[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Rules and Regulations]
[Pages 81037-81076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31637]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[NRC-2008-0482]


Waste Confidence Decision Update

AGENCY: Nuclear Regulatory Commission.

ACTION: Update and final revision of Waste Confidence Decision.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
updating its Waste Confidence Decision of 1984 and, in a parallel 
rulemaking

[[Page 81038]]

proceeding, revising its generic determinations in the NRC's 
regulations.

ADDRESSES: 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, Room 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 1-800-397-4209, 301-415-4737, or by e-mail to 
[email protected].
    Federal Rulemaking Web site: Public comments and supporting 
materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2008-0482.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, e-mail: [email protected]; Lisa London, 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone: 301-415-3233, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On September 18, 1990 (55 FR 38474), the NRC issued a decision 
reaffirming and revising, in part, the five Waste Confidence Findings 
reached in its 1984 Waste Confidence Decision. The 1984 Decision and 
the 1990 update to the Decision were products of rulemaking proceedings 
designed to assess the degree of assurance that radioactive wastes 
generated by nuclear power plants can be safely disposed of, to 
determine when disposal or offsite storage would 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. In 2008, the Commission decided to undertake a 
review of its Waste Confidence Decision and Rule as part of an effort 
to enhance the efficiency of combined license proceedings for 
applications for nuclear power plant (NPP) licensees anticipated in the 
near future by ensuring that the findings are up to date.
    The Commission has considered developments since 1990 and has 
reviewed its five prior findings and supporting environmental analysis. 
As a result of this review, the Commission is revising the second and 
fourth findings in the Waste Confidence Decision as follows:

    Finding 2: The Commission finds reasonable assurance that 
sufficient mined geologic repository capacity will be available to 
dispose of the commercial high-level radioactive waste and spent 
fuel generated in any reactor when necessary.
    Finding 4: The Commission finds reasonable assurance that, if 
necessary, spent fuel generated in any reactor can be stored safely 
without significant environmental impacts for at least 60 years 
beyond the licensed life for operation (which may include the term 
of a revised or renewed license) of that reactor in a combination of 
storage in its spent fuel storage basin and either onsite or offsite 
independent spent fuel storage installations.

    The Commission reaffirms the three remaining findings. Each finding 
and the reasons for revising or reaffirming the finding are discussed 
below. In keeping with revised Findings 2 and 4, the Commission is 
concurrently publishing in this issue of the Federal Register 
conforming amendments to 10 CFR 51.23(a), which provides a generic 
determination of the environmental impacts of storage of spent fuel at, 
or away from, reactor sites after the expiration of reactor operating 
licenses, and expresses reasonable assurance that sufficient geologic 
disposal capacity will be available when necessary.
    In October 1979, the NRC initiated a rulemaking proceeding, known 
as the Waste Confidence proceeding, to assess its degree of assurance 
that radioactive wastes produced by NPPs ``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'' (44 FR 61372, 61373; October 25, 
1979). The Commission's action responded to a remand from the U.S. 
Court of Appeals for the District of Columbia Circuit in State of 
Minnesota v. NRC, 602 F.2d 412 (DC Cir.1979). That case questioned 
whether an offsite storage or disposal solution would be available for 
the spent nuclear fuel (SNF) produced at the Vermont Yankee and Prairie 
Island NPPs at the expiration of the licenses for those facilities in 
2007-2009 or, if not, whether the SNF could be stored at those reactor 
sites until an offsite solution was available.
    The Waste Confidence proceeding also stemmed from the Commission's 
statement, in denying a petition for rulemaking filed by the Natural 
Resources Defense Council (NRDC), that it intended to periodically 
reassess its finding of reasonable assurance that methods of safe 
permanent disposal of high-level radioactive waste (HLW) would be 
available when they were needed. Further, the Commission 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'' (42 FR 34391, 34393; July 5, 1977), 
pet. for rev. dismissed sub nom., NRDC v. NRC, 582 F.2d 166 (2d Cir. 
1978)).\1\
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    \1\ The NRDC petition asserted that the Atomic Energy Act of 
1954 (AEA). Public Law 83-703, 68 Stat. 919 (1954), required NRC to 
make a finding, before issuing an operating license for a reactor, 
that permanent disposal of HLW generated by that reactor can be 
accomplished safely. The Commission found that the AEA did not 
require this safety finding to be made in the context of reactor 
licensing, but rather in the context of the licensing of a geologic 
disposal facility.
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    The Waste Confidence proceeding resulted in the following five 
Waste Confidence Findings, which the Commission issued on August 31, 
1984:

    (1) The Commission finds reasonable assurance that safe disposal 
of HLW and SNF in a mined geologic repository is technically 
feasible;
    (2) The Commission finds reasonable assurance that one or more 
mined geologic repositories for commercial HLW and SNF will be 
available by the years 2007-2009 and that sufficient repository 
capacity will be available within 30 years beyond the expiration of 
any reactor operating license to dispose of existing 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 expiration of that reactor's operating license at that 
reactor's spent fuel storage basin, or at either onsite or offsite 
independent spent fuel storage installations (ISFSIs);
    (5) The Commission finds reasonable assurance that safe 
independent onsite or offsite spent fuel storage will be made 
available if such storage capacity is needed (49 FR 34658).

    Based on these findings, the Commission promulgated 10 CFR 51.23(a) 
to provide a generic determination that for at least 30 years

[[Page 81039]]

beyond the expiration of reactor operating licenses, no significant 
environmental impacts will result from the storage of spent fuel in 
reactor facility storage pools or ISFSIs located at reactor or away-
from-reactor sites and that the Commission had reasonable assurance 
that a permanent disposal facility would be available by 2007-2009.
    The Commission conducted a review of its findings in 1989-1990, 
which resulted in the revision of Findings 2 and 4 to reflect revised 
expectations for the date of availability of the first repository, and 
to clarify that the expiration of a reactor's operating license 
referred to the full 40-year initial license for operation, as well as 
any additional term of a revised or renewed license:

    (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 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;
    (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.
    (55 FR 38474; September 18, 1990)

    The Commission similarly amended the generic determination in 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 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]. 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. (55 FR 
38472; September 18, 1990).

    This generic determination is applied in licensing proceedings 
conducted under 10 CFR parts 50, 52, 54, and 72. See 10 CFR 51.23(b) 
(2010).
    In 1999, the Commission reviewed its Waste Confidence Findings and 
concluded that experience and developments since 1990 had confirmed the 
findings and made a comprehensive reevaluation of the findings 
unnecessary. It also stated that it would consider undertaking a 
reevaluation when the pending repository development and regulatory 
activities had run their course or if significant and pertinent 
unexpected events occurred that raise substantial doubt about the 
continuing validity of the Waste Confidence Findings (64 FR 68005; 
December 6, 1999). The Commission has not found that the criteria put 
forth in 1999 for reevaluating its findings have been met. But because 
the Commission is now preparing to conduct a significant number of 
proceedings on combined license (COL) applications for new reactors, 
and the issue of waste confidence has been raised in some of those 
proceedings and may be raised in others, it is prudent to take a fresh 
look at the NRC's Waste Confidence Findings now, before completing the 
agency's review of new reactor license applications.
    On February 14, 2002, the Secretary of Energy recommended the Yucca 
Mountain (YM) site for the development of a repository to the President 
thereby setting in motion the approval process set forth in sections 
114 and 115 of the Nuclear Waste Policy Act, as amended (NWPA). See 42 
U.S.C. 10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2) (2006). On 
February 15, 2002, the President recommended the site to Congress. On 
April 8, 2002, the State of Nevada submitted a notice of disapproval of 
the site recommendation. Congress responded on July 9, 2002, by passing 
a joint resolution approving the development of a repository at YM, 
which the President signed on July 23, 2002. See Public Law 107-200, 
116 Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 
2004)).
    On June 3, 2008, the Department of Energy (DOE) submitted the 
``Yucca Mountain Repository License Application,'' seeking NRC's 
authorization to begin construction of a permanent HLW repository at 
YM. U.S. Department of Energy, License Application for a High-Level 
Waste Geologic Repository at Yucca Mountain (2008), available at http://www.nrc.gov/waste/hlw-disposal/yucca-lic-app.html. On September 8, 
2008, the NRC staff found that the application contained sufficient 
information for the staff to begin its detailed technical review, and 
docketed the application (73 FR 53284; September 15, 2008). On October 
17, 2008, the Commission issued a ``Notice of Hearing and Opportunity 
to Petition for Leave to Intervene'' (73 FR 63029; October 22, 2008). 
Requests for hearing were received from 12 parties and 2 interested 
governmental entities; these requests included 318 contentions to the 
application.\2\ The Construction Authorization Boards granted 10 of 
these petitions to intervene and admitted all but 17 of the 318 
contentions (ADAMS Accession Number ML091310479).
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    \2\ ADAMS Accession Numbers ML083540096, ML083540230, 
ML083550015, ML083570102, ML083570371, ML083570416, ML083570731, 
ML083570732, ML083570741, ML083570761, ML083570773, ML083570775, 
ML083570779, ML083570788, ML083570789, ML083590091, ML090050465, 
ML083540836.
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    On January 29, 2010, President Obama directed the Secretary of 
Energy to create a ``Blue Ribbon Commission on America's Nuclear 
Future'' to evaluate options for the back-end of the nuclear fuel 
cycle. See Presidential Memorandum--Blue Ribbon Commission on America's 
Nuclear Future (January 29, 2009), available at http://www.whitehouse.gov/the-press-office/presidential-memorandum-blue-ribbon-commission-americas-nuclear-future.
    In the YM proceeding, DOE filed a ``Motion to Stay the 
Proceeding,'' on February 1, 2010, which stated that the President, in 
the proposed budget for fiscal year 2011, ``directed that the 
Department of Energy `discontinue its application to the U.S. Nuclear 
Regulatory Commission for a license to construct a high-level waste 
geologic repository at Yucca Mountain in 2010 * * *' '' (ADAMS 
Accession Number ML100321641 at 1). The Motion also stated that the 
proposed budget indicated that all DOE funding for YM would be 
eliminated in 2011. Id. Therefore, DOE stated its intent to withdraw 
the license application by March 3, 2010, and requested a stay of the 
proceeding to avoid unnecessary expenditure of resources by the Board 
and parties. See Id. at 2. Construction Authorization Board 4 granted a 
stay of the proceeding on February 16, 2010 (ADAMS Accession Number 
ML100470423).
    On February 19, 2010, Aiken County, South Carolina filed an action 
in the U.S. Court of Appeals for the District of Columbia Circuit, 
challenging DOE's decision to seek withdrawal of the license 
application. Similar lawsuits filed by three individuals living near 
Hanford, Washington (the Ferguson Petitioners), the State of South 
Carolina, and the State of Washington were consolidated into one 
proceeding now before the District of Columbia Circuit. See In re Aiken 
County, No. 10-1050 (and consolidated cases) (DC Cir.).

[[Page 81040]]

    On March 3, 2010, DOE filed with the NRC a Motion to withdraw its 
license application with prejudice (ADAMS Accession Number 
ML100621397). On June 29, 2010, Construction Authorization Board 4 
issued a Memorandum and Order (Granting Intervention to Petitioners and 
Denying Withdrawal Motion), LBP-10-11, ---- NRC ----, denying DOE's 
motion to withdraw as outside its authority under the NWPA (ADAMS 
Accession Number ML101800299). The Secretary of the Commission invited 
briefs from all the parties in the YM proceeding on whether to review 
and whether to uphold or reverse the Board's decision. The Commission 
has not yet acted on these questions.
    Although the proposed updates to the Waste Confidence Decision and 
Rule did not consider some of these recent developments, the Commission 
has assumed, for the purposes of these updates, that YM would not be 
built. Even so, the new YM developments are pertinent. The Commission 
believes that the updates to the Waste Confidence Decision and Rule 
reflect the uncertainty regarding the timing of the availability of a 
geologic repository for SNF and HLW. The Commission, as a separate 
action, has directed the staff to develop a plan for a longer-term 
rulemaking and Environmental Impact Statement (EIS) to assess the 
environmental impacts and safety of long-term SNF and HLW storage 
beyond 120 years (SRM-SECY-09-0090; ADAMS Accession Number 
ML102580229). This analysis will go well beyond the current analysis 
that supports at least 60 years of post-licensed life storage with 
eventual disposal in a deep geologic repository. The Commission 
believes that a more expansive analysis is appropriate because it will 
provide additional information (beyond the reasonable assurance the 
Commission is recognizing in the current rulemaking) on whether spent 
fuel can be safely stored for a longer time, if necessary. This 
analysis could reduce the frequency with which the Commission must, as 
a practical matter, consider waste storage capabilities. The staff's 
new review will require an analysis and, to some extent, a forecast of 
the safety and environmental impacts of storage for extended periods of 
time beyond that currently recognized in 10 CFR 51.23 and the Waste 
Confidence Decision. While storage of spent fuel for 60 years beyond 
licensed life has been shown through experience or analyses to be safe 
and not to have a significant environmental impact, the proposed 
technical analysis will go well beyond the time frame of existing 
requirements.
    Even though the Commission has not determined whether this 
particular analysis will result in a different conclusion concerning 
the environmental impacts of extended spent fuel storage, the 
Commission believes that this unprecedented long-term review should be 
accompanied by an EIS. Preparing an EIS will ensure that the agency 
considers these longer-term storage issues from an appropriate 
perspective. The Commission has therefore decided to exercise its 
discretionary authority under 10 CFR 51.20(a)(2) and is directing the 
staff to prepare a draft EIS to accompany the proposed rule developed 
as a result of this longer-term analysis. The updates to the Waste 
Confidence Decision in this document and the final rule published in 
this issue of the Federal Register rely on the best information 
currently available to the Commission and therefore are separate from 
this long-term initiative. The updates to the Waste Confidence Decision 
and Rule are not dependent upon the staff completing any action outside 
the scope of these revisions to the Waste Confidence Decision and Rule.
    Based upon the technical and environmental analysis contained in 
this document, and discussed at length below, the Commission has 
prepared this update of the Waste Confidence Decision and now makes the 
following revisions to Findings 2 and 4:

    (2) The Commission finds reasonable assurance that sufficient 
mined geologic repository capacity will be available to dispose of 
the commercial high-level radioactive waste and spent nuclear fuel 
generated by any reactor when necessary.
    (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 60 years 
beyond the licensed life for operation (which may include the term 
of a revised or renewed license) of that reactor in a combination of 
storage in its spent fuel storage basin and either onsite or offsite 
ISFSIs.

    The update to the Waste Confidence Decision restates and 
supplements the bases for the earlier findings and addresses the public 
comments received on the proposed revisions to the findings.
    The Commission is also concurrently publishing in this issue of the 
Federal Register a final rule revising 10 CFR 51.23(a) to conform to 
the revisions of Findings 2 and 4.

Responses to Public Comments

    The NRC received comments from environmental and other public 
interest organizations; the nuclear industry; States, local 
governments, an Indian Tribe, and inter-governmental organizations; and 
individuals. Comments from the 158 letters, including a late 
supplemental letter from the Attorney General of New York, have been 
categorized and grouped under 8 issues for purposes of this discussion. 
The issues include comments made in two form letters received from 
1,990 and 941 commenters, respectively.

