprehensive reevaluation 
of the findings when the impending repository development and 
regulatory activities run their course or if significant and pertinent 
unexpected events occur, raising substantial doubt about the continuing 
validity of those findings. The Commission does not believe that these 
criteria have been met. However, the Commission is now preparing to 
conduct a significant number of proceedings on combined operating 
license (COL) applications for new reactors. This has led NRC to 
explore ways in which these proceedings may be conducted more 
efficiently by resolving appropriate issues generically in rulemaking 
proceedings.
    Waste confidence is such an issue. Prior to NRC's original Waste 
Confidence proceeding, the Commission had stated that, as a matter of 
policy, it ``would not continue to license reactors if it did not have 
reasonable confidence that the wastes can and will in due course be 
disposed of safely.'' Natural Resources Defense Council; Denial of 
Petition for Rulemaking, 42 FR 34391, 34393; July 5, 1977. It has been 
18 years since the Commission last conducted a formal review of its 
Waste Confidence findings and there may be concerns that one or more of 
the findings are now out-of-date or at least not sufficiently 
supportive of the upcoming COL proceedings. In anticipation of these 
concerns, the Commission has prepared an update of the 1990 findings 
and now proposes to revise two of the findings. A detailed examination 
of its updated findings and proposals is announced separately in this 
issue of the Federal Register.
    The update and proposed revisions to the findings have led the 
Commission to propose a modification of its generic determination of no 
significant environmental impact from the temporary storage of spent 
fuel after cessation of reactor operations codified at 10 CFR 51.23(a). 
At present, this determination is supported by findings reached in 1990 
that: (1) Spent fuel can be stored safely and without significant 
environmental impacts for at least 30 years beyond the licensed life 
for operation of the reactor that generated the fuel; (2) the 
Commission has reasonable assurance that a geologic repository will be 
available by 2025; and (3) all reactors will be able to dispose of 
their spent fuel within 30 years beyond their licensed life for 
operation. As modified, this generic determination will be simplified 
to state that, if necessary, spent fuel generated in any reactor can be 
stored safely and without significant environmental impacts beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor at its spent fuel storage basin or at 
either onsite or offsite ISFSIs until a disposal facility can 
reasonably be expected to be available. The reasons for this 
modification are briefly explained below and more fully in the 
separately published update.

Safe Storage of Spent Fuel

    The Commission's update has strengthened its confidence in the 
safety and security of SNF storage, both in water pools and in ISFSIs. 
In 1990, the Commission determined that experience with water storage 
of SNF continued to confirm that pool storage is a benign environment 
for SNF that does not lead to significant degradation of spent fuel 
integrity; that the water pools in which the assemblies are stored will 
remain safe for extended periods; and that degradation mechanisms are 
well understood and allow time for appropriate remedial action. 
Similarly, by 1990, the Commission had gained experience with dry 
storage systems which confirmed the Commission's 1984 conclusions that 
material degradation processes in dry storage are well-understood, and 
that dry storage systems are simple, passive, and easily maintained. In 
fact, one of the bases for the Commission's confidence in the safety of 
dry storage was its issuance of an amendment in 1988 to 10 CFR part 72 
to address spent fuel storage in a monitored retrievable storage 
installation (MRS) for a license term of 40 years, with the possibility 
of renewal. Under the environmental assessment for the MRS rule, the 
Commission found confidence in the safety and environmental 
insignificance of dry storage for 70 years following a period of 70 
years of storage in a storage pool, for a total of 140 years of 
storage. See NUREG-1092: Environmental Assessment for 10 CFR Part 72 
``Licensing Requirements for the Independent Storage of Spent Fuel and 
High-Level Radioactive Waste,'' August 1984. Nothing has occurred in 
the intervening years which calls into question the Commission's 
confidence in the safety of both wet and dry storage of SNF over long 
periods in the normal operation of spent fuel pools and ISFSIs. NRC has 
approved a 20-year license renewal for a wet ISFSI and 40-year license 
renewals for two dry ISFSIs.
    Since 1990, the Commission's primary focus has been on potential 
accidents and, since the tragic events of September 11, 2001, on 
security events which might lead to a radioactive release from stored 
SNF. Multiple studies have been undertaken by NRC and by other 
entities, such as the National Academy of Sciences (NAS), of the safety 
and security of spent fuel storage, including the potential for the 
draining of a spent fuel pool leading to a zirconium fire and for an 
airplane crashing into an ISFSI. These studies and the Commission's 
regulatory actions in enhancing security at nuclear power plants 
(including the spent fuel pool) and at ISFSIs through issuance of 
orders to licensees and through new regulations have reinforced NRC's 
view that spent fuel storage systems are safe and secure and without 
significant environmental impacts. See, e.g., Letter to Senator Pete V. 
Domenici from Nils J. Diaz, March 14, 2005, enclosing NRC Report to 
Congress on the [NAS] Study on the Safety and Security of Commercial 
[SNF] Storage, March 2005; Denial of Petitions for Rulemaking: The