Issue 1: Compliance of the Waste Confidence Decision With the National 
Environmental Policy Act (NEPA)

    Comment 1: A large number of commenters stated that the NRC has not 
complied with NEPA in issuing its proposed revisions to the Waste 
Confidence Decision and to its generic determination in 10 CFR 51.23(a) 
because they believe that the revisions need to be supported by a 
Generic Environmental Impact Statement (GEIS). The National Resources 
Defense Council (NRDC) argues that these two agency actions ``are, in 
effect, generic licensing decisions that allow for the production of 
additional spent reactor fuel and other radioactive wastes associated 
with the uranium fuel cycle--essentially in perpetuity.'' Thus, these 
``generic licensing decisions,'' in NRDC's view, must ``be accompanied 
by a [GEIS] that fully assesses the environmental impacts of the entire 
uranium fuel cycle, including health and environmental impacts and 
costs, and that examines a reasonable array of alternatives, including 
the alternative of not producing any additional radioactive waste.''
    Texans for a Sound Energy Policy (TSEP) stated that ``the NRC has 
relied on the Waste Confidence Decision to license and re-license many 
nuclear power plants, and therefore it constitutes a major federal 
action significantly affecting the environment,'' requiring preparation 
of an EIS.
    The Attorney General of New York argued that the NRC should 
``require and perform a site-specific evaluation of environmental 
impacts of spent fuel storage at each reactor location, taking into 
account environmental factors including surrounding population density, 
water resources, seismicity, subsurface geology, and topography along 
with the design, construction, and operating experience of the spent 
fuel pool in question and the layout of the fuel assemblies in that 
pool.'' The Attorney General believes that these ``new factual 
conclusions also provide compelling evidence to support * * * 
[consideration] in relicensing

[[Page 81041]]

proceedings, such as the ongoing proceeding for the Indian Point power 
reactors, of any properly presented environmental and safety contention 
focused on the adequacy of mitigation measures taken or to be taken at 
that site to address the safety and environmental impacts flowing from 
the 20 additional years of spent fuel storage at the reactor site, the 
increased volume of spent fuel created during those 20 years, and the 
indefinite storage at that reactor site of all the waste generated by 
that reactor.'' Finally a form letter, used by many commenters, asserts 
``it is appropriate that any major Federal action on radioactive waste 
(such as changing the Waste Confidence Decision) be considered in a 
generic (programmatic) NEPA proceeding'' that includes all aspects of 
the nuclear fuel chain.
    NRC Response: In considering the NRC's compliance with NEPA in 
revising its Waste Confidence Decision and Rule, it is important to 
keep in mind the limited scope of these revisions. The NRC is amending 
its generic determination of no significant environmental impact from 
the temporary storage of spent fuel after cessation of reactor 
operation contained in 10 CFR 51.23(a) to conform it to the 
Commission's revised Findings 2 and 4 of the Waste Confidence Decision.
    In revised Finding 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 60 
years (rather than 30 years, as in the present finding) beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor in a combination of storage in its 
spent fuel storage basin and either onsite or offsite ISFSIs. The 
revised generic determination in 10 CFR 51.23(a) is dependent upon the 
environmental analysis supporting revised Finding 4.
    The revision also incorporates the Commission's supporting analysis 
for revised Finding 2, which looks at the time necessary to develop a 
repository (about 25-35 years) and concludes that reasonable assurance 
exists that sufficient mined geologic repository capacity will be 
available when necessary to dispose of the commercial HLW and SNF 
originating in such reactor and generated up to that time. As the 
Commission indicated in its Staff Requirements Memorandum (SRM) 
approving publication of this Decision and the final rule, the changes 
to Finding 2 do not mean that the Commission has endorsed indefinite 
storage of SNF and HLW.\3\ See SRM-SECY-09-0090; ADAMS Accession Number 
ML102580229.
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    \3\ This reflects the Commission's confidence that a repository 
will be made available before the storage of the SNF and HLW becomes 
unsafe or would result in significant environmental impacts. Finding 
2 also reflects the Commission's belief that it cannot have 
confidence in a target date because it cannot predict when the 
societal and political obstacles to a successful repository program 
will be overcome. Once those obstacles are overcome, the Commission 
has confidence that a repository can be sited, licensed, and 
constructed within 25-35 years.
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    The revised generic determination is not a generic licensing 
decision--it generically deals with one aspect of licensing decisions 
that have yet to be made. It does not authorize the operation of a NPP, 
the renewal of a license of a NPP, or the production of spent fuel by a 
NPP. NPPs and renewals of operating licenses are licensed in individual 
licensing proceedings. The NRC must prepare a site-specific EIS in 
connection with any type of application to construct and operate a NPP. 
See 10 CFR 51.20(b). For operating license renewals, the NRC may rely 
on NRC's GEIS for License Renewal of Nuclear Plants, NUREG-1437, May 
1996, for issues that are common to all plants and must also prepare a 
Supplemental EIS that evaluates site-specific issues not discussed in 
the GEIS or ``new and significant information'' regarding issues that 
are discussed in the GEIS.\4\ See 10 CFR part 51, subpart A, appendix 
B.
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    \4\ The Commission issued a proposed rule updating the 1996 GEIS 
on July 31, 2009 (74 FR 38117) for a 75-day public comment period; 
the staff is currently preparing responses to the public comments.
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    Both types of licensing proceedings are supported by both generic 
and specific EISs. The generic determination in Sec.  51.23(a) does 
play a role in the environmental analyses of the licensing and license 
renewal of individual NPPs; it excuses applicants for those licenses 
and the NRC from conducting an additional site-specific environmental 
analysis only within the scope of the generic determination in 10 CFR 
51.23(a). Thus, 10 CFR 51.23(b) provides:

    Accordingly, * * * within the scope of the generic determination 
in paragraph (a) of this section, 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, reactor combined license or amendment, or 
initial ISFSI license or amendment for which application is made, is 
required in any environmental report, [EIS], [EA], or other analysis 
prepared in connection with the issuance or amendment of an 
operating license for a [NPP] under parts 50 and 54 of this chapter, 
or issuance or amendment of a combined license for a [NPP] under 
parts 52 and 54 of this chapter, or the issuance of an initial 
license for storage of spent fuel at an ISFSI, or any amendment 
thereto (emphasis added).

In short, the environmental analysis, which is done as part of the 
licensing or license renewals of individual NPPs, as well as the 
initial licensing of an ISFSI, does consider the potential 
environmental impacts of storage of spent fuel during the term of the 
license. What is not considered in those proceedings--due to the 
generic determination in 10 CFR 51.23(a)--is the potential 
environmental impact of storage of spent fuel for a 60-year period 
after the end of licensed operations or the potential environmental 
impacts of ultimate disposal. Environmental analysis for this period is 
covered by the environmental analysis the NRC has done in this update 
to the Waste Confidence Decision, particularly under Findings 3, 4, and 
5. This analysis enables the Commission to generically resolve this 
issue because it demonstrates that spent fuel can be safely stored and 
managed under a 10 CFR part 50 or 10 CFR part 72 license after the 
cessation of reactor operations for at least a 60-year period. Further, 
if it becomes clear that a repository will not be available by the 
expiration of the 60-year post licensed life period, the Commission 
will revisit the Waste Confidence Decision and Rule early enough to 
ensure that it continues to have reasonable assurance of the safe 
storage without significant environmental impacts of the SNF and HLW.
    In addition, the NRC's Waste Confidence Decision and Rule do not 
pre-approve any particular waste storage or disposal site technology--
although the Decision does evaluate the technical feasibility of deep 
geologic disposal--nor do they require that a specific cask design be 
used for storage. Individual licensees and applicants, or in the case 
of a HLW repository, DOE, will have to apply for and meet all of the 
NRC's safety and environmental requirements before the NRC will issue a 
license for storage or disposal.
    The NRC must prepare an EIS when the proposed action is a major 
Federal action significantly affecting the quality of the human 
environment or when the proposed action involves a matter that the 
Commission, in the exercise of its discretion, has determined should be 
covered by an EIS. 10 CFR 51.20(a). The NRC's rulemaking action here is 
to incorporate a revised generic determination into 10 CFR 51.23(a), 
which expands from at least 30 years to at least 60 years after 
licensed life the period during which the Commission has confidence 
that spent fuel can be

[[Page 81042]]

safely stored without significant environmental impacts and to state 
its confidence that a permanent repository will be available when 
necessary. As the Commission explained in 1984 and 1990, this final 
rulemaking action formally incorporating the revised generic 
determination in the Commission's regulations does not have separate 
independent environmental impacts (49 FR 34693; August 31, 1984, 55 FR 
38473; September 18, 1990). The environmental analysis that the revised 
generic determination is based on is found in this update to the Waste 
Confidence Decision, which serves as the Environmental Assessment (EA) 
for the rule.
    The updates to the Waste Confidence Decision and Rule, as explained 
above, do not authorize any licensing or other Federal action. The rule 
does have the effect of removing from a reactor operating license 
proceeding, license renewal proceeding, or initial ISFSI licensing 
proceeding the issue of whether safe storage of SNF can be accomplished 
without any significant environmental impact for an additional 30 years 
beyond the 30 years provided by the current generic determination. The 
update to the Waste Confidence Decision explains and documents the 
Commission's continued reasonable assurance that this extended storage 
period will have no significant environmental impacts. Given this 
conclusion, a finding of no significant environmental impact (FONSI) 
may be made and preparation of an EIS is not required.
    Comment 2: A number of commenters asserted that the NRC, in making 
its FONSI, has not complied with its procedural requirements for a 
FONSI: 10 CFR 51.32, or with the requirements of the Council on 
Environmental Quality: 40 CFR 1508.13. In particular, some commenters 
claim that the NRC has not published an EA, as required by 10 CFR 
51.32, and has not identified all the documents that the FONSI is based 
on. TSEP asserts that the NRC's alleged failure to comply with its 
procedural requirements for a FONSI also results in a violation of the 
Administrative Procedure Act because it means the public has not had an 
opportunity to comment on the basis for the FONSI.
    NRC Response: As explained in response to Comment 1, the only 
Federal action involved in this rulemaking is the amendment of 10 CFR 
51.23(a). This amendment adopts the expansion, by 30 years, of the 
Commission's Finding 4 in its 1990 Waste Confidence Decision that spent 
fuel generated in any reactor can be stored safely and without 
significant environmental impacts after the licensed life for operation 
of the reactor; the amendment also captures the revisions to Finding 2 
in the Waste Confidence Decision that deep geologic disposal capacity 
will be available when necessary. This is the action described in the 
NRC's proposed FONSI (See 73 FR 59550; October 9, 2008).
    The formal incorporation of revised Findings 2 and 4 into 10 CFR 
51.23(a) has no separate independent environmental impact from the 
revisions of Findings 2 and 4. The update and revision of the Waste 
Confidence Decision is the EA supporting the action and the basis for 
the FONSI and, as evidenced by the breadth of comments received, the 
findings of the Waste Confidence Decision have been made available for 
public review and comment. The update was undertaken, as a matter of 
discretion, to ensure the currency of the Waste Confidence Findings, 
which have not been changed in nearly 20 years.
    The NRC's procedural requirements for an EA call for a brief 
discussion of the need for the proposed action, alternatives to that 
action, and the environmental impacts of the proposed action and 
alternatives as well as a list of agencies and persons consulted and 
identification of the sources used. See 10 CFR 51.30(a). The 
Commission's proposal explained that the need for an update of the 1990 
Waste Confidence Decision was prompted by a desire to make anticipated 
licensing proceedings for new reactors more efficient by resolving any 
concerns that the generic determination was out of date and could not 
be relied upon in these licensing proceedings (See 73 FR 59553, 59558; 
October 9, 2008). The Commission's proposed rule also explicitly raised 
the question, in the context of revising Finding 2, whether it should 
remove a target date from Finding 2 and 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 (See 73 FR 59561-
59562; October 9, 2008).
    The Commission explained what the basis of this alternative finding 
would be:

    In other words, in response to the court's concerns 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). Id.

    The Commission explicitly sought public comment on whether any 
additional information would be needed to make this change. The update 
to the Waste Confidence Decision shows that there would be no 
difference between the environmental impacts of the proposed action of 
extending the time period for safe storage of SNF by 30 years and the 
no-action alternative of leaving it as it is. The Commission also 
stated in its proposed update and rule that the environmental impacts 
of the alternative of indefinite storage may be the same, but found no 
need to make this prediction due to its expectation that a repository 
will be available within 50-60 years of the end of any reactor's 
license for the disposal of its spent fuel.
    The Commission has, however, now reconsidered its position 
regarding the use of the 50-60 year target date: The Commission has 
confidence that spent fuel can be safely stored without significant 
environmental impact for long periods of time as described in its 
discussion of Findings 3, 4, and 5. But there are issues beyond the 
Commission's control, including the political and societal challenges 
of siting a HLW repository, that make it premature to predict a precise 
date or time frame when a repository will become available.\5\ The 
Commission has therefore decided not to adopt a specific time frame in 
Finding 2 or its final rule. Instead, the Commission is expressing its 
reasonable assurance that a repository will be available ``when 
necessary.''
---------------------------------------------------------------------------

    \5\ These political and societal issues are discussed in the 
analysis of Finding 2 in this document.
---------------------------------------------------------------------------

    The Commission believes that this standard accurately reflects its 
position, as discussed in the analysis supporting Finding 2, that a 
repository can be constructed within 25-35 years of a Federal decision 
(e.g., congressional action or executive order) to start a new 
repository program. The Commission continues to have confidence, as 
expressed in Findings 3 and 5, that safe and sufficient onsite or 
offsite storage capacity is and will be available until the waste is 
sent to a repository for disposal. In addition, revised Finding 4 
supports safe onsite or offsite storage without significant 
environmental

[[Page 81043]]

impacts for at least 60 years beyond the end of the licensed life for 
operation of any nuclear power reactor. Given that long period of time, 
the current ``Blue-Ribbon Commission'' studying options for handling 
SNF, the Commission's direction to the NRC staff to consider whether it 
is feasible to expand the 60-year period for safe storage, and a 
continued Federal obligation to site and build a repository under the 
Nuclear Waste Policy Act, the Commission has reasonable assurance that 
disposal capacity will become available when necessary and that there 
will be sufficient safe and environmentally sound storage for all of 
the spent nuclear fuel until disposal capacity becomes available.
    Further, the Commission has decided not to endorse the concept of 
indefinite storage that was discussed with the alternative Finding 2 in 
the proposed rule (73 FR 59561-59562; October 9, 2008). The Commission 
has determined that it is not necessary to endorse indefinite storage 
if there is no target date for a repository because the Commission has 
confidence that either a repository will be available before the 
expiration of the 60 years post-licensed life discussed in Finding 4 or 
that the Waste Confidence Decision and Rule will be updated and revised 
if the expiration of the 60-year period approaches without an ultimate 
disposal solution for the HLW and SNF.
    With respect to the claim that the NRC must make the documents on 
which its FONSI relies available to the public, the commenters are 
correct that the NRC must disclose all portions of the documents that 
informed its NEPA analysis and that are not exempt from public 
disclosure under the Freedom of Information Act (FOIA). The Commission 
acknowledged this fact when, in Pacific Gas and Electric Co. (Diablo 
Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-
08-01, 67 NRC 1 (2008), it directed the NRC staff to prepare a complete 
list of the documents on which it relied in preparing its EA.
    In the case of the update to the Waste Confidence Decision, the NRC 
has complied with this standard--all of the documents relied upon in 
preparing the update to the Waste Confidence Decision and Rule are 
referenced. Two of the referenced documents are not publicly available: 
reports concerning the safety and security of spent fuel pool storage 
issued by Sandia National Laboratories and the National Academy of 
Sciences (NAS), which are Classified, Safeguards Information, or 
Official Use Only--Security Related Information. Although these 
documents cannot be released to the public, redacted or publicly 
available summaries are available: A redacted version of the Sandia 
study can be found in ADAMS at (ADAMS Accession Number ML062290362) and 
the unclassified summary of the NAS report can be purchased or 
downloaded for free by accessing the NAS Web site at: http://www.nap.edu/catalog.php?record_id=11263. No other non-public documents 
are referenced in the Waste Confidence Decision.
    In sum, the NRC's FONSI identifies the proposed action and relies 
upon an EA that explains at considerable length the reasons why this 
action will not have a significant effect on the quality of the human 
environment and describes the documents relied upon and how these 
documents may be accessed by the public.
    Comment 3: A number of commenters asserted that the NRC has failed 
to comply with NEPA because the NRC has not prepared a GEIS to review 
and update Table S-3 of 10 CFR 51.51(b). Table S-3 lists environmental 
data to be used by applicants and the NRC staff as the basis for 
evaluating the environmental effects of the portions of the fuel cycle 
that occur before new fuel is delivered to the plant and after spent 
fuel is removed from the plant site for light-water reactors. Table S-3 
was incorporated into the NRC's regulations in 1979 and includes an 
assumption, based on NRC staff's analysis of disposal in a bedded-salt 
geologic repository, that after a repository is sealed there would be 
no further release of radioactive materials to the environment (the 
``zero release assumption''). The 1979 rulemaking also included an 
expectation that ``a suitable bedded-salt repository site or its 
equivalent will be found'' (44 FR 45362 and 45368; August 2, 1979).
    The commenters stated that the NRC's proposed revisions to the 
Waste Confidence Decision acknowledge that salt formations are now only 
being considered as hosts for reprocessed nuclear materials because 
heat-generating waste, like SNF, exacerbates a process by which salt 
can rapidly deform (See 73 FR 59555; October 9, 2008). For this and 
other reasons, the commenters believe that Table S-3 has been 
undermined and is out of date and needs to be reviewed in a GEIS. NRDC 
also believes that the Table S-3 Rule's ``finding of no significant 
health impacts fundamentally supports the Waste Confidence Decision 
because its estimate of zero radioactive releases from a repository is 
based on the Commission's then-current Waste Confidence finding, that 
`a suitable bedded-salt repository site or its equivalent will be 
found.' '' The commenters also note that the Commission, in 1990, 
indicated that it would find it necessary to review the Table S-3 Rule 
if it found, in a future review of the Waste Confidence Decision, that 
its confidence in the technical feasibility of disposal in a mined 
geologic repository had been lost (55 FR 38491; September 18, 1990). 
The commenters believe that the Commission lacks a basis for continued 
confidence in the technical feasibility of safe geologic disposal and 
that the relationship of the Table S-3 rule to the Waste Confidence 
Decision is such that a GEIS to review the Table S-3 Rule is a 
necessary prerequisite to a revision of the Waste Confidence Findings.
    NRC Response: The Waste Confidence Decision does not rely on 
findings made in the context of the Table S-3 Rule. Even in 1984, the 
Commission's confidence that a suitable geologic site for a repository 
would be found was not premised on the expectation that a bedded-salt 
site would be located, but rather on the fact that DOE's site 
exploration efforts were ``providing information on site 
characteristics at a sufficiently large number and variety of sites and 
geologic media to support the expectation that one or more technically 
acceptable sites will be identified.'' (49 FR 34668; August 31, 1984). 
Similarly, the issue of concern to the NRC in considering waste 
confidence has not been whether a zero-release assumption will be met, 
but rather when Environmental Protection Agency (EPA) would issue 
standards ensuring that any releases of radioactive materials to the 
environment would not be inimical to public health and safety (See 55 
FR 38500; September 18, 1990).
    In 1990, the Commission discussed the relationship of the Table S-3 
rulemaking with the Waste Confidence proceeding (See 55 FR 38490-38491; 
September 18, 1990). The Commission noted that the Table S-3 proceeding 
was the outgrowth of efforts to generically address the NEPA 
requirement for an evaluation of the environmental impacts of operation 
of a light water reactor (LWR), that Table S-3 assigned numerical 
values for environmental costs resulting from uranium fuel cycle 
activities to support one year of LWR operation, and that the Waste 
Confidence proceeding was not intended to make quantitative judgments 
about the environmental costs of waste disposal. The Commission stated 
that unless, ``in a future review of the Waste Confidence decision, 
[it] finds that it no longer has

[[Page 81044]]

confidence in the technical feasibility of disposal in a mined geologic 
repository, the Commission will not consider it necessary to review the 
S-3 rule when it reexamines its Waste Confidence Findings in the 
future'' (55 FR 38491; September 18, 1990). The Commission continues to 
have confidence in the technical feasibility of disposal in a mined 
geologic repository (see NRC Response to Comment 8 and the discussion 
of Finding 1 later in this document) so there is no need to review the 
S-3 rule to support its Waste Confidence Findings.\6\ This does not 
preclude the NRC from taking future regulatory action to amend Table S-
3 if doing so appears to be necessary or desirable. In 2008, the 
Commission stated that ``[t]he NRC will continue to evaluate, as part 
of its annual review of potential rulemaking activity, the need to 
amend Table S-3.'' New England Coalition on Nuclear Pollution; Denial 
of Petition for Rulemaking (73 FR 14946, 14949; March 20, 2008).
---------------------------------------------------------------------------

    \6\ As discussed below, Finding 1 deals with the general 
technical feasibility of a repository and is not dependent upon a 
specific site. Further, the Commission makes it clear in its 
discussion of Finding 2 that the Findings assume that YM will not be 
used as a geologic repository.
---------------------------------------------------------------------------

    Comment 4: The Attorney General of California believes that the 
Waste Confidence Decision violates core principles of NEPA and the 
NRC's regulations because it does not allow for supplementation of an 
EIS for an ISFSI even when there is significant change in the 
circumstances under which a project is carried out or when there is 
significant new information regarding the environmental impacts of the 
project. See 10 CFR 51.92(a). He asserts that ``NRC has not shown a 
clearly articulated justification, based on substantial evidence in the 
record, for the proposed extension of this presumption that no change 
in circumstance, and no new information, can ever trigger the NEPA duty 
to supplement the environmental analysis of the long-term onsite 
storage of nuclear waste.'' The Attorney General also believes that the 
proposed update to the Waste Confidence Decision allows NPPs ``to be 
substantially re-purposed and transformed into long-term storage 
facilities * * * without environmental review'' and that therefore 
supplementation of the initial EIS for the NPP may be warranted. 
Similarly, the Attorney General of New York, in a supplemental comment, 
argues that the Commission's proposed revision to Finding 2 (originally 
discussed in the Commissioners' September 2009 votes) endorses a policy 
of indefinite storage and that the Commission ``has not made a generic 
determination regarding environmental and safety issues presented by 
indefinite storage of spent fuel at the site of nuclear reactors 
following shutdown.''
    NRC Response: Under 10 CFR 51.23(b), the NRC does not need to 
prepare a site-specific EA or EIS during individual NPP licensing that 
discusses the environmental impacts of spent fuel storage for the 
period following the term of the reactor license or initial ISFSI 
license because of the generic determination the Commission has made in 
10 CFR 51.23(a) that spent fuel can be stored safely and without 
significant environmental impacts for at least 60 years beyond the 
licensed life of the reactor. The generic determination is based on the 
environmental analysis conducted in the Waste Confidence Decision. 
However, the commenter is not correct that this means that an EA or EIS 
for a reactor or an ISFSI may never need to be supplemented even if 
there is a significant change in circumstances or significant new 
information that demonstrates that the application of the generic 
determination would not serve the purposes for which it was adopted. 
Under 10 CFR 51.20(a)(2), the Commission, in its discretion, may 
determine that a proposed action involves a matter that should be 
covered by an EIS. Further, 10 CFR 2.335(b) provides that a party to an 
adjudicatory proceeding may petition for the waiver of the application 
of the rule or for an exception for that particular proceeding. The 
sole grounds for a petition for waiver or exception is that special 
circumstances with respect to the subject matter of the particular 
proceeding exist so that the application of the rule would not serve 
the purposes for which it was adopted.
    More fundamentally, as the Commission clarified in its SRM 
authorizing publication of this decision and final rule in the Federal 
Register, the changes to the Waste Confidence Decision and Rule are not 
intended to support indefinite storage. If the time frame for safe and 
environmentally sound storage included in Finding 4 approaches without 
the availability of sufficient repository capacity, the Commission will 
revisit the Waste Confidence Decision and Rule.
    Comment 5: Riverkeeper asserts that the NRC made its finding of no 
significant impact in its initial 1984 decision ``without performing an 
environmental review pursuant to NEPA, explicitly stating that an [EIS] 
was not necessary,'' and then has continued to make this finding 
without appropriate environmental review.
    NRC Response: Riverkeeper is correct that the NRC concluded in 1984 
that Finding 4--that SNF could be safely stored without significant 
environmental impacts for at least 30 years beyond the expiration of 
the reactor's operating license--did not require the support of an EIS 
(See 49 FR 34666; August 31, 1984). This does not mean that this 
finding was made without performing the required environmental review 
under NEPA. The Commission explained that the Waste Confidence Decision 
itself considered the environmental aspects of spent fuel storage and 
did comply with NEPA. Id. No EIS was conducted because the fourth 
finding concluded that the environmental impacts from extended storage 
of SNF are so insignificant as not to require consideration in an EIS. 
The NRC has explained in its response to Comment 1 why an EIS is 
unnecessary to support the expansion of its generic determination.

Issue 2: Compliance of the Waste Confidence Decision With the Atomic 
Energy Act (AEA)

    Comment 6: Several commenters asserted that the updates to the 
Waste Confidence Decision and Rule do not comply with the AEA. They 
stated that that the AEA precludes NRC from licensing any new NPP or 
renewing the license of any existing NPP if it would be ``inimical * * 
* to the health and safety of the public.'' 42 U.S.C. 2133(d) (2006). 
They note that the Commission continues to state that 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. These 
commenters assert that Finding 1 effectively constitutes a licensing 
determination that spent fuel disposal risks are not inimical to public 
health and safety, and that Findings 3, 4, and 5 effectively constitute 
a licensing determination that spent fuel storage risks are not 
inimical to public health and safety. Because the commenters believe 
that the NRC has presented no well-documented safety findings 
supporting its findings, they contend that the NRC's revisions of its 
findings are in violation of the AEA.
    NRC Response: As explained in the response to Comment 1, the NRC's 
update to the Waste Confidence Decision and Rule are not licensing 
decisions. They are not determinations made as part of the licensing 
proceedings for NPPs or ISFSIs or the renewal of those licenses. They 
do not authorize the storage of SNF in spent fuel pools or ISFSIs. The 
revised findings and generic determination are conclusions of the 
Commission's

[[Page 81045]]

environmental analyses, under NEPA, of the foreseeable environmental 
impacts stemming from the storage of SNF after the end of reactor 
operation.
    As long ago as 1978, the U.S. Court of Appeals for the Second 
Circuit considered the question ``whether NRC, prior to granting 
nuclear power reactor operating licenses, is required by the public 
health and safety requirement of the AEA to make a determination * * * 
that high-level radioactive wastes can be permanently disposed of 
safely.'' Natural Resources Defense Council v. NRC, 582 F. 2d 166, 170 
(1978) (emphasis in original). The court found that the NRC was not 
required to make a finding under the AEA that SNF could be disposed of 
safely at the time a reactor license was issued, but that it was 
appropriate for the Commission to make this finding in considering a 
license application for a geologic repository. Similarly, the U.S. 
Court of Appeals for the District of Columbia Circuit did not vacate 
amendments to NPP operating licenses permitting the reracking of spent 
fuel storage pools because it was concerned about the availability of 
storage or disposal facilities at the end of licensed operation. State 
of Minnesota v. NRC, 602 F. 2d 412 (DC Cir. 1979). Rather, that court 
was concerned that the Commission's confidence in these matters had not 
been subjected to public scrutiny, so it directed the Commission to 
conduct a rulemaking proceeding to assess its degree of confidence on 
these issues, leading to the original Waste Confidence proceeding.
    The Commission will make the safety finding with respect to SNF 
disposal envisioned by the commenters in the context of a licensing 
proceeding for a geologic repository. The Commission does make the 
safety findings with respect to storage of SNF envisioned by the 
commenters in the context of licensing proceedings for NPPs and ISFSIs 
for the terms of those licenses.

Issue 3: What is the meaning of ``reasonable assurance'' in the waste 
confidence Findings?

    Comment 7: One commenter expressed the view that the NRC should 
continue to take a position of suspending the licensing of reactors if 
it does not have confidence beyond a reasonable doubt that wastes can 
and will be disposed of safely. Another commenter criticized the NRC 
for ``fail[ing] to define the standard for reasonable assurance--what 
level of assurance that they found in making their determination--90%, 
51%, 5%.''
    NRC Response: The ``reasonable assurance'' standard is not 
equivalent to the ``beyond a reasonable doubt'' standard used in the 
criminal law. North Anna Environmental Coalition v. NRC, 533 F.2d 655, 
667 (DC Cir. 1976) (North Anna).\7\ It is more akin to a ``clear 
preponderance of the evidence'' standard, and what constitutes 
``reasonable assurance'' depends on the particular circumstances of the 
issue being examined. In a 2009 decision affirming the license renewal 
of the Oyster Creek NPP, the Commission explained: ``Reasonable 
assurance is not quantified as equivalent to a 95% (or any other 
percent) confidence level, but is based on sound technical judgment of 
the particulars of a case and on compliance with our regulations * * * 
.'' In re Amergen Energy Co. (License Renewal for Oyster Creek Nuclear 
Generating Station), CLI-09-07, 69 NRC 235 (April 1, 2009).
---------------------------------------------------------------------------

    \7\ In North Anna, the court considered whether the Commission's 
``reasonable assurance'' standard required an applicant for a NPP 
license to prove beyond a reasonable doubt that an earthquake fault 
under the proposed site was not capable. The court found that 
neither the AEA nor the pertinent regulations required the 
Commission to find, under its reasonable assurance standard, that 
the site was totally risk-free. See also Power Reactor Development 
Co. v. International Union of Electrical, Radio and Machine Workers, 
367 U.S. 396, 414 (1961), where the Supreme Court rejected a claim 
that the Commission's finding of reasonable assurance needed to be 
based on ``compelling reasons'' when a construction permit for a 
reactor sited near a large population center was being considered.
---------------------------------------------------------------------------

    Thus, the Commission's reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely without 
significant environmental impacts for at least 60 years beyond the 
licensed life for operation of that reactor is based on a clear 
preponderance of the technical and scientific evidence described in the 
discussion of Finding 4. The Commission's reasonable assurance in 
Finding 2, that sufficient repository capacity will be available when 
necessary, is somewhat different; it does not include a specific date 
for when a repository will be available and is supported by an analysis 
that considers how long it may take to successfully complete the 
process to select a site, license, and build a repository. This 
analysis is not purely scientific, and thus the evidence has more 
qualitative content than evidence considered for strictly scientific or 
technical issues.

Issue 4: Whether the Commission Has an Adequate Basis for Reaffirming 
Finding 1

    Comment 8: TSEP believes that the Commission lacks a sound basis 
for reaffirming Finding 1: that there is reasonable assurance that safe 
disposal of HLW and SNF in a mined geologic repository is technically 
feasible. In support of its view, TSEP provides the comments of the 
Institute for Energy and Environmental Research (IEER) by Dr. Arjun 
Makhijani. IEER stated that ``the Waste Confidence Decision presents a 
safety finding, under the Atomic Energy Act, that the NRC has 
reasonable assurance that disposal of spent fuel will not pose an undue 
risk to public health and safety. It does so via the finding that 
disposal is technically feasible and can be done in conformity with the 
assumption of zero releases in Table S-3 * * *.'' IEER believes that 
the NRC has failed to address available information, which shows that 
the NRC currently does not have an adequate technical basis for a 
reasonable level of confidence that spent fuel can be isolated in a 
geologic repository.
    IEER defines ``safe disposal'' as involving ``(i) the safety of 
building the repository, putting the waste in it, and backfilling and 
sealing it, and (ii) the performance relative to health and 
environmental protection standards for a long period after the 
repository is sealed * * *. [I]t is essential to show a reasonable 
basis for confidence that the public and the environment far into the 
future will be adequately protected from the effects of disposal at a 
specific site and a specific engineered system built there.'' Further, 
IEER believes that ``reasonable assurance'' requires ``a statistically 
valid argument based on real-world data that would show (i) that all 
the elements for a repository exist and (ii) that they would work 
together as designed, as estimated by validated models. The evidence 
must be sufficient to provide a reasonable basis to conclude that the 
durability of the isolation arrangements would be sufficient to meet 
health and environmental standards for long periods of time * * * with 
a high probability.'' IEER believes that the NRC does not have the 
requisite reasonable assurance because the NRC ``has not taken into 
account a mountain of data and analysis'' derived from the YM 
repository program and from the French program at the Bure site, which 
illustrate the problems these programs have encountered and thus show, 
in IEER's view, ``that it is far from assured that safe disposal of 
spent fuel in a geologic repository is technically feasible.'' IEER 
also cites to the historical difficulty the EPA has had in formulating 
radiation protection standards and notes that ``[w]ithout a final 
standard that is clear of court challenges, performance assessment

[[Page 81046]]

must necessarily rest on guesses about what it might be; this is not a 
basis on which `reasonable assurance' of the technical feasibility of 
`safe disposal' can be given, for the simple reason that there is no 
accepted definition of safe in relation to Yucca Mountain as yet.''
    NRC Response: IEER confuses the safety finding that the NRC must 
make under the AEA when considering an application for a license to 
construct and operate a repository at an actual site with the Waste 
Confidence Findings made under NEPA, including the finding that there 
is reasonable assurance that safe disposal of HLW and SNF is 
technically feasible. See response to Comment 6. The NRC currently has 
before it DOE's application for a construction authorization at the YM 
site and, if the proceeding moves forward, will consider information 
submitted with admitted contentions that may call into question DOE's 
ability to safely dispose of HLW and SNF at that site. However, it is 
very important that the Commission preserve its adjudicatory 
impartiality and not consider ex parte communications of the type 
proffered by IEER outside of the YM licensing proceeding, and it has 
been careful not to do so in the context of reviewing its Waste 
Confidence Decision. See 10 CFR 2.347.
    Webster's Third New International Dictionary (1993) defines 
``feasible'' as ``capable of being done, executed, or effected: 
possible of realization.'' The Commission began its discussion of 
Finding 1 in its original 1984 decision by stating that ``[t]he 
Commission finds that safe disposal of [HLW and SNF] is technically 
possible and that it is achievable using existing technology'' (49 FR 
34667; August 31, 1984) (emphasis added). The Commission then went on 
to say: ``Although a repository has not yet been constructed and its 
safety and environmental acceptability demonstrated, no fundamental 
breakthrough in science or technology is needed to implement a 
successful waste disposal program.'' Id. This focus on whether a 
fundamental breakthrough in science or technology is needed has guided 
the Commission's consideration of the feasibility of the disposal of 
HLW and SNF.
    The Commission identified three key technical problems that would 
need to be solved: the selection of a suitable geologic setting, the 
development of waste packages that can contain the waste until the 
fission product hazard is greatly reduced, and engineered barriers that 
can effectively retard migration of radionuclides out of the 
repository. Id. In 1984, the Commission reviewed evidence indicating 
that there are geologic media in the United States in many locations 
potentially suitable for a waste repository; that the chemical and 
physical properties of HLW and SNF can be sufficiently understood to 
permit the design of a suitable waste package; and that DOE's 
development work on backfill materials and sealants provided a 
reasonable basis to expect that backfill materials and long-term seals 
can be developed. In 1990, the Commission noted that the NRC staff had 
not identified any fundamental technical flaw or disqualifying factor 
for any of the nine sites DOE had identified as potentially acceptable 
for a repository, even though the HLW program was then focused 
exclusively on the YM site (55 FR 38486; September 18, 1990). 
Similarly, the Commission found no reason to abandon its confidence in 
the technical feasibility of developing a suitable waste package and 
engineered barriers, even though DOE's scientific programs were focused 
on Yucca Mountain (See 55 FR 38488-38490; September 18, 1990). Both the 
EPA and the NRC have standards in place that would have to be met by 
either the proposed repository at YM or a repository at any other site. 
See 40 CFR parts 190 and 197 and 10 CFR parts 60 and 63.
    IEER does not assert that the need for a scientific or technical 
breakthrough stands in the way of establishing any possible repository; 
IEER believes that the evidence it has offered shows that a repository 
at YM will not be capable of meeting the EPA's standards and the NRC's 
performance objectives. This could turn out to be the case, but this 
does not mean that safe disposal of HLW and SNF in some repository is 
not possible.