[[Page 59549]]

Attorney General of the Commonwealth of Massachusetts, The Attorney 
General of California, PRM-51-10, PRM-51-12, 73 FR 46204; August 8, 
2008; In the Matter of Private Fuel Storage, LLC, CLI-05-19; 62 NRC 403 
(2005).
    In sum, the characteristics of spent fuel storage facilities, the 
studies of the safety and security of spent fuel storage, NRC's 
extensive experience in regulating spent fuel storage and ISFSIs and in 
certifying dry cask storage systems, and NRC's actions in approving 40-
year license renewals for two ISFSIs (meaning that the safety of dry 
storage after licensed operation at these ISFSIs has been approved for 
at least a 60-year period) confirm the Commission's confidence that 
spent fuel storage is safe and secure over long periods of time. The 
current generic determination is phrased in terms of confidence that 
SNF can be stored safely and without significant environmental impacts 
for at least 30 years beyond the licensed life for operation of the 
reactor. The Commission explained in 1990 that this time period was not 
intended to represent any technical limitation for safe and 
environmentally benign storage; rather, this time period only reflected 
its expectation that sufficient repository capacity would be available 
for any reactor's spent fuel within 30 years of the end of its licensed 
operations. See 55 FR 38509; September 18, 1990. For the reasons 
explained briefly below, and more fully in the separately published 
update, the Commission no longer finds it useful to include this time 
limitation in its generic determination that SNF can be stored safely 
and without significant environmental impacts after the end of a 
reactor's licensed operation.