Issue 5: Whether the Commission Has an Adequate Basis To Revise Finding 
2

    Comment 9: Many commenters responded to the Commission's request 
for comments on whether the Commission should revise Finding 2 to 
predict that repository capacity will be available within 50-60 years 
beyond the licensed life for operation of all reactors or whether the 
Commission should 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.
    Specific Question for Public Comment: In its proposed rule and its 
proposed revisions to the Waste Confidence Decision, the Commission 
explicitly requested public comment on an alternative approach to 
Finding 2 (73 FR 59550 and 73 FR 59561; March 20, 2008). The Commission 
recognized that its proposed revision of Finding 2, to include a time 
frame 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 this prediction, 
the Commission outlined an alternative approach wherein it would 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. This 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 and storage of spent fuel 
during and after the expiration of the reactor operating license (see 
Finding 3). The Commission also asked whether additional information is 
needed for this approach or whether accompanying changes should be made 
to its other findings on the long-term storage of spent fuel if this 
approach is adopted.
    The State of Nevada (NV), Clark and Eureka Counties in NV, and the 
Nuclear Energy Institute (NEI) provided comments supporting the 
alternative approach to Finding 2. NV supports the approach because it 
believes that specifying a time frame involves too much speculation 
about public acceptance, future technology, a possible redirection of 
the waste disposal program, adequate funding, and the outcome of the 
NRC licensing proceedings. NV believes that ``whatever the NRC's period 
of safe storage might be, it is long enough for the Commission to 
generally conclude that, even if Yucca Mountain fails, one or more 
other repository sites (or some other form of disposition) would be 
available before dry storage of reactor spent fuel * * * could pose any 
significant safety or environmental problem.'' Further, NV suggested 
that if the Commission followed this approach, it could dispense with 
Finding 2 altogether since Finding 3 provides reasonable assurance that 
HLW and SNF will be managed in a safe manner until sufficient 
repository capacity is available. Clark and Eureka Counties believe 
that focusing waste

[[Page 81047]]

confidence on management of SNF allows for consideration of a more 
systemic approach to waste management that considers an array of 
options and takes into account evolving energy policy at the national 
and international level, technology enhancements, and scientific 
research that could lead to new approaches and alternatives. NEI stated 
that ``identifying the exact number of years involved is not necessary 
because, for whatever length of time is needed, the NRC's regulations 
will continue to provide a high standard of safety in the storage of 
spent nuclear fuel, and industry is compelled to comply with these 
regulations.''
    Many comments from States, State organizations, one NV county, 
environmental groups and individuals opposed the alternative approach 
and want the Commission to retain a time frame. These commenters 
believe that a time frame is necessary to provide an incentive to the 
Federal Government to meet its responsibilities for the disposal of 
HLW. One commenter favored only a slight extension of the repository 
availability date to 2035 in the belief that a further extension or 
removal of a time frame would remove virtually all societal incentives 
for the United States to develop a geologic repository. Some commenters 
feared that removal of a time frame, which would remove any pressure on 
the Federal Government to resolve the SNF disposal issue, would lead to 
added costs to taxpayers due to the accumulating damages incurred by 
DOE because of its failure to honor its contracts for accepting SNF. 
Nye County, NV believes that removal of the time frame implies that 
there is no urgency in implementing the NWPA. Nye County believes that 
waste confidence would better be achieved if Finding 2 included a 
reaffirmation of the need for a repository for ultimate waste 
confidence and for its role in the nation's commitment to support the 
environmental cleanup of weapons program sites because a repository 
will be needed even if other options for spent fuel management, such as 
recycling, are adopted.
    Some commenters believe that removal of a time frame does not 
acknowledge the intergenerational ethical concerns of this generation 
reaping the benefits of nuclear energy, and passing off the nuclear 
waste products to future generations without providing them with any 
ultimate disposal solution. Nye County believes that intergenerational 
equity is still the primary international basis for the policy of 
geologic disposal. The Western Interstate Energy Board, in urging 
retention of a time frame, states that the NRC should be concerned 
about the possibility of indefinite storage of SNF because it 
undermines support for a plan for disposal of nuclear waste, noting 
that approval of a new generation of NPPs should be contingent on a 
credible plan by which the Federal Government meets its 
responsibilities.
    The Attorneys General of New York, Vermont, and Massachusetts 
believe that ``NRC has admitted that its original thirty-year time 
estimation was based on no scientific or technical facts, but instead 
on the period of time in which it expected a repository to be 
available. * * * The NRC's reasoning--that because no problems 
significant in NRC's eyes have [yet] occurred * * *, no problems will 
occur no matter how long spent fuel remains on reactor sites--is 
antithetical to science, the laws of time, and common sense. For 
example, over an indefinite period of storage, the probability of a 
severe earthquake increases.'' They believe that the NRC's alternative 
approach is arbitrary because there is no basis for unconditional 
confidence in the indefinite onsite or offsite storage of waste. 
Further, the Attorney General of New York argues (in supplemental 
comments) that the Commission's September 2009 votes on the draft final 
rule, which would remove a target date from Finding 2 (and which the 
Commission decided to do in September 2010), support the idea that fuel 
will have to be stored indefinitely.\8\ Similarly, another commenter 
asserted that it is questionable whether the storage of SNF at current 
sites for 150 years or more ``is safe and feasible merely on the basis 
of the much more limited experience involving SNF storage to date, 
particularly at ISFSIs, and at fewer locations with lower quantities of 
SNF, compared to what would exist over such a long time span.''
---------------------------------------------------------------------------

    \8\ The Commission's September 2009 votes, along with the 
September 2010 votes, are available at http://www.nrc.gov/reading-rm/doc-collections/commission/cvr/2009/2009-0090vtr.pdf.
---------------------------------------------------------------------------

    In addition, the Attorneys General believe that in proposing to 
revise the generic determination in 10 CFR 51.23(a) without reference 
to any time frame, the NRC has prematurely and inappropriately adopted 
the alternative approach without waiting for public comments. 
Similarly, the Prairie Island Indian Community believes that, in the 
absence of a time frame, ``the Waste Confidence Rule would be premised 
on the pure speculation that a disposal facility will be available at 
some unknown point in the future.'' NRDC believes that the NRC's 
alternative approach ``is contrary to the NRC's long-standing policy of 
[having] at least some minimal time limitation on the actions of its 
licensees with respect to active institutional controls at nuclear 
facilities,'' e.g., 10 CFR 61.59(b), which prohibits reliance on 
institutional controls for more than 100 years by the land owner or 
custodial agency of a low-level waste disposal site.
    NRC Response: In 1990, the Commission explained that it had not 
identified a date by which health and safety reasons require that a 
repository must be available (55 FR 38504; September 18, 1990). The 
Commission noted that in 1984 it had found under Finding 3 that SNF 
would be safely managed until sufficient repository capacity is 
available, but that safe management would not need to continue for more 
than 30 years beyond the expiration of any reactor's operating license 
because sufficient repository capacity was expected to become available 
within those 30 years. The Commission also reached the conclusion under 
Finding 4 that SNF could be safely stored for at least 30 years beyond 
the expiration of the operating license. Id.
    In 1990, the Commission considered a license renewal term of 30 
years in its analysis supporting Findings 2 and 4 \9\ and explained its 
reasons for believing that ``there is ample technical basis for 
confidence that spent fuel can be stored safely and without significant 
environmental impact at these reactors for at least 100 years'' (55 FR 
38506; September 18, 1990). Thus, it is not correct to say that ``NRC 
has admitted that its original thirty-year time estimation was based on 
no scientific or technical facts.'' Rather, the NRC's estimate was 
based on both when it expected a repository to be available and all the 
scientific and technical facts it discussed under Findings 3 and 4 that 
support a conclusion that SNF can be safely managed and stored for at 
least that period of time. In fact, the Commission considered a comment 
urging it to find that SNF can be stored safely in dry storage casks 
for 100 years (55 FR 38482; September 18, 1990). The Commission did not 
``dispute a conclusion that dry spent fuel storage is safe and 
environmentally acceptable for a period of 100 years,'' but rejected 
this suggestion because it found that safe storage without significant 
environmental impact could take place for ``at least'' 30 years beyond 
the licensed life for operation of the reactor, and because it 
supported ``timely

[[Page 81048]]

disposal of [SNF and HLW] in a geologic repository, and by this 
Decision does not intend to support storage of spent fuel for an 
indefinitely long period.'' Id.
---------------------------------------------------------------------------

    \9\ The license renewal period for operating reactors in 10 CFR 
part 54 is 20 years.
---------------------------------------------------------------------------

    The fact that the Commission, in 1990 and now, has confidence that 
SNF can be safely stored for long periods of time does not mean, 
however, that the Commission has examined scientific and technological 
evidence supporting indefinite storage. The commenters supporting 
alternative Finding 2 did not provide evidence supporting indefinite 
storage, nor has the Commission adopted findings that support 
indefinite storage. The State of Nevada, in its 2005 petition for 
rulemaking, requested, inter alia, that the NRC define ``availability'' 
by presuming that some acceptable disposal site would be available at 
some undefined time in the future. In denying the petition, the 
Commission said ``[w]e find this approach inconsistent with that taken 
in the 1984 [WCD] because it provides neither the basis for assessing 
the degree of assurance that radioactive waste can be disposed of 
safely nor the basis for determining when such disposal will be 
available'' (70 FR 48333; August 17, 2005).
    As explained in response to Comment 1, the Commission's action in 
this update of the 1990 Waste Confidence Decision is to expand its 
generic determination in 10 CFR 51.23(a) by 30 years, an action that 
results in no significant environmental impacts and therefore does not 
require an EIS. The Commission's approach in Findings 2 and 4 
acknowledges the need for permanent disposal, and for the generations 
that benefit from nuclear energy to bear the responsibility for 
providing an ultimate disposal for the resulting waste. The 
Commission's removal of a target date from Finding 2 does not mean that 
the Commission has approved indefinite storage; Finding 4 still 
contains a time frame for the length of post-licensed life storage. But 
a time frame in Finding 4 does not mean that the Commission has to 
include a target date in Finding 2; instead, the Commission has adopted 
a revised Finding 2 that expresses the Commission's reasonable 
assurance that repository capacity will be available when necessary. 
This Finding does not contemplate indefinite storage of SNF and HLW; 
Finding 4 has not been changed, and only considers ``at least 60 
years'' of storage beyond the licensed life for operation, including a 
license renewal period, and the analysis supporting Finding 2 considers 
the time needed to construct a repository.
    The Commission has removed the target date from Finding 2 because 
recent events have demonstrated that the Commission is unable to 
predict with confidence when a successful program to construct a 
repository will start. Instead, the Commission has reasonable assurance 
that sufficient repository capacity will be available when necessary, 
which means that repository capacity will be available before there are 
safety or environmental issues associated with the SNF and HLW that 
would require the material to be removed from storage and placed in a 
disposal facility. As made clear in the analysis that supports Finding 
2, the Commission continues to have confidence that a repository can be 
constructed within 25-35 years of a Federal decision to do so, which is 
much shorter than the time frame considered in revised Finding 4. 
Further, if it becomes clear that a repository or some other disposal 
solution will not be available by the end of 60 years after licensed 
life for operation, the Commission will revisit and reassess its Waste 
Confidence Decision and Rule if a revision has not already occurred for 
other reasons.
    As the Attorneys General, as well as other commenters, noted, the 
proposed rule was phrased differently from the proposed revision of 
Finding 2; the proposed rule made a generic determination of safe 
storage of SNF ``until a disposal facility can reasonably be expected 
to be available'' whereas proposed Finding 2 predicted repository 
availability ``within 50-60 years beyond the licensed life for 
operation,'' and proposed Finding 4 made a finding of reasonable 
assurance of safe storage of SNF ``for at least 60 years beyond the 
licensed life for operation.''
    The Commission did not intend to cause confusion by adopting 
different language in the Findings and the rule. The basis for the rule 
is identical to the basis for the findings, no matter how the rule 
itself is phrased; the Commission has therefore decided to adopt 
similar language for Findings 2 and 4 and the rule. As discussed above, 
the Commission has reconsidered Finding 2 and, in recognition of recent 
developments, has concluded that it would be inappropriate to include a 
target date in the Finding. The Commission has therefore made a 
conforming change to the rule to incorporate the revised language from 
Finding 2.
    Further, as discussed in the proposed rule, the Commission has 
updated the rule language to include the time frame for safe and 
environmentally sound storage from Finding 4. The final rule now limits 
the generic determination regarding safe and environmentally sound 
storage to ``at least 60 years beyond the licensed life for operation 
(which may include the term of a revised or renewed license).'' Section 
51.23(a) is also revised to reinsert a version of the second sentence 
in the present rule that was excluded from the proposed rule. This 
statement was added to make it clear that Finding 4 does not 
contemplate indefinite storage and to underscore the fact that the 
Commission has confidence that mined geologic repository capacity will 
be available when necessary.
    Comment 10: TSEP claims that the survey of various international 
HLW disposal programs that the NRC provided to review the issue of 
social and political acceptability of a repository shows that there can 
be no confidence that the necessary social and political conditions 
exist in the United States to provide any assurance that a repository 
can be developed in any foreseeable time frame. TSEP also believes that 
the NRC's survey is inaccurate and essentially incomplete because it 
omits the country that is often held up as being exemplary for nuclear 
power--France.
    NRC Response: The NRC rejects the commenter's assertion that the 
NRC's examination of international experience shows that there can be 
no confidence that a repository will be developed in the United States 
in any foreseeable time frame. The NRC's discussion of the HLW programs 
of other countries was included to show that those countries have 
programmed into their plans various methodologies for securing social 
and political acceptance of a repository. This has been a trial-and-
error process that has led to both failures and successes. The 
processes, especially in Finland and Sweden, show that this focus on 
deliberate attempts to gain public support can lead to success given a 
sufficiently inclusive process and enough time.
    The commenter believes that the NRC's survey is partly inaccurate 
because the NRC incorrectly implies that the United Kingdom (UK) ended 
a program for developing a repository for HLW and SNF in 1997 when, in 
fact, the program was for disposal of intermediate-level waste (ILW). 
The NRC agrees with the commenter that one sentence describing the UK 
program is misleading. This is because of a typographical error where 
``HLW'' was inserted instead of ``ILW''. This error is corrected in 
this update.
    With respect to the omission of France, the NRC did not seek to 
provide an exhaustive survey or complete history of all foreign 
repository programs. The NRC examined a number of international 
examples for the

[[Page 81049]]

purpose of reasonably estimating the minimum time needed to ``develop * 
* * societal and political acceptance in concert with essential 
technical, safety and security assurances.'' The NRC noted that France 
was among ten nations that have established target dates (France 
expects that its repository will commence operation in 2025.), and 
among seven nations, of those ten, that plan disposal of reprocessed 
SNF and HLW (73 FR 59558; October 9, 2008). A brief examination of the 
progress of France's waste disposal program suggests a time frame that 
is consistent with a range of 25-35 years for achieving societal and 
political acceptability of a repository. Initial efforts in France in 
the 1980s failed to identify potential repository sites using solely 
technical criteria. Failure of these attempts led to the passage of 
nuclear waste legislation that prescribed a period of 15 years of 
research. Reports on generic disposal options in clay and granite media 
were prepared and reviewed by the safety authorities in 2005. In 2006, 
conclusions from the public debate on disposal options, held in 2005, 
were published. Later that year, the French Parliament passed new 
legislation designating a single site for deep geologic disposal of 
intermediate and HLW. This facility, to be located in the Bure region 
of northeastern France, is scheduled to open in 2025, some 34 years 
after passage of the original Nuclear Waste Law of 1991.
    Comment 11: Several commenters believe that the history of the U.S. 
repository program demonstrates that there should be no assurance that 
the political and social acceptance needed to support development of a 
repository in the time frame envisioned in Finding 2 will be realized.
    NRC Response: The Commission acknowledges the difficulties that the 
U.S. HLW program has encountered over the years from the failed attempt 
to locate a repository in a salt mine in Lyons, Kansas, through the 
strong and continuous opposition to the proposed repository at YM. 
Nevertheless, the commenters overlook a number of key developments that 
support the Commission's confidence that a repository will be available 
when necessary.
    First, the comments assume that any repository program must start 
over from the beginning. But any new repository program would build 
upon the lessons learned from the YM and other repository programs. 
Other countries are working toward development of a repository, and 
some have settled upon a process that is designed to deal with many of 
the societal and political issues that have delayed the U.S. program. 
See Finding 2 below.
    Second, the Secretary of Energy established the Blue Ribbon 
Commission on America's Nuclear Future. Department of Energy, Blue 
Ribbon Commission on America's Nuclear Future, Advisory Committee 
Charter (2010), available at http://brc.gov/pdfFiles/BRC_Charter.pdf. 
The Blue Ribbon Commission ``will provide advice, evaluate 
alternatives, and make recommendations for a new plan to address'' a 
number of issues associated with the back-end of the nuclear fuel 
cycle. Id. Specifically, the Blue Ribbon Commission will evaluate the 
existing fuel cycle technologies and research and development cycles; 
look at options for the safe storage of SNF while final disposal 
pathways are prepared; look at options for the permanent disposal of 
SNF and HLW; evaluate options to make legal and commercial arrangements 
for the management of SNF and HLW; prepare flexible, adaptive, and 
responsive options for decision-making processes related to the 
disposal and management of SNF and HLW; look at options to ensure that 
any decisions are open and transparent, with broad participation; 
evaluate the possible need for additional legislation or amendments to 
existing laws; and any additional issues that the Secretary of Energy 
deems appropriate. Id.
    The NWPA still mandates by law a national repository program, and 
decades of scientific studies support the use of a repository for 
disposal of HLW and SNF. Federal responsibility for siting and building 
a repository remains controlling national policy. Finding 2 is a 
prediction that a repository will be available when the societal and 
political obstacles to a repository are overcome and sufficient 
resources are dedicated to the siting, licensing, and construction of a 
repository. It necessarily follows from the Waste Confidence Decision 
that the Commission has reasonable assurance that sufficient repository 
capacity will be available before there are safety or environmental 
issues associated with the SNF and HLW that would require the material 
to be removed from storage and placed in a disposal facility. If this 
were not the case, the Commission would be unable to express its 
reasonable assurance in the continued safe, secure, and environmentally 
sound storage of SNF and HLW.
    Finally, the Commission reiterates Finding 1, which states that the 
Commission finds reasonable assurance that safe disposal of HLW and SNF 
in a mined geologic repository is technically feasible. This finding 
has remained unchanged since 1984. The more difficult problem 
challenging a repository program is achieving political and social 
acceptance, but the Commission has confidence that this problem can be 
solved. By applying the lessons learned in the YM program and in the 
different methodologies for achieving acceptance used in international 
HLW programs, the Commission remains confident that these issues 
impeding the construction of a repository can be resolved.
    Comment 12: One commenter worried that ``a decision in favor of 
this proposed rule change could prejudice a licensing decision in favor 
of the Yucca Mountain project simply because it would announce 
confidence in a waste site and that is the only one there.'' The 
commenter also fears that this rulemaking could bias a decision to lift 
or eliminate the statutory capacity limit on YM, which would be 
necessary for the repository to accept SNF from new reactors. Further, 
the commenter believes that if the YM project fails, there will be no 
basis for confidence that a waste site will be available in the future.
    NRC Response: The Commission's reaffirmation of Finding 1--that 
disposal of HLW and SNF is technically feasible--and its revision of 
Finding 2, which states confidence that repository capacity will be 
available when necessary, are not tied to any particular site. In fact, 
the Commission's proposal assumed that YM would not go forward and 
become available as a repository. Moreover, the Waste Confidence 
Decision and Rule have no legal effect in the YM licensing proceeding. 
See Nevada v. NRC, No. 05-1350, 199 Fed. Appx. 1 (DC Cir. 2006). 
Therefore, the NRC does not believe that adopting these findings will 
prejudice a licensing decision on Yucca Mountain. In a 2008 report DOE 
predicted that by 2010 SNF would exceed the 70,000 metric tons of heavy 
metal (MTHM) statutory limit for YM, and that if all existing reactors 
continue to operate for a total of 60 years through license renewals, 
SNF will exceed 130,000 MTHM. See The Report to the President and the 
Congress by the Secretary of Energy on the Need for a Second 
Repository, DOE/RW-0595, December, 2008. Thus, even if YM were to 
obtain NRC approval and be built, the amount of SNF from current 
reactors alone would require a change in the statutory limit or a 
second repository. Finally, as stated above, the proposed revision of 
Finding 2 assumed that YM would not go forward. The NRC's basis for 
continued confidence that a repository will be available when necessary 
is explained in its response to

[[Page 81050]]

Comment 11 and its discussion of Finding 2.
    Comment 13: The State of Nevada favored the Commission's 
alternative approach to Finding 2, but also suggested that 10 CFR 
51.23(a) be reworded as follows:

    The Commission has made a generic determination that there is 
reasonable assurance all licensed reactor spent fuel will be removed 
from storage sites to some acceptable disposal site well before 
storage causes any significant safety or environmental impacts. This 
generic finding does not apply to a reactor or storage site if the 
Commission has found, in the 10 CFR Part 50, Part 52, Part 54 or 
Part 72 specific licensing proceeding, that storage of spent fuel 
during the term requested in the license application will cause 
significant safety or environmental impacts.

    Nevada explains that the last sentence is added to be consistent 
with 10 CFR 51.23(c), which provides that 10 CFR 51.23(a) does not 
alter any requirement to consider environmental impacts during the 
requested license terms in specific reactor or spent fuel storage 
license cases. Nevada states that ``NRC should not prejudge this review 
of potential safety or environmental impacts from storage during the 
requested license term in any pending or future licensing proceeding.'' 
Nevada also states that in the event the Commission adopts Finding 2 as 
proposed, ``it needs to clear up the ambiguity inherent in the 
reference to the 50-60 year time period. Presumably the Commission 
means it expects a repository within 60 years.''
    NRC Response: For the reasons explained in response to Comment 9, 
the Commission has decided to adopt a revised Finding 2 that states its 
confidence in the availability of a repository ``when necessary.'' 10 
CFR 51.23(c) points out that the generic determination in 10 CFR 
51.23(a) only applies to the period following the term of the reactor 
operating license, reactor combined license or amendment, or initial 
ISFSI license or amendment in proceedings held under 10 CFR Parts 50, 
52, 54 and 72. Nevada is concerned that in a case where the 
environmental impacts during the term of the license were judged to be 
significant, there would be reason to doubt the applicability of a 
generic determination that the impacts occurring after the requested 
license term would not be significant and so has proposed inclusion of 
a second sentence in 10 CFR 51.23(a). The Commission already has a 
rule, 10 CFR 2.335, that allows a party to an adjudicatory proceeding 
to seek a waiver or exception to a rule where its application would not 
serve the purposes for which the rule was adopted. Thus, the Commission 
declines to adopt this additional sentence.

Issue 6: Whether the Commission Has an Adequate Basis To Reaffirm 
Finding 3

    Comment 14: One commenter stated that the NRC appears to ignore the 
reality that available legal and corporate strategies exist that can 
provide for the transfer of NPPs and ISFSIs, and the SNF itself, to 
unfunded separate limited liability companies that can easily abandon 
SNF at existing sites once the economic value of the generating plants 
is exhausted.
    NRC Response: The transfer of a license for a NPP is governed by 10 
CFR 50.80. An applicant for transfer of its license must provide the 
same information on financial and technical qualifications for the 
proposed transferee as is required for the initial license. Therefore, 
the entity intended to receive the license must demonstrate its ability 
to meet the financial obligations of the license. Both general and 
specifically licensed ISFSIs are required to demonstrate financial 
qualifications before they are issued a license. The requirements for 
general licensees are in 10 CFR part 50, while the financial 
qualifications for specifically licensed ISFSIs are in 10 CFR part 72.
    A general license is issued to store spent fuel at an ISFSI ``[a]t 
power reactor sites to persons authorized to possess or operate nuclear 
power reactors under 10 CFR part 50 or 10 CFR part 52.'' 10 CFR 72.210. 
Under 10 CFR 50.54(bb), NPP licensees must have a program to manage and 
provide funding for the management of spent fuel following permanent 
cessation of operations until title to and possession of the fuel is 
transferred to the Secretary of Energy. As required in 10 CFR 72.30(c), 
all general licensees must provide financial assurance for sufficient 
funds to decommission the ISFSI. In addition, general licensees who 
have decommissioned their site, with the exception of the ISFSI and 
support facilities, must demonstrate that they have sufficient funds to 
decommission the ISFSI after the spent fuel is permanently transported 
offsite.
    Applicants for a specific license to store spent fuel under 10 CFR 
part 72 are required to demonstrate their financial qualifications. See 
10 CFR 72.22(e). To meet the financial requirements, the applicant must 
show that it either possesses the necessary funds or has reasonable 
assurance of obtaining the necessary funds to cover ISFSI construction, 
operating, and decommissioning costs. In addition, a specific licensee 
that wants to transfer its license must submit an application that 
demonstrates that the proposed transferee meets the same financial 
qualifications as the initial license. See 10 CFR 72.50. Most specific 
licensees are financially backed by a utility with either an operating 
or shutdown NPP and are required under 10 CFR 50.54(bb) to have 
sufficient resources for spent fuel management after cessation of 
operations. Other specific licensees, not located at a NPP site, that 
are currently storing spent fuel are backed either by a large 
corporation, such as General Electric (the GE Morris ISFSI), or by the 
DOE, in the case of the Three Mile Island Unit 2, and Ft. Saint Vrain 
ISFSIs.

Issue 7: Whether the Commission Has an Adequate Basis for Finding That 
SNF Generated in Any Reactor Can Be Stored Safely and Securely and 
Without Significant Environmental Impact for at Least 60 Years (Finding 
4)

    Comment 15: Several commenters posited that the NRC does not have 
an adequate technical basis for finding reasonable assurance that SNF 
can be stored safely and without significant environmental impact 
because they believe that high-density spent fuel storage pools (SFPs) 
are vulnerable to catastrophic fires that may be caused by accidents or 
intentional attacks. These commenters do not believe that the NRC has 
properly assessed this risk. TSEP submitted a report, ``Environmental 
Impacts of Storing Spent Nuclear Fuel and High-Level Waste from 
Commercial Nuclear Reactors: A Critique of NRC's Waste Confidence 
Decision and Environmental Impact Determination,'' prepared by Dr. 
Gordon R. Thompson, the Executive Director of the Institute for 
Resource and Security Studies (Thompson Report), which describes the 
potential risks associated with a fire in a SFP following a loss of 
water from the pool. The Thompson Report takes the view that the NRC 
documents published on the risk of SFP fires are inadequate and objects 
to the fact that some of the more recent documents rely on ``secret 
studies,'' which cannot be verified by the public. The Attorney General 
of California requests that the NRC reconsider the information on the 
risks of SFP fires that California and Massachusetts submitted with 
their rulemaking petitions, which the NRC denied. See The Attorney 
General of Commonwealth of Massachusetts, The Attorney General of 
California; Denial of Petitions for Rulemaking (73 FR 46204; August 8, 
2008) (MA and CA Petitions).

[[Page 81051]]

    Dr. Thompson also questioned the analyses and assumptions that 
support the staff's conclusions regarding terrorist attacks on ISFSIs. 
Dr. Thompson defined four types of potential attack scenarios and noted 
that the staff's previous analyses, specifically the Diablo Canyon EA, 
focus only on Type III scenarios and ignore the far less dramatic, but 
far more effective, Type IV releases. Thompson Report at 47-48. Type I 
releases are those caused by the vaporization of the ISFSI by a nuclear 
explosion and are not considered by Dr. Thompson in his analysis. 
Thompson Report at Table 7-8. Type II releases deal with an attack by 
aerial bombing, artillery, rockets, etc., resulting in rupture of the 
ISFSI and large dispersal of the contents of the cask. Id. Type III 
events are similar to Type II, but involve small dispersal of the 
contents of the cask, and are caused by vehicle bombs, impact by 
commercial aircraft, or perforation by a shaped charge. Id. Finally, 
Type IV events are caused by missiles with tandem warheads, close-up 
use of shaped charges and incendiary devices, or removal of the 
overpack lid. Id. This type of attack results in scattering and plume 
formation similar to that of a Type III event, but the release of 
material far exceeds that of a Type III event. Id. Dr. Thompson claims 
that the staff's analysis does not consider the environmental impacts 
of a Type IV attack on an ISFSI. Id. at 48.
    NRC Response: The NRC's 1990 Waste Confidence Decision described 
the studies of the catastrophic loss of reactor SFP water possibly 
resulting in a fuel fire in a dry pool that the NRC staff had 
undertaken prior to that time (55 FR 38511; September 18, 1990). The 
proposed update further details the considerable work that the NRC has 
done in evaluating the safety of SFP storage, including the scenario of 
a SFP fire, and notes that following the terrorist attacks of September 
11, 2001, the NRC undertook a complete reexamination of SFP safety and 
security issues (73 FR 59564-59565; October 9, 2008).\10\ The proposed 
update discusses, in particular, the Commission's careful consideration 
of this issue in responding to the MA and CA Petitions. The petitions 
asserted that spent fuel stored in high-density SFPs is more vulnerable 
to a zirconium fire than the NRC had concluded in the GEIS for renewal 
of NPP licenses. The petitioner raised the possibility of a successful 
terrorist attack as increasing the probability of a SFP zirconium fire. 
The petitions claimed that they were proffering ``new and significant 
information'' on this issue, including a study by Dr. Thompson, see 
Risks and Risk-Reducing Options Associated with Pool Storage of Spent 
Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants, 
May 25, 2006 (Thompson 2006 Report), and a report by the National 
Academies Committee on the Safety and Security of Commercial Spent 
Nuclear Fuel Storage, see Safety and Security of Commercial Spent 
Nuclear Fuel Storage (National Academies Press: 2006) (NAS Report).
---------------------------------------------------------------------------

    \10\ NRC's reexamination of safety and security issues included 
consideration of reports issued by Sandia National Laboratories and 
the National Academy of Sciences, which are classified, SGI, or 
official-use-only security-related information, and thus cannot be 
released to the public; public versions of these reports are 
available. See response to comment 2 above.
---------------------------------------------------------------------------

    The Commission considered all of this information and concluded 
that ``[g]iven the physical robustness of SFPs, the physical security 
measures, and SFP mitigation measures, and based upon NRC site 
evaluations of every SFP in the United States * * * the risk of an SFP 
zirconium fire, whether caused by an accident or a terrorist attack, is 
very low'' (73 FR 46208; October 9, 2008). Later, the United States 
Court of Appeals for the Second Circuit rejected a challenge to the 
Commission's denial of the CA and MA petitions. New York v. NRC, 589 
F.3d 551 (2d Cir. 2009). The court said that the ``relevant studies 
cited by the NRC in this case constitute a sufficient `basis in fact' 
for its conclusion that the overall risk is low.'' Id. at 555.
    The commenters are dissatisfied with the NRC's analysis of this 
issue, but the only new information they have provided is Dr. 
Thompson's 2009 Report. The NRC has reviewed the 2009 Report and has 
found no information not previously considered by the NRC.
    The Attorney General of California contends that the NRC should 
have considered the information supplied by the petitioners with the MA 
and CA Petition. The NRC did consider this information and explained 
that the information was neither new nor significant and would not lead 
to an environmental impact finding different from that set forth in the 
GEIS for license renewal. Dr. Thompson's contention that the NRC did 
not consider credible threats to ISFSIs that would cause significant 
environmental impacts has already been addressed by the Commission in 
Pacific Gas and Electric Co. (Diablo Canyon Independent Spent Fuel 
Storage Installation), 67 NRC 1, CLI-08-01 (2008). In that case, the 
San Luis Obispo Mothers for Peace submitted an affidavit and report by 
Dr. Thompson, which argued that the NRC staff should have considered, 
but failed to consider, ``scenarios with much larger releases of 
radiation [that] are also plausible and should have been considered. * 
* * [for] example [a scenario] * * * where the penetrating device is 
accompanied by an incendiary component that ignites the zirconium 
cladding of the spent fuel inside the storage cask, causing a much 
larger release of radioactive material than posited in scenarios where 
the cases sustain minimal damage.'' Id. at 19. The Commission 
considered this argument and found that ``[a]djudicating alternate 
terrorist scenarios is impracticable. The range of conceivable (albeit 
highly unlikely) terrorist scenarios is essentially limitless, confined 
only by the limits of human ingenuity.'' Id. at 20. Further, the 
Commission found that the staff's approach to its terrorism analysis, 
``grounded in the NRC Staff's access to classified threat assessment 
information, is reasonable on its face.'' Id. In his comment, Dr. 
Thompson attempts to revisit the Diablo Canyon proceeding by claiming 
that ``the Staff limited its examination to Type III releases.'' 
Thompson Report at 48. Not only has this issue already been addressed 
by the Commission, but some of the specifics of Dr. Thompson's ``Type 
IV'' releases are discussed and dismissed by the Commission. Thompson 
Report Table 7-8; Diablo Canyon at 19-20.
    Comment 16: A number of commenters urged the Commission to consider 
the increasing frequency of spent fuel pool leaks as evidence calling 
into question the NRC's confidence in the safety of SNF storage in the 
normal operation of spent fuel pools. Comments submitted by the 
Attorneys General of the States of New York and Vermont, a supplemental 
comment from the Attorney General of New York, and the Commonwealth of 
Massachusetts described leaks of tritium at reactor sites around the 
country. They believe that increased onsite storage increases the 
opportunity for human error resulting in unauthorized releases. They 
are concerned about the lack of monitoring requirements or guidelines 
for these spent fuel leaks.
    NRC Response: The NRC's proposed update of the Waste Confidence 
Decision acknowledged incidents of groundwater contamination 
originating from spent fuel pool leaks. The Liquid Radioactive Releases 
Lessons Learned Task Force, created in response to these incidents, 
reported that near-term health impacts resulting from the leaking spent 
fuel pools that the NRC had examined were negligible but also that 
measures should be taken to avoid leaks in the

[[Page 81052]]

future. The Task Force provided 26 specific recommendations for 
improvements to The NRC's regulatory programs regarding unplanned 
radioactive liquid releases. See Report Nos. 05000003/2007010 and 
05000247/2007010, May 13, 2008 (ADAMS Accession Number ML081340425), as 
well as ``Liquid Release Task Force Recommendations Implementation 
Status as of February 26, 2008,'' (ADAMS Accession Number ML073230982).
    The NRC has also revised several guidance documents as well as an 
Inspection Procedure to address issues associated with leaking spent 
fuel pools. The NRC will continue to follow this issue and the NRC's 
regulatory oversight will continue to ensure safety and appropriate 
environmental protection. Thus, the Commission remains confident that 
storage of SNF in pools will not have any significant environmental 
impacts.
    Comment 17: A number of commenters expressed the view that the 
NRC's updates to the Waste Confidence Decision and Rule do not comply 
with the holding of the Ninth Circuit Court of Appeals in San Luis 
Obispo Mothers for Peace v. NRC, 449 F. 3d 1016 (9th Cir. 2006), cert. 
denied, 127 S. Ct. 1124 (2007), that environmental analysis under NEPA 
requires an examination of the environmental impacts that would result 
from an act of terrorism against an ISFSI because an attack is 
reasonably foreseeable and not remote and speculative as the NRC had 
argued before the court.
    NRC Response: Finding 4 considers the potential risks of accidents 
and acts of sabotage at spent fuel storage facilities. In 1984 and 
1990, the NRC provided some discussion of the reasons why it believed 
that the possibility of a major accident or sabotage with offsite 
radiological impacts at a spent fuel storage facility was extremely 
remote. In the proposed update to the Waste Confidence Decision, the 
Commission gave considerable attention to the issue of terrorism and 
spent fuel management (See 73 FR 59567-59568; October 9, 2008). The 
Commission concluded that ``[t]oday spent fuel is better protected than 
ever. The results of security assessments, existing security 
regulations, and the additional protective and mitigative measures 
imposed since September 11, 2001, provide high assurance that the spent 
fuel in both spent fuel pools and in dry storage casks will be 
adequately protected.'' Id.
    Some commenters believe that the NRC's environmental analysis of 
the security of spent fuel storage facilities is deficient because it 
does not include consideration of the environmental impacts of a 
successful terrorist attack. The commenters recognize that the 
Commission continues to disagree with the Ninth Circuit and believes 
that, outside of the Ninth Circuit, the environmental effects of a 
terrorist attack do not need to be considered in its NEPA analyses. 
Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-
07-08, 65 NRC 124 (2007). Recently, the Third Circuit U.S. Court of 
Appeals upheld the NRC's view that terrorist attacks are too far 
removed from the natural or expected consequences of agency action to 
require an environmental impact analysis. New Jersey Department of 
Environmental Protection v. U.S. Nuclear Regulatory Commission, 561 
F.3d 132 (3d Cir. 2009). The Third Circuit stated:

    In holding that there is no ``reasonably close causal 
relationship'' between a relicensing proceeding and the 
environmental effects of an aircraft attack on the licensed 
facility, we depart from the reasoning of the Ninth Circuit * * *. 
The Mothers for Peace court held that, given ``the policy goals of 
NEPA and the rule of reasonableness that governs its application, 
the possibility of terrorist attack is not so `remote and highly 
speculative' as to be beyond NEPA's requirements.'' * * *. We note, 
initially, that Mothers for Peace is distinguishable on the ground 
that it involved the proposed construction of a new facility--a 
change to the physical environment arguably with a closer causal 
relationship to a potential terrorist attack than the mere 
relicensing of an existing facility. [hellip]. More centrally, 
however, we disagree with the rejection of the `reasonably close 
causal relationship' test set forth by the Supreme Court and hold 
that this standard remains the law in this Circuit. We also note 
that no other circuit has required a NEPA analysis of the 
environmental impact of a hypothetical terrorist attack. Id. at 142 
(citations and footnote omitted).