The Availability of a Repository

    The Commission's accumulated experience of the safety of long-term 
spent fuel storage with no significant environmental impact and its 
accumulated experience of the safe management of spent fuel storage 
during and after the expiration of the reactor operating license have 
motivated it to propose that, instead of predicting a particular date 
(currently 2025) for the availability of a repository, it would be more 
appropriate to make a general finding of reasonable assurance that SNF 
generated in any reactor can be stored safely and without significant 
environmental impacts until a disposal facility can reasonably be 
expected to be available. Dispensing with the 2025 date does not 
signify a lack of confidence that a repository will be available by 
that date. DOE submitted its license application for the proposed 
repository at Yucca Mountain, Nevada on June 3, 2008 and on September 
08, 2008, NRC Staff notified DOE that it found the application 
acceptable for docketing (73 FR 53284; September 15, 2008). The NRC has 
no reason at this point to conclude that the availability of a 
repository by 2025 is not possible and it would be premature to revise 
the date for that reason. However, the Commission recognizes that a 
repository can only be available by that date if the Commission 
ultimately renders a favorable decision on the application. Those 
decisions must await the outcome of any NRC licensing proceedings held 
on the application. The Commission has many times affirmed its 
commitment to be an impartial adjudicator of the application and does 
not believe that the existence of the 2025 date poses any threat to its 
commitment \1\, but the Commission now has an opportunity to reconsider 
the issue of repository availability and believes that deleting this 
date will have the advantage of removing even an appearance of 
prejudgment in a licensing proceeding for Yucca Mountain.
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    \1\ In 2006, Nevada claimed in court that the Waste Confidence 
Rule would skew the judgment of the Commissioners during the Yucca 
Mountain licensing proceeding. But the court dismissed the claim, 
ruling that the ``petitioner does not have standing to raise this 
claim because petitioner can point to no injury in fact as legal or 
practical consequence of the [Waste Confidence] Rule.'' State of 
Nevada v. Nuclear Regulatory Commission, 199 Fed. Appx. 1; 2006 U.S. 
App. LEXIS 24196 (DC Cir., September 22, 2006).
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    The Commission's proposal with respect to the availability of a 
repository focuses attention on when it may be reasonable to expect 
that a repository will be available. The Commission proposes to use a 
``target date'' approach as described in its proposed revision of Waste 
Confidence Finding 2. This approach is used by many nations with 
geologic repository programs and can be a useful vehicle for 
considering the complex technical and institutional issues involved in 
predicting repository availability. The NRC believes that it is 
reasonable to assume that it will be known by 2025 whether a repository 
is available at the Yucca Mountain site and intends to use this date as 
the starting-off point for a new repository program on the assumption 
that, for whatever reason, a repository does not become available at 
Yucca Mountain. The Commission remains confident that disposal of SNF 
and HLW in a geologic repository is technically feasible and that DOE 
should be able to locate a suitable site for repository development in 
no more time than was needed for the Yucca Mountain repository program 
(about 20 years). However, both domestic and international developments 
have made clear that confidence in the technical feasibility of a 
repository alone is not sufficient to bring about the broader societal 
and political acceptance for a repository. Achieving this broader 
support for construction of a repository at a particular site involves 
many different types of public outreach which, based on international 
examples described in the update, suggests a range of 25-35 years to 
obtain. This means that if a new repository program began in 2025, it 
would be reasonable to expect that a repository would become available 
by 2050-2060. It must be emphasized that this does not represent a hard 
and fast date by which a repository must be available for safety 
reasons. The Commission did not define a period when a repository will 
be needed for safety or environmental reasons in 1990 and it is not 
doing so now; it is only explaining its view of when repository 
capacity may be reasonably expected to be available. For this reason, 
the Commission proposes to delete reference to the availability date 
for the repository from its generic determination.

Availability of Repository Capacity for Disposal of Spent Fuel From All 
Reactors

    At present, the Commission's generic determination of no 
significant environmental impact from the temporary storage of spent 
fuel after cessation of reactor operation includes a prediction that 
sufficient repository capacity will be available within 30 years beyond 
the licensed life for operation of any reactor for disposal of its 
spent fuel. This prediction was not based on safety or environmental 
considerations; it was based on finding that 30 years beyond the 
licensed life for operation of even the earliest reactors would not 
occur until after 2025. Thus, the Commission's confidence that a 
repository would be available by 2025 still meant that no reactor would 
need to store its SNF for more than 30 years beyond its licensed life 
for operation. If it is assumed that a repository will not be available 
until 2050-2060, this prediction can no longer be maintained. There are 
18 reactor licenses that will expire between 2009 and 2020 and an 
additional 44 licenses that will expire between 2021 and 2030. See 
2007-2008 USNRC Information Digest, NUREG-1350, Vol. 19, Table 11, p.48 
(Information Digest). For licenses that are not renewed, some spent 
fuel will need to be stored for more than 30 years beyond the licensed 
life for operation. There are 22 reactors which were