    But even though, outside of the Ninth Circuit, the NRC continues to 
adhere to its traditional view that the environmental impacts of a 
terrorist attack do not need to be considered outside of the Ninth 
Circuit, the environmental assessment for this update and rule 
amendment includes a discussion of terrorism in the discussion of the 
revision to Finding 4 that the NRC believes satisfies the Ninth 
Circuit's holding in Mothers for Peace v. NRC, as the decision 
explicitly left to agency discretion the precise manner in which the 
NRC undertakes a NEPA-terrorism review. See Pacific Gas and Electric 
Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage 
Installation), CLI-08-01, 67 NRC 1 (2008), petition for judicial review 
pending, No. 09-1268 (9th Cir.).
    Comment 18: TSEP and the Attorney General of New York (in a 
supplemental comment) point out that the NRC has treated the risk of a 
catastrophic fuel fire caused by an attack or an accident that leads to 
partial or complete drainage of a high-density SFP as a site-specific 
issue, imposing orders requiring NPPs to enhance security and improve 
their capabilities to respond to terrorist attack. Some of these orders 
required licensees to develop specific guidance and strategies to 
maintain or restore spent fuel pool cooling capabilities (See 73 FR 
59567; October 9, 2008). TSEP and the Attorney General believe that 
this demonstrates that the NRC considers the risk of a pool fire to be 
specific to each nuclear plant and that site-specific measures to 
reduce these risks to an acceptable level must be taken at each plant. 
TSEP and the Attorney General believe that this is inconsistent with 
the NRC's reliance on its generic determination in 10 CFR 51.23(a) to 
deny hearing requests regarding the safety and environmental impacts of 
spent fuel storage, on contentions that are within the scope of the 
generic determination, in individual licensing cases. Because the NRC 
has (allegedly) acknowledged that its findings regarding the safety and 
security of spent fuel storage are site-specific and not generic in 
nature, TSEP and the Attorney General believe that the NRC should 
withdraw its generic finding.
    NRC Response: After the terrorist attacks of September 11, 2001, 
the Commission issued orders to NPP and ISFSI licensees requiring 
enhanced protective measures under its Atomic Energy Act authority to 
``establish by rule, regulation, or order, such standards and 
instructions to govern the possession and use of [nuclear materials] as 
the Commission may deem necessary or desirable to promote the common 
defense and security or to protect health or to minimize danger to life 
or property. * * *'' 42 U.S.C. 2201 (2006). These orders were site-
specific and required each licensee to buttress its security 
arrangements to achieve the revised standards set by the Commission. 
Additionally, the orders were used as an expedient method to impose new 
security requirements on licensees. Subsequently, some of these new 
requirements and other additional requirements were codified in 
rulemaking (See 72 FR 56287; October 3, 2007, 73 FR 19443; April 10, 
2008, 73 FR 51378; September 3, 2008, 73 FR 63546; October 24, 2008; 74 
FR 13926; March 27, 2009, 74 FR 17115; April 14,

[[Page 81053]]

2009). The NRC's determination that SNF can be stored safely and 
without significant environmental impacts beyond the licensed life for 
operation of the reactor for at least 60 years is a generic 
determination that satisfies both the NRC's NEPA responsibilities and 
evaluates the safety of the ongoing storage of SNF and HLW. The 
determination considers reasonably foreseeable risks that could 
threaten the safety of SNF storage and the environmental impacts of 
these risks. There is no inconsistency between the NRC's orders 
enhancing security at each plant and its generic determination that SNF 
can be safely stored because the requirements imposed by the orders and 
rulemakings help to ensure the safety and security of the SNF. As the 
Third Circuit said in its decision upholding the NRC's determination 
that NEPA did not require that the NRC consider the environmental 
effects of an aircraft attack on a licensed facility, the fact that the 
NRC does not have a particular obligation under NEPA does not mean that 
the NRC ``has no obligation to consider how to strengthen nuclear 
facilities to prevent and minimize the effects of a terrorist attack; 
indeed, the AEA gives broad discretion over the safety and security of 
nuclear facilities.'' New Jersey Department of Environmental Protection 
v. U.S. Nuclear Regulatory Commission, 561 F.3d 132, 142 fn 9 (3d Cir. 
2009). As discussed in the Response to Comment 17, the NRC's analysis 
satisfies the Ninth Circuit's holding in San Luis Obispo Mothers for 
Peace.
    Comment 19: A commenter stated that the NRC's implication that 
above-ground storage may be safely conducted for 60 years beyond the 
operating license of a reactor does not seem to account for probably 
rapidly changing climactic conditions in the next few decades. This is 
very critical since most reactor sites are located near large bodies of 
water.
    NRC Response: The earliest impact to spent fuel storage casks from 
climate change is not from submergence of structures by rising ocean 
levels, but rather from an increased risk of potential flooding from 
storm surge and high winds caused by extreme weather events. Current 
NRC regulations for design characteristics specifically address severe 
weather events. Before certification or licensing of a dry storage cask 
or ISFSI, the NRC requires that the vendor or licensee include design 
parameters on the ability of the storage and spent fuel storage 
facilities to withstand severe weather conditions such as hurricanes, 
tornadoes, and floods.
    The NRC's regulations, 10 CFR 72.236 (for casks) and 72.122 (for 
facilities), require that applications for a Certificate of Compliance 
(COC) for a dry storage cask and a license to store spent fuel in an 
ISFSI evaluate the effects of a design basis flood on the facility. The 
evaluation of a design basis flood includes both static pressure from 
standing water and the force from a uniform flood-current. In addition, 
all storage casks approved for use with the general license provisions 
in 10 CFR part 72 have been evaluated for static pressure and uniform 
flood-current in the same manner as those for a specific licensee. The 
NRC has published regulatory guidance that describes acceptable 
approaches to assessing these impacts; further, the staff is addressing 
climate change in updates to its guidance. Based on the NRC's 
activities related to climate change, and the relatively slow rate of 
this change, the NRC is confident that any regulatory action that may 
be necessary will be taken in a timely manner to ensure the safety of 
all nuclear facilities regulated by the NRC.
    Based on the models discussed in the NAS study (Potential Impact of 
Climate Change on U.S. Transportation: Special Report 290), none of the 
U.S. NPPs (operational or decommissioned) will be under water or 
threatened by water levels by 2050. The climate change models used in 
the NAS study are based on work by the Intergovernmental Panel on 
Climate Change. Climate changes over the next century are expected to 
result in a sea-level rise of approximately 0.8 meters; see J.A. Church 
et al., Climate Change 2001: Impacts, Adaptation, and Vulnerability, 
Intergovernmental Panel on Climate Change, 642 (2001). Recently, the 
Intergovernmental Panel on Climate Change published a report confirming 
an accelerated sea-level rise in North America and concluding there 
will be further accelerated sea-level rise; the report found that the 
global mean sea-level is projected to rise by 0.35  0.12 
meters from the 1980 to 1999 period to the 2090 to 2099 period (http://www.ipcc.ch/ipccreports/ar4-wg2.htm). This conclusion is supported by 
the findings of the U.S. Global Change Research Program report 
published in 2009 (http://downloads.globalchange.gov/usimpacts/pdfs/climate-impacts-report.pdf). Based on these reports, sea-level rise is 
controlled by complex processes, and estimated to rise less than 1 
meter by 2100. In addition to sea-level rise, NRC facilities may be 
affected by increased storm surges, erosion, shoreline retreat, and 
inland flooding. Impacts to coastal areas may be further exacerbated by 
the land subsiding, as is currently observed in some central Gulf Coast 
areas. NRC facilities, including ISFSIs, are designed to be robust. The 
facilities are evaluated to ensure that performance of their safety 
systems, structures, and components is maintained during flooding 
events, and are monitored when in use. The lowest grade above sea-level 
of concern for an NRC licensed facility is currently about 4.3 m (14 
feet). In the event of climate change induced sea-level rise the NRC 
regulations require licensees to implement corrective actions to 
identify and correct or mitigate conditions adverse to safety.
    Comment 20: A commenter stated that two events--the July 16, 2007, 
earthquake in Niigata Province, Japan, and an April 2008 earthquake in 
Michigan--and an August 2008 study, which discusses a newly-discovered 
fault line that could significantly increase estimates of the 
probability of an earthquake in New York City, undermine confidence in 
the safety of spent fuel storage. Further, the commenter believes that 
given the differing seismology of various plants around the country, a 
generic determination that SNF can be stored safely without significant 
environmental impacts for long periods of time is inappropriate.
    NRC Response:
    Japan Earthquake of July 2007:
    Staff reviewed a report on the 2007 Japan Earthquake by the 
International Atomic Energy Agency (IAEA) in December 2008. See 2d 
Follow-up IAEA Mission in Relation to the Findings and Lessons Learned 
from the 16 July 2007 Earthquake at Kashiwazaki-Kariwa NPP, The 
Niigataken Chuetsu-oki Earthquake, Tokyo and Kashiwazaki-Kariwa NPP, 
Japan, 1-5 December 2008. The report was the third in a series issued 
by an IAEA-led team of international experts that completed the mission 
in December 2008. According to this report, ``the safe performance of 
the Kashiwazaki-Kariwa nuclear power plant during and after the 
earthquake that hit Japan's Niigata and Nagano prefectures on 16 July 
2007 has been confirmed.'' The head of the IAEA's Division of 
Installation Safety, and the leader of the mission, also stated that 
``[t]he four reactors in operation at the time in the seven unit 
complex--the world's largest nuclear power plant--shut down safely and 
there was a very small radioactive release well below public health and 
environmental safety limits.'' The lessons learned from the results of 
the plant integrity evaluation

[[Page 81054]]

process will be reviewed by the NRC and may be incorporated, as 
necessary, to improve the approaches for design and evaluation criteria 
currently used for NPPs in the United States.
    The Michigan Earthquake in April 2008:
    NRC Staff reviewed NRC's Preliminary Notification of Event or 
Unusual Occurrence, PNO-III-08-004A, April 18, 2008 (ADAMS Accession 
Number ML081090639) on the April 2008 earthquake in Michigan. This 
Notification revealed that licensee personnel and NRC inspectors at the 
D.C. Cook and Palisades NPPs, both of which experienced onsite seismic 
activity, conducted independent equipment walkdowns after the initial 
earthquake and aftershock, and identified no issues. In addition, 
licensee personnel and NRC inspectors conducted equipment walkdowns at 
all operating power reactors that felt seismic activity and also 
identified no issues. The NRC staff concluded that the earthquake will 
have little overall influence on the postulated seismic hazard 
estimates at ISFSIs located in the CEUS.
    The seismic design requirements for spent fuel pools are the same 
as for NPPs; these events do not undermine confidence in the safety of 
storage of spent fuel in spent fuel pools. With respect to dry storage, 
under 10 CFR 72.210, a general license for the storage of spent fuel in 
an ISFSI is granted to all holders of a license issued under 10 CFR 
Part 50 to possess or operate a NPP. The conditions of this general 
license are given in 10 CFR 72.212. The conditions of the license 
require a general licensee to perform written evaluations prior to use 
that establish that: (a) Conditions set forth in the Certificate of 
Compliance (CoC) have been met; (b) cask storage pads and areas have 
been designed to adequately support the static and dynamic loads of the 
stored casks, considering potential amplification of earthquakes 
through soil-structure interaction, and soil liquefaction potential or 
other soil instability due to vibratory ground motion; and (c) the 
requirements of 10 CFR 72.104 (dose limitations for normal operation 
and anticipated occurrences) have been met. Additionally, the ISFSI 
foundation analysis must include soil-structure interaction and must 
address liquefaction potential. See 10 CFR 72.212(b)(2). Further, 10 
CFR 72.212(b)(3) requires that a general licensee ``[r]eview the Safety 
Analysis Report (SAR) referenced in the [CoC] and the related NRC 
Safety Evaluation Report, prior to use of the general license, to 
determine whether or not the reactor site parameters, including 
analyses of earthquake intensity and tornado missiles, are enveloped by 
the cask design bases considered in these reports.''
    In the continental United States, geographic areas located east of 
the Rocky Mountain Front (east of approximately 104 degrees west 
longitude) are generally known as ``CEUS.'' For NPP sites that have 
been evaluated under the criteria of 10 CFR part 100, appendix A, the 
Design Earthquake must be equivalent to the safe shutdown earthquake 
for the NPP, but in no case less than 0.10g. For the existing NPPs in 
the United States, the design basis response spectra used for the 
design of dry cask storage systems are based on the response spectrum 
defined in NRC Regulatory Guide 1.60, ``Design Response Spectra for 
Seismic Design of Nuclear Power Plants,'' Rev. 1, December 1973, 
anchored at a Peak Ground Acceleration of 0.3g in the horizontal 
direction and 0.2g in the vertical direction.
    As a condition for using a general license to operate an ISFSI, 
licensees are required to perform written evaluations to establish, for 
their site-specific conditions, that the conditions set forth in the 
CoC have been met and that cask storage pads and areas have been 
designed to adequately support the static and dynamic loads of the 
stored casks, considering potential amplification of earthquakes 
through soil-structure interaction, and soil liquefaction potential or 
other soil instability due to vibratory ground motion. The Indian 
Point, Vermont Yankee, and Palisades NPPs, which were specifically 
cited in the comment, have ISFSIs co-located at their existing NPPs and 
are operating their ISFSIs under an NRC general license. Entergy 
Nuclear Generation Company has informed the NRC of its intentions to 
store spent fuel in dry casks at the Pilgrim NPP.
    Based on currently available information, the NRC concludes that 
the storage casks being used at Indian Point, Vermont Yankee, and 
Palisades (all located in CEUS) demonstrate an adequate margin of 
safety for any design-basis earthquake loads postulated at these 
respective sites. There is no safety concern; however, there were a few 
limitations to the risk methodology employed and uncertainties 
associated with the data used. As a result, licensees of operating 
power reactors and ISFSI facilities in the CEUS may need to evaluate 
whether the updated seismic hazard estimates will have any adverse 
impact on their current design/licensing basis. This is currently being 
considered as part of the NRC's Generic Issue Resolution Process. 
Additionally, the storage cask analyses and designs at operating ISFSIs 
provide an adequate safety margin and comply with the requirements in 
10 CFR part 72. Since Generic Issue No. 199, ``Implications of Updated 
Probabilistic Seismic Hazard Estimates in Central and Eastern United 
States on Existing Plants,'' November 17, 2008, is still an open issue, 
implications of any new information and its effects, if any, on CEUS-
ISFSI seismic design for the storage casks and support pads will be 
evaluated as part of the resolution of that issue.
    On September 2, 2010, the NRC issued Information Notice (IN) 2010-
18, ``Implications of Updated Probabilistic Seismic Hazard Estimates in 
Central and Eastern United States on Existing Plants'' to all operating 
reactors licensees. IN 2010-18 discusses recent updates to estimates, 
which apply to ISFSIs as well as existing plants, of the seismic hazard 
in the central and eastern United States. In summary, the information 
provided by the commenters has little overall influence on the 
postulated seismic hazard estimates in the CEUS.
    August 2008 Study of Seismic Hazard Estimates in the Eastern United 
States:
    In August 2008, a technical paper, Observations and Tectonic 
Setting of Historic and Instrumentally Located Earthquakes in the 
Greater New York City--Philadelphia Area by Lynn R. Sykes et al. was 
published in the Bulletin of the Seismological Society of America, Vol. 
98, No. 4. NRC staff from the Office of Nuclear Regulatory Research 
(RES) reviewed this paper to assess the impacts, if any, of this new 
information on the existing design basis seismic hazard estimates used 
for NPPs located in this area of Central and Eastern United States 
(CEUS). RES's assessment was as follows:

    In addition to publishing a seismicity map of the area covering 
the time period from 1677 to 2006, the paper identifies for the 
first time a boundary in seismicity, with earthquakes with 
magnitudes less than 3 occurring south of the boundary but not north 
of it. The boundary intersects the Ramapo Fault on the northwest 
near Peekskill, NY, and this point appears to coincide with an 
offset in the Hudson River. The southeast terminus of the boundary 
is near Stamford, CT, with a length of about 30 miles (50 km). The 
authors inferred that the boundary is a fault.
    If the boundary is a fault, it is only about 30 miles long and 
much shorter than the Ramapo Fault, which has already been 
considered in the seismic hazard of the area and in the seismic 
design of the Indian Point NPPs. The Ramapo Fault was already

[[Page 81055]]

considered in a probabilistic seismic hazard assessment (PSHA) 
covering the Indian Point area. The newly identified boundary/fault 
would not change the maximum magnitude in the PSHA calculations; the 
Ramapo already controls that. The vast majority of earthquakes 
identified in the paper and the general seismicity of the area were 
known and were used in the US Geological Survey PSHA. Thus, the rate 
of seismicity used in their PSHA is little changed by the paper. 
Thus, with the maximum magnitude and the rate of seismicity little 
changed or unchanged by the paper, the PSHA assessment is not 
expected to have changed.
    This means that the paper would have little overall influence on 
the perceived hazard near Buchanan, NY. E-mail from Andrew Murphy to 
Scott Burnell, Diane Screnci, and Neil Sheehan, August 22, 2008 
(ADAMS Accession Number ML091530483).