[[Page 59550]]

formerly licensed to operate, but which have been permanently shut 
down. See Information Digest, Appendix B. For most of these plants, 30 
years beyond the licensed life for operation will fall in the 2030s and 
2040s. Thus, for virtually all of these plants, spent fuel will have to 
be stored beyond 30 years from the expiration of the license if a 
repository is not available until 2050-2060. For this reason, the 
Commission is proposing to modify its generic determination to delete 
the prediction that sufficient repository capacity will be available 
within 30 years beyond the expiration of the licensed life for 
operation on all reactors. As stated above, this was not a safety 
finding and the deletion is made solely to be consistent with an 
assumption that a repository will not be available until 2050-2060. The 
Commission is proposing to revise Finding 2 to predict that repository 
capacity will be available within 50-60 years beyond the licensed life 
for operation of all reactors (and is requesting public comment on 
whether a timeframe should be included at all in Finding 2--see below) 
and, consistent with this, is proposing to revise Finding 4 to find 
that spent fuel generated in any reactor can be stored safely and 
without significant environmental impact for at least 60 years beyond 
the licensed life for operation of the reactor.

Specific Question for Public Comment

    The Commission's proposed revision of Finding 2 to include a 
timeframe for availability of repository capacity within 50-60 years 
beyond the licensed life for operation of all reactors is based on its 
assessment not only of its understanding of the technical issues 
involved, but also predictions of the time needed to bring about the 
necessary societal and political acceptance for a repository site.
    Recognizing the inherent difficulties in making such predictions, 
the Commission seeks specific comment on whether it should revise its 
approach to Finding 2 and adopt a more general finding of reasonable 
assurance that SNF generated in any reactor can be stored safely and 
without significant environmental impacts until a disposal facility can 
reasonably be expected to be available. In other words, in response to 
the concerns raised by the U.S. Court of Appeals for the District of 
Columbia Circuit in State of Minnesota v. NRC, 602 F.2d 412 (1979) that 
precipitated the original Waste Confidence proceeding, the Commission 
could now say that there is no need to be concerned about the 
possibility that spent fuel may need to be stored at onsite or offsite 
storage facilities at the expiration of the license (including a 
renewed license) until such time as a repository is available because 
we have reasonable assurance that spent fuel can be so stored for long 
periods of time, safely and without significant environmental impact. 
Such a finding would be made on the basis of the Commission's 
accumulated experience of the safety of long-term spent fuel storage 
with no significant environmental impact (see Finding 4) and its 
accumulated experience of the safe management of spent fuel storage 
during and after the expiration of the reactor operating license (see 
Finding 3).
    The Commission seeks comment on this alternative revision of 
Finding 2 and whether additional information is needed for or 
accompanying changes should be made to its other Findings on the long 
term storage of spent fuel if such a revision of Finding 2 were to be 
adopted.

Summary of Proposed Amendments by Section

    Section 51.23(a) would be amended to provide the Commission's 
generic determination that, if necessary, spent fuel generated in any 
reactor can be stored safely and without significant environmental 
impacts beyond the licensed life for operation (which may include the 
term of a revised or renewed license) of that reactor at its spent fuel 
storage basin or at either onsite or offsite ISFSIs until a disposal 
facility can reasonably be expected to be available.

Plain Language

    The Presidential memorandum ``Plain Language in Government 
Writing,'' published June 10, 1998 (63 FR 31883), directed that the 
Government's writing be in clear and accessible language. The NRC 
requests comments on this proposed rule specifically with respect to 
the clarity and effectiveness of the language used. Comments should be 
sent to the NRC as explained in the ADDRESSES portion of this document.

Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113) requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. In this proposed rule, NRC would modify its 
generic determination that, if necessary, spent fuel generated in any 
reactor can be stored safely and without significant environmental 
impacts for at least 30 years beyond the licensed life for operation 
(which may include the term of a revised or renewed license) of that 
reactor at its spent fuel storage basin or at either onsite or offsite 
ISFSIs. This action does not constitute the establishment of a standard 
that establishes generally applicable requirements.