    The rate of seismicity of the area used in the USGS PSHA is little 
changed by the information published in the paper. As the maximum 
magnitude and the rate of seismicity changed little or was practically 
unchanged by the information in the paper, the USGS PSHA assessment is 
not expected to change.
    Comment 21: A commenter believes that the NRC, in judging the 
safety and security of onsite storage for time periods extending to the 
middle of the next century, should seriously consider the safety of 
subsequent pick-up and transport of the SNF.
    NRC Response: The NRC's regulations establish the safety standards 
for the design, construction and use of spent fuel transportation 
packages. See 10 CFR part 71. The NRC conducts rigorous independent 
reviews to certify that spent fuel transportation packages meet the 
design standards and test conditions in the regulations. In addition, 
the NRC reviews and approves the operational procedures and conditions 
for use of the transport package. These requirements include 
maintenance of the transport package in full compliance with the NRC-
approved package design and material conditions, and the requirements 
include strict adherence to the NRC-approved operating procedures for 
the preparation for and loading of the spent fuel transport package. 
The requirements for use of an NRC-approved spent fuel transport 
package apply irrespective of how long the spent fuel may have been in 
interim storage.
    Packages that are designed, tested, operated and maintained 
according to NRC requirements will provide for the safe transport of 
spent fuel. Spent fuel packages are very robust and are designed to 
withstand severe accidents. Numerous studies and physical testing 
programs have demonstrated that the safety standards that the NRC uses 
to certify transportation packages provide a very high degree of 
protection against real world accidents. See NUREG/CR-4829, Shipping 
Container Response to Severe Highway and Railway Accident Conditions; 
NUREG/CR-6894, Spent Fuel Transportation Package Response to the 
Caldecott Tunnel Fire Scenario; NUREG/CR-6886, Spent Fuel 
Transportation Package Response to the Baltimore Tunnel Fire Scenario; 
NUREG-0170, Final Environmental Statement on the Transportation of 
Radioactive Material by Air and Other Modes; ``Going the Distance? The 
Safe Transport of Spent Nuclear Fuel and High-Level Radioactive Waste 
in the United States,'' National Research Council of the National 
Academies, National Academies Press, Washington DC, 2006, available at 
http://www.nap.edu/catalog.php?record_id=11538.
    Additionally, the NRC periodically reviews the basis for the 
transportation regulations to ensure that the regulations continue to 
provide an adequate level of safety for the shipment of spent fuel. 
These reviews account for changes in analytical methods, materials, 
package contents, and operating history. The last periodic review 
confirmed that initial transportation studies done in the 1970s (which 
are the basis for the NRC's regulations) contained very conservative 
assumptions and that the risk to the public from transportation of 
spent fuel is very low. See NUREG/CR-6672, Reexamination of Spent Fuel 
Shipment Risk Estimates, March 2000. The same robust design features 
that make spent fuel packages safe also make them secure from terrorist 
attack.
    Comment 22: The Decommissioning Plant Coalition (DPC) noted that in 
1990 the Commission expressed support for timely disposal of SNF and 
HLW and stated that it did not intend to support storage of spent fuel 
for an indefinitely long period (See 55 FR 38482; September 18, 1990). 
The DPC urges the Commission to explicitly reaffirm this position and, 
further, express its expectation that the Federal Government will soon 
provide a demonstration that it can reach a consensus on a plan to take 
title to and remove SNF and Greater-Than-Class-C (GTCC) waste from 
permanently shut-down, single-site facilities. The DPC outlines the 
burdens imposed on decommissioned sites by continuing long-term onsite 
storage, such as restricting the property owners and other local 
stakeholders from other potential uses for the site. The National 
Association of Regulatory Utility Commissioners agrees with the NRC 
that today SNF is better protected than ever, but also believes that 
the SNF will be even more secure in a centralized interim storage or 
permanent disposal facility. Similarly, a number of commenters 
expressed the view that a centralized interim storage facility would be 
a safe and cost-effective option for managing and storing SNF until a 
repository is available. The DPC also takes exception to the NRC's 
``analysis'' of difficulties that may block the opening of the Private 
Fuel Storage (PFS) ISFSI and the NRC's ``analysis'' of a February 2006 
NAS study, in footnote 24 of the proposed update to the Waste 
Confidence Decision, and would like the footnote eliminated or 
rewritten.
    NRC Response: The Commission continues to support timely disposal 
of HLW and SNF, but recognizes in this Waste Confidence Decision that 
storage of SNF may safely continue for at least 60 years beyond the 
licensed life for operation of a reactor. The Commission agrees that 
centralized interim storage would be an acceptable method for managing 
and storing SNF until a repository is available, but determining when 
DOE will take spent fuel and GTCC wastes from reactor sites and how 
waste will then be managed are issues for DOE to resolve.
    The NRC's proposed update noted that the issuance of a license for 
the PFS ISFSI confirmed the feasibility of licensing an away-from-
reactor ISFSI under 10 CFR Part 72, but also noted that several issues 
would have to be resolved before the PFS ISFSI could be built and 
operated (See 73 FR 59566; October 9, 2008). Footnote 24 identified 
these issues as two approvals from the Department of the Interior and a 
NAS Report on the transportation of SNF in the United States (National 
Research Council 2006, Going the Distance: The Safe Transport of [SNF 
and HLW] in the United States). The footnote is not an analysis of 
these issues; it simply acknowledges issues raised by the Department of 
the Interior and NAS that need to be addressed. With respect to PFS, 
the DPC states: ``The Commission would do well to comment that it is 
THE safe and secure licensed facility that should be utilized to reduce 
waste confidence concerns. You can observe, consistent with historical 
Commission concerns about dual and multiple regulation, that 
legislation can effect a reduction in the multiple and redundant 
political and regulatory jurisdictions over use of such facilities.'' 
The license issued to PFS demonstrates that the Commission believes 
that the facility can be constructed and operated without jeopardizing 
public health and safety, but it is up to the licensee and

[[Page 81056]]

other agencies to resolve issues within their purview that may block 
construction of the facility.

Issue 8: Miscellaneous Comments

    Comment 23: One commenter stated that the proposed rulemaking 
appears to countenance the stranding of SNF at or near plant sites for 
up to 150 years or more and contains no effective or reasonable time 
frame in 20 or so years to revisit this matter, or to contain any form 
of limitations, guidelines, or other provisions to ensure the ultimate 
safe and proper disposal of SNF.
    NRC Response: The Commission, in its 1999 review of the Waste 
Confidence Decision, stated that it would consider undertaking a 
comprehensive reevaluation of the Waste Confidence 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 the Waste Confidence 
Findings (See 64 FR 68005; December 6, 1999). Although those criteria 
have not triggered this update, it is apparent that the ultimate 
disposition of the YM application is uncertain. This update reflects 
the uncertainty regarding the ultimate grant or denial of the YM 
license by considering the possibility that the license is not granted. 
For this reason, termination of the YM program would not be a basis for 
a further review of the Waste Confidence Decision. However, if 
significant and pertinent unexpected events that raise substantial 
doubt about the continuing validity of the Waste Confidence Findings 
occur, the Commission will consider undertaking another review of the 
Waste Confidence Decision. Further, the Commission has directed the NRC 
staff to begin an EIS to consider the long-term (greater than 120 
years) storage of SNF and HLW and to consider further rulemaking in 
accordance with the findings of this review. The Commission will 
revisit the criteria for reopening the Waste Confidence Decision and 
Rule as part of this longer-term effort.
    Comment 24: A commenter stated that the cost of the proposed rule 
change is only briefly and minimally discussed and expressed the view 
that there would be significant costs to both ratepayers and taxpayers 
stemming from storage of this waste for an additional 50 to 60 years at 
plant sites. The commenter recommended that the full cost of 
implementing this rule be completely evaluated by the NRC under the 
NRC's Regulatory Analyses Guidelines and the requirements for assessing 
the impacts of proposed rules which have a certain threshold cost. TSEP 
believes it is not reasonable to assume that the present 1.0 mil per 
kWh fee will suffice to pay for the U.S. repository program.
    NRC Response: The Commission's action of enlarging its generic 
determination in 10 CFR 51.23(a) by 30 years is not a licensing 
decision and does not give permission to reactor licensees to store 
spent fuel that they do not already possess (or may not obtain) under a 
10 CFR Part 72 general or specific license. See Response to Comment 6. 
Finding 4 only states the Commission's reasonable assurance that SNF 
can be stored safely and without significant environmental impact for 
at least 60 years beyond the licensed life for operation of any 
reactor, if necessary. The NRC generally provides a Regulatory Analysis 
for actions that ``would affect a change in the use of resources by its 
licensees.'' Regulatory Analysis Guidelines of the U.S. Nuclear 
Regulatory Commission, NUREG/BR-0058, 5 (September 2004). A Regulatory 
Analysis may be appropriate when the NRC is considering placing burdens 
on its licensees through a licensing or regulatory action (e.g., in the 
prospective ISFSI security rulemaking), but that is not the case here. 
The NRC recognizes that many commenters are concerned about the burden 
placed on ratepayers charged by utilities for the cost of continued 
storage of SNF at reactor sites and on taxpayers paying the cost of 
DOE's default in failing to remove SNF from reactor sites as specified 
in DOE's contracts with the utilities. However, until DOE is able to 
fulfill its contracts, these burdens will exist irrespective of these 
updates to the Waste Confidence Decision and Rule; and NRC licensees 
still have to comply with the NRC's regulations, which continue to 
provide reasonable assurance that SNF and HLW will be stored safely.
    The fee mandated by the NWPA that reactor licensees must pay into 
the Nuclear Waste Fund to provide for eventual disposal of HLW and SNF 
has so far been more than adequate to support DOE's HLW program with 
approximately $25 billion in the Fund as of July 2010. See Statement of 
Kristina M. Johnson, Undersecretary of Energy, before the Committee on 
the Budget, U.S. House of Representatives, 1 (July 27, 2010).\11\ 
Moreover, the NWPA provides a mechanism for increasing the fee if the 
current fee becomes inadequate to cover costs. See Section 302(a)(4) of 
NWPA, 42 U.S.C. 10222 (2006). DOE has periodically issued a total 
system cost estimate for the disposal program to provide a basis for 
assessing the adequacy of the fee.\12\ See, e.g., 2008 Fee Adequacy 
Assessment Letter Report, (January 13, 2009).
---------------------------------------------------------------------------

    \11\ Congress must make annual appropriations for the HLW 
program from the Fund, so the amount actually available to DOE in 
any given year is dependent upon the amount appropriated.
    \12\ NRC is aware that there is a pending DC Circuit case--
National Association of Regulatory Utility Commissioners v. DOE, 
Nos. 10-1074 and 10-1076 (consolidated) (DC Cir.)--where petitioners 
have asked the court of appeals to suspend further payments to the 
nuclear waste fund. The pending DC Circuit litigation relates to 
Yucca Mountain-related developments. Whatever that litigation's 
outcome, DOE's fee-adjustment authority would remain in the NWPA, 
available to be exercised in appropriate circumstances.
---------------------------------------------------------------------------

    Comment 25: A commenter raised the question of how the Commission's 
expectation that repository capacity can reasonably be expected to be 
available within 50-60 years beyond the licensed life for operation of 
any reactor would be met in the case of the Humboldt Bay 3 NPP which 
was decommissioned in 1976, meaning that 50 years beyond its 
decommissioning would be 2026. The commenter asked if this meant that 
SNF would be removed from Humboldt Bay 3 by 2026 and, if so, what is 
the need for amending Finding 2.
    NRC Response: The commenter has confused the end of operation of 
the reactor with the end of the licensed life for operation. Humboldt 
Bay 3 was issued a 40-year operating license in 1962. The end of its 
licensed life for operation, therefore, was 2002 and 50 years beyond 
that would be 2052. Even if a reactor is retired prematurely, resulting 
in the need to manage and store SNF for a longer period after the end 
of reactor operation, the Commission is confident, for all the reasons 
expressed in reaching Findings 3 and 4, that the management and storage 
of the SNF will be conducted safely and securely without significant 
impact to the environment.
    Comment 26: The Attorney General of New York submitted supplemental 
comments, many of which are discussed above. These comments did, 
however, raise an issue that, although similar to other comments, the 
NRC is addressing here: ``Recent actions by the Commission, 
particularly since 2001, have demonstrated that a significant number of 
substantial environmental and safety issues related to indefinite 
storage of spent fuel at the site of shutdown nuclear reactors are 
specific to the particular reactor and site and cannot be addressed on 
a generic basis.'' More generally, the Attorney General argues that 
there are environmental and safety issues associated with spent fuel 
storage (not just indefinite storage) that

[[Page 81057]]

are site and facility-specific and therefore cannot be addressed 
through a generic rulemaking. The Attorney General believes that the 
NRC could address these concerns by permitting States to raise site-
specific concerns with respect to issues that are now foreclosed by the 
Waste Confidence Decision and Rule.
    NRC Response: The Attorney General is correct that there may be 
some issues that cannot be addressed through a generic process like the 
Waste Confidence Decision. The Commission has long recognized this, 
even in cases where issues are resolved through a generic rulemaking. 
Site-specific circumstances may require a site-specific analysis; the 
Commission has provided for these situations through its regulations in 
10 CFR 2.335, which allows parties to adjudicatory proceedings to 
petition for the waiver of or an exception to a rule in a particular 
proceeding. These requests require the petitioning party to demonstrate 
that special circumstances exist so that the application of the rule or 
regulation would not serve the purposes for which the rule or 
regulation was adopted.
    Further, in the case of license renewal proceedings, the licensee 
is required to look for and identify ``new and significant'' 
information that would put the facility outside of the generic 
assessment in the GEIS for license renewal; the NRC staff also looks 
for new and significant information as part of its review. If no new 
and significant information is found, the staff concludes that the 
issue is generic and within the environmental impacts of the GEIS. With 
respect to the ongoing Indian Point license renewal proceeding, where 
the State of New York is a party, and has raised similar issues in the 
context of that proceeding, the license renewal proceeding is the 
proper venue in which to seek a waiver to the Waste Confidence Rule. If 
the State believes that there are site-specific issues associated with 
the Indian Point license renewal proceeding, the State should seek a 
waiver of the rule through that proceeding using the procedures in 10 
CFR 2.335.\13\ But the potential that one or more sites might not fall 
under the generic determination in the Waste Confidence Decision and 
Rule is not sufficient reason for the Commission to require to a site-
specific analysis for all sites. The 10 CFR 2.335 waiver process is 
intended to address the circumstances that the Attorney General claims 
are present at Indian Point; and the adjudicatory proceeding for the 
Indian Point license renewal, not this rulemaking, is the proper venue 
to raise these issues.
---------------------------------------------------------------------------

    \13\ On July 8, 2010, the Commission directed the ASLB to deny 
admission of two new contentions regarding waste confidence in the 
Indian Point proceeding. The Commission explained that it has been 
longstanding policy to preclude initiating litigation on issues that 
will soon be resolved generically. See In the Matter of Entergy 
Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 
and 3), CLI-10-19, 2010 WL 2753785 (2010).
---------------------------------------------------------------------------

    Comment 27: The Attorney General of New York's supplemental 
comments raised two new ``conclusions'' to support its original 
comments:

    Subsequent to 2001, the Commission has abandoned any attempt to 
treat safety and environmental issues associated with spent fuel 
storage at reactor sites on a generic basis. Rather, the Commission, 
operating through its regulatory staff, has ordered implementation 
of site-specific mitigation measures for each reactor to address 
concerns with spent fuel storage. NRC has acknowledged that there 
are differences in spent fuel pool designs and capabilities. NRC has 
also required the implementation of site-specific mitigation 
measures in response to Congressional directives to NRC to develop 
site-specific analyses and measures for each spent fuel pool. 
Moreover, while these mitigation measures have been the subject of 
extensive discussion between NRC and industry, their details have 
not been disclosed to the States, and there has not been any 
opportunity for public input regarding the adequacy of the measures 
being taken or even whether measures are being taken to address all 
the potential environmental and safety issues associated with spent 
fuel storage at reactors sites or whether more effective 
alternatives are available.

And

    Previous indications that the Yucca Mountain waste repository 
would never come to fruition have now become more certain as the 
funding for the program has been removed from the proposed federal 
budget and DOE staff have publicly stated that the project will not 
go forward.