Finding of No Significant Environmental Impact: Availability

    This proposed rule amends 10 CFR part 51 of the Commission's 
regulations to modify the generic determination currently codified in 
Part 51 which was made by the Commission in the 1990 Waste Confidence 
rulemaking proceeding. That generic determination was that for at least 
30 years beyond a reactor's licensed life for operation (which may 
include the term of a revised or renewed license) no significant 
environmental impacts will result from the storage of spent fuel 
generated in that reactor in its spent fuel storage basin or at either 
onsite or offsite independent spent fuel storage installations. The 
proposed modification provides that, if necessary, spent fuel generated 
in any reactor can be stored safely and without significant 
environmental impacts beyond the licensed life for operation (which may 
include the term of a revised or renewed license) of that reactor at 
its spent fuel storage basin or at either onsite or offsite independent 
spent fuel storage installations until a disposal facility can 
reasonably be expected to be available. The environmental analysis on 
which the revised generic determination is based can be found in the 
proposed revision and update to the Waste Confidence findings published 
elsewhere in this issue. This proposed rulemaking formally 
incorporating the revised generic determination in the Commission's 
regulations has no separate independent environmental impact. The 
proposed revisions and update to the Waste Confidence findings are 
available as specified in the ADDRESSES section of this notice.

Paperwork Reduction Act Statement

    This proposed rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget approval number 3150-0021.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to a request for information or an information collection 
requirement unless the requesting document

[[Page 59551]]

displays a currently valid OMB control number.

Regulatory Analysis

    A draft regulatory analysis has not been prepared for this proposed 
regulation because this regulation does not establish any requirements 
that would place a burden on licensees.

Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the 
Commission certifies that this rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The proposed rule would describe a revised basis for continuing in 
effect the current provisions of 10 CFR 51.23(b) which provides that no 
discussion of any environmental impact of spent fuel storage in reactor 
facility storage pools or ISFSIs for the period following the term of 
the reactor operating license or amendment or initial ISFSI license or 
amendment for which application is made is required in any 
environmental report, environmental impact statement, environmental 
assessment, or other analysis prepared in connection with certain 
actions. This rule affects only the licensing and operation of nuclear 
power plants or ISFSIs. Entities seeking or holding Commission licenses 
for these facilities do not fall within the scope of the definition of 
``small entities'' set forth in the Regulatory Flexibility Act or the 
size standards established by the NRC at 10 CFR 2.810.

Backfit Analysis

    The NRC has determined that the backfit rule (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) does not apply to this proposed rule because 
this amendment would not involve any provisions that would impose 
backfits as defined in the backfit rule. Therefore, a backfit analysis 
is not required.

List of Subjects in 10 CFR Part 51

    Administrative practice and procedure, Environmental impact 
statement, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendment to 10 CFR Part 51.

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

    1. The authority citation for Part 51 continues to read as follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106 
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297(f)); secs. 201, as 
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A 
also issued under National Environmental Policy Act of 1969, secs. 
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 
4335), and Public Law 95-604, Title II, 92 Stat. 3033-3041; and sec. 
193, Public Law 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 
51.20, 51.30, 51.60, 41.80, and 51.97 also issued under secs. 135, 
141, Public Law 97-425, 96 Stat. 2232, 2241, and sec. 148, Public 
Law 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). 
Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended 
by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste 
Policy Act of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). 
Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy 
Act of 1982, sec 114(f), 96 Stat 2216, as amended (42 U.S.C. 10134 
(f)).
    2. In Sec.  51.23, paragraph (a) is revised to read as follows:


Sec.  51.23  Temporary storage of spent fuel after cessation of reactor 
operation--generic determination of no significant environmental 
impact.

    (a) The Commission has made a generic determination that, if 
necessary, spent fuel generated in any reactor can be stored safely and 
without significant environmental impacts beyond the licensed life for 
operation (which may include the term of a revised or renewed license) 
of that reactor at its spent fuel storage basin or at either onsite or 
offsite independent spent fuel storage installations until a disposal 
facility can reasonably be expected to be available.
* * * * *

    Dated at Rockville, Maryland, this 29th day of September 2008.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E8-23384 Filed 10-8-08; 8:45 am]
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