    NRC Response: Contrary to the State's assertion, the NRC continues 
to treat some issues associated with spent fuel storage on a generic 
basis; the Commission's approval of these updates to the Waste 
Confidence Decision and Rule are evidence of that fact. To the extent 
that the Attorney General's comments relate to the license renewal 
process at Indian Point, the Commission has a process in place to 
ensure that generic issues at specific sites under review for license 
renewal are, in fact, generic. Although spent fuel storage is a 
Category 1 (generic) issue and does not require a site-specific 
evaluation, the licensee and the staff both evaluate these generic 
issues to ensure that there is no new and significant information that 
would require a site-specific analysis for these issues. To the extent 
that the rest of the Attorney General's conclusion raises issues 
associated with the Indian Point license renewal, this rulemaking is 
not the appropriate venue to raise these issues; the State should raise 
these concerns in its capacity as a party to the Indian Point 
relicensing proceeding.
    As acknowledged in the Attorney General's conclusion, the 
Commission discussed the relationship between the YM repository and the 
draft final updates to the Waste Confidence Decision and Rule in the 
attachments to SECY-09-0090. In these documents (the draft final 
Decision and Rule), the Commission discussed how the Waste Confidence 
Decision and Rule assume that YM will not be opened as a repository. 
This conclusion continues in these documents: The Waste Confidence 
Decision and Rule assume that YM is not an option. As the Commission 
states throughout this document and has stated on multiple occasions, 
the availability of the YM repository has no bearing on the outcome of 
this rulemaking or update to the Waste Confidence Decision.

Evaluation of Waste Confidence Findings

    Having considered and addressed the comments received on the 
Commission's proposed updates to the Waste Confidence Decision and 
Rule, the Commission now reexamines the 1984 and 1990 bases for its 
findings and supplements those bases with an evaluation of events and 
issues that have arisen since 1990 and affect the findings.

Table of Contents

I. Finding 1: The Commission finds reasonable assurance that safe 
disposal of high-level radioactive waste and spent fuel in a mined 
geologic repository is technically feasible.
    A. Bases for Finding 1
    B. Evaluation of Finding 1
II. Finding 2 (1990): 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 
high-level radioactive waste and spent fuel originating in such 
reactor and generated up to that time.
    A. Bases for Finding 2
    B. Evaluation of Finding 2
    C. Finding 2
III. Finding 3: The Commission finds reasonable assurance that HLW 
and spent fuel will be managed in a safe manner until sufficient 
repository capacity is available to assure the safe disposal of all 
HLW and spent fuel.

[[Page 81058]]

    A. Bases for Finding 3
    B. Evaluation of Finding 3
IV. Finding 4 (1990): 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 
independent spent fuel storage installations.
    A. Bases for Finding 4
    B. Evaluation of Finding 4
    C. Finding 4
V. Finding 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.
    A. Bases for Finding 5
    B. Evaluation of Finding 5

I. Finding 1: The Commission Finds Reasonable Assurance That Safe 
Disposal of High-Level Radioactive Waste and Spent Fuel in a Mined 
Geologic Repository Is Technically Feasible

A. Bases for Finding 1

    The Commission reached this finding in 1984 and reaffirmed it in 
1990. The focus of this finding is on whether safe disposal of HLW and 
SNF is technically possible using existing technology and without a 
need for any fundamental breakthroughs in science and technology. To 
reach this finding, the Commission considered the basic features of a 
repository designed for a multi-barrier system for waste isolation and 
examined the problems that the DOE would need to resolve as part of a 
final design for a mined geologic repository. The Commission identified 
three major technical problems: (1) The selection of a suitable 
geologic setting as host for a technically acceptable repository site; 
(2) the development of waste packages that will contain the waste until 
the fission products are greatly reduced; and (3) the development of 
engineered barriers, such as backfilling and sealing of the drifts and 
shafts of the repository, which can effectively retard migration of 
radionuclides out of the repository (49 FR 34667; August 31, 1984).
    DOE's selection of a suitable geologic setting is governed by the 
NWPA. DOE explored potential repository sites before the NWPA was 
enacted, but that Act set in place a formal process and schedule for 
the development of two geologic repositories. The following brief 
summary of key provisions of this Act may assist readers in 
understanding DOE's process for locating a suitable geologic setting.
    As initially enacted, the Nuclear Waste Policy Act of 1982 directed 
DOE to issue guidelines for the recommendation of sites and then to 
nominate at least five sites as suitable for site characterization for 
selection as the first repository site and, not later than January 1, 
1985, to recommend three of those sites to the President for 
characterization as candidate sites. Nuclear Waste Policy Act of 1982, 
Sec.  112, 96 Stat. 2201 (1983) (current version at 42 U.S.C. 10132 
(2006)). Not later than July 1, 1989, DOE was to again nominate five 
sites and recommend three of them to the President for characterization 
for selection as the second repository. Id. DOE was then to carry out 
site characterization activities for the approved sites. Nuclear Waste 
Policy Act of 1982, Sec.  113, 96 Stat. 2201 (1983) (current version at 
42 U.S.C. 101323 (2006)). Following site characterization, DOE was to 
recommend sites to the President as suitable for development as 
repositories and the President was to recommend one site to the 
Congress by March 31, 1987, and another site by March 31, 1989, for 
development as the first two repositories. Nuclear Waste Policy Act of 
1982, Sec.  114, 96 Stat. 2201 (1983) (current version at 42 U.S.C. 
10134 (2006)). States and affected Indian tribes were given the 
opportunity to object, but if the recommendations were approved by 
Congress, DOE was to submit applications for a construction 
authorization to the NRC. Id. The NRC was given until January 1, 1989, 
to reach a decision on the first application, and until January 1, 
1992, on the second. The Commission was directed to prohibit the 
emplacement in the first repository of more than 70,000 MTHM until a 
second repository was in operation. Id. The NWPA, inter alia, 
restricted site characterization solely to a site at Yucca Mountain, NV 
(YM) and terminated the program for a second repository. The NWPA 
provided that if DOE at any time determines Yucca Mountain to be 
unsuitable for development as a repository, DOE must report to Congress 
its recommendations for further action to ensure the safe, permanent 
disposal of SNF and HLW, including the need for new legislation. 
Section 113 of NWPA, 42 U.S.C. 10133 (2006).
    In 1984, the Commission reviewed DOE's site exploration program and 
concluded that it was providing information on site characteristics at 
a sufficiently large number and variety of sites and geologic media to 
support the expectation that one or more technically acceptable sites 
would be identified (49 FR 34668; August 31, 1984). In 1990, the 
Commission noted that the 1987 amendment of the Nuclear Waste Policy 
Act of 1982, which focused solely on the YM site, could cause 
considerable delay in opening a repository if that site were found not 
suitable for licensing. But the possibility of that delay did not 
undermine the Commission's confidence that a technically acceptable 
site would be located, either at YM or elsewhere. The Commission 
observed that the NRC staff had provided extensive comments on DOE's 
draft environmental assessments of the nine sites it had identified as 
being potentially acceptable and on the final environmental assessments 
for the five sites nominated.\14\ The NRC had not identified any 
fundamental technical flaws or disqualifying factors that would render 
any of the sites unsuitable for characterization or potentially 
unlicenseable, although the NRC noted that many issues would need to be 
resolved during site characterization for YM or any other site (55 FR 
38486; September 18, 1990).
---------------------------------------------------------------------------

    \14\ Under the program established by the initial NWPA, DOE had 
nominated sites at Hanford WA, Yucca Mountain, NV, Deaf Smith 
County, TX, Davis Canyon, UT, and Richton Dome, MS, and had 
recommended the first 3 sites for site characterization.
---------------------------------------------------------------------------

    With respect to the development of effective waste packages, the 
Commission, in 1984, reviewed DOE's scientific and engineering program 
on this subject. The Commission also considered whether the possibility 
of renewed reprocessing of SNF could affect the technical feasibility 
of the waste package because it would need to consider waste form other 
than spent fuel. The Commission concluded that the studies by DOE and 
others demonstrated that the chemical and physical properties of SNF 
and HLW can be sufficiently understood to permit the design of a 
suitable waste package and that the possibility of commercial 
reprocessing would not substantially affect this conclusion (49 FR 
34671; August 31, 1984). In 1990, the Commission reviewed DOE's 
continued research and experimentation on waste packages, which 
primarily focused on work in Canada and Sweden. The NRC noted that the 
DOE had narrowed the range of waste package designs to a design 
tailored for unsaturated tuff \15\ at the YM site due to the 1987 
redirection of the HLW program. The NRC also noted that some 
reprocessing wastes from the defense program and the West Valley 
Demonstration Project were now

[[Page 81059]]

anticipated to be disposed of in the repository. The NRC remained 
confident that, given a range of waste forms and conservative test 
conditions, the technology is available to design acceptable waste 
packages (55 FR 38489; September 18, 1990).
---------------------------------------------------------------------------

    \15\ Tuff is a type of rock consisting of successive layers of 
fine-grained volcanic ash. See DOE/RW-0573, Rev. 0 Yucca Mountain 
Repository GI. (ADAMS Accession Numbers ML081560408, ML081560409, 
and ML081560410).
---------------------------------------------------------------------------

    With respect to the development of effective engineered barriers, 
the Commission's confidence in 1984 rested upon its consideration of 
DOE's ongoing research and development activities regarding backfill 
materials and borehole and shaft sealants, which led the Commission to 
conclude that these activities provided a basis for reasonable 
assurance that engineered barriers can be developed to isolate or 
retard radioactive material released by the waste package (49 FR 34671; 
August 31, 1984). In 1990, although DOE's research had narrowed to 
focus on YM, the Commission continued to have confidence that backfill 
or packing materials can be developed as needed for the underground 
facility and waste package and that an acceptable seal can be developed 
for candidate sites in different geologic media (55 FR 38489-38490; 
September 18, 1990).

B. Evaluation of Finding 1

    Today, the scientific and technical community engaged in waste 
management continues to have high confidence that safe geologic 
disposal is achievable with currently available technology. See, e.g., 
National Research Council, ``Technical Bases for Yucca Mountain 
Standards,'' 1995. No insurmountable technical or scientific problem 
has emerged to disturb this confidence that safe disposal of SNF and 
HLW can be achieved in a mined geologic repository. To the contrary, 
there has been significant progress in the scientific understanding and 
technological development needed for geologic disposal over the past 18 
years. There is now a much better understanding of the processes that 
affect the ability of repositories to isolate waste over long periods. 
Id. at 71-72; International Atomic Energy Agency (IAEA), ``Scientific 
and Technical Basis for the Geologic Disposal of Radioactive Wastes, 
Technical Reports Series No. 413,'' 2003. The ability to characterize 
and quantitatively assess the capabilities of geologic and engineered 
barriers has been repeatedly demonstrated. NRC, ``Disposal of High-
Level Radioactive Wastes in a Proposed Geologic Repository at Yucca 
Mountain, Nevada; Proposed Rule,'' (64 FR 8640, 8649; February 22, 
1999); Organization for Economic Cooperation and Development, Nuclear 
Energy Agency, ``Lessons Learned from Ten Performance Assessment 
Studies,'' 1997. Specific sites have been investigated and extensive 
experience has been gained in underground engineering. IAEA, 
``Radioactive Waste Management Studies and Trends, IAEA/WMDB/ST/4,'' 
2005; IAEA, ``The Use of Scientific and Technical Results from 
Underground Research Laboratory Investigations for the Geologic 
Disposal of Radioactive Waste, IAEA-TECDOC-1243,'' 2001. These advances 
and others throughout the world continue to confirm the soundness of 
the basic concept of deep geologic disposal. IAEA, ``Joint Convention 
on Safety of Spent Fuel Management and on Safety of Radioactive Waste 
Management, INFCIRC/546,'' 1997.
    In the United States, the technical approach for safe HLW disposal 
has remained unchanged for several decades: Use a deep geologic 
repository containing natural barriers to hold canisters of HLW with 
additional engineered barriers to further retard radionuclide release. 
Although some elements of this technical approach have changed in 
response to new knowledge (e.g., engineered backfill was removed as a 
design concept for YM in the late 1990s in response to enhanced 
understandings of heat and water transfer processes in the near-field 
drift environment), safe disposal still appears to be feasible with 
current technology. In 1998, DOE conducted assessments for long-term 
performance of a potential repository at YM (DOE/RW-0508, Viability 
Assessment) and 2002 (DOE/RW-0539, Site Recommendation). These 
assessments used existing technology and available scientific 
information and did not identify areas where fundamental breakthroughs 
in science or technology were needed to support safe disposal.
    With respect to the issue of identifying a suitable geologic 
setting as host for a technically acceptable site, DOE made its 
suitability determination for the YM site in 2002. On June 3, 2008, DOE 
submitted the application for construction authorization to the NRC and 
on September 8, 2008, NRC staff notified DOE that it found the 
application acceptable for docketing (73 FR 53284; September 15, 2008). 
Whether YM is technically acceptable must await the outcome of an NRC 
licensing proceeding, which, if completed, would rule on the technical 
acceptability of a repository at YM. Even if DOE does not construct a 
repository at YM, this would not change the fact that the Commission 
continues to have reasonable assurance that the technology exists today 
to safely dispose of SNF and HLW in a geologic repository. Although the 
1987 amendments to NWPA barred DOE from continuing site investigations 
elsewhere, the U.S. Congress's decision to focus solely on YM was not 
based on any finding that any of the other sites were unsuitable for 
technical reasons; rather, the decision was aimed at controlling the 
costs of the HLW program (55 FR 38486; September 18, 1990).
    Repository programs in other countries, which could inform the U.S. 
program, are actively considering crystalline rock, clay, and salt 
formations as repository host media. IAEA, ``Radioactive Waste 
Management Status and Trends, IAEA/WMDB/ST/4,'' 2005; IAEA, ``The Use 
of Scientific and Technical Results from Underground Research 
Laboratory Investigations for the Geologic Disposal of Radioactive 
Waste, IAEA-TECDOC-1243,'' 2001. Many of these programs have researched 
these geologic media for several decades. Although there are relative 
strengths to the capabilities of each of these potential host media, no 
geologic media previously identified as a candidate host, with the 
exception of salt formations for SNF, has been ruled out based on 
technical or scientific information. Salt formations are being 
considered as hosts only for reprocessed nuclear materials because 
heat-generating waste, like SNF, exacerbates a process by which salt 
can rapidly deform. This process could cause problems with keeping 
drifts stable and open during the operating period of a repository.
    In 2001, the NRC amended its regulations to include a new 10 CFR 
part 63, ``Disposal of High-Level Radioactive Wastes in a Geologic 
Repository at Yucca Mountain, Nevada,'' (66 FR 55732; November 2, 
2001).
    Part 63 requires use of both natural and engineered barriers to 
meet overall total system performance objectives without pre-determined 
subsystem performance requirements, which are required in 10 CFR part 
60.\16\ Accordingly, U.S. research and development activities have 
focused on understanding the long-term capability of natural and 
engineered barriers, which can prevent or substantially reduce the 
release rate of radionuclides

[[Page 81060]]

from a potential repository system. Although the performance of 
individual barriers may change over time, the overall performance of 
the total system is required to be acceptable throughout the 
performance period of the repository. In this context of total system 
performance, research and development has found that it appears 
technically possible to design and construct a waste package and an 
engineered barrier system that, in conjunction with natural barriers, 
could prevent or substantially reduce the release rate of radionuclides 
from a potential repository system during the performance period. NRC, 
``Disposal of High-Level Radioactive Wastes in a Proposed Geologic 
Repository at Yucca Mountain, Nevada; Proposed Rule,'' (64 FR 8649; 
February 22, 1999); IAEA, ``Joint Convention on Safety of Spent Fuel 
Management and on Safety of Radioactive Waste Management, INFCIRC/
546,'' 1997.
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    \16\ NRC's regulations at 10 CFR part 63 apply only to the 
proposed repository at YM. NRC's regulations at 10 CFR part 60, 
``Disposal of High-Level Radioactive Wastes in Geologic 
Repositories,'' govern the licensing of any repository other than 
one located at YM. However, at the time part 63 was proposed, the 
Commission indicated it would consider revising Part 60 if it seemed 
likely to be used in the future. (64 FR 8640, 8643; February 22, 
1999).
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    Since the Commission last considered Waste Confidence, the NRC has 
issued design certifications for new reactors under its regulations at 
10 CFR part 52, ``Early Site Permits; Standard Design Certifications; 
and Combined Licenses for Nuclear Power Plants,'' and is currently 
reviewing several plant designs in response to applications for design 
certifications. The NRC is also considering COL applications for 
nuclear power plants that reference these certified and under-review 
designs. These facilities would use the same or similar fuel assembly 
designs as the nuclear power plants currently operating in the United 
States. If these new facilities use a new fuel type or different 
cladding, then it may be necessary to modify the design of a repository 
to accommodate these changes. But if limited reliance is placed on the 
barrier capabilities of cladding or fuel type to comply with repository 
safety requirements, then minimal design changes may be needed to 
accommodate new types of SNF or cladding. As such, the new reactor 
designs and specific license applications currently under review would 
not raise issues as to the technical feasibility of repository 
disposal.
    The NRC is also engaged in preliminary interactions with DOE and 
possible reactor vendors proposing advanced reactor designs that are 
different from the currently operating light-water reactors. Some of 
these advanced reactors use gas-cooled or liquid metal cooled 
technologies and have fuel and reactor components that might require 
different transportation and storage containers. Geometric, thermal, 
and criticality constraints could conceivably require a design 
modification to disposal containers from those currently proposed for 
YM. Nevertheless, the technical requirements for disposal of advanced 
reactor components appear similar to the requirements for disposal of 
components for current light-water reactors. For example, DOE had 
planned to dispose of spent fuel at YM from both gas-cooled (Peach 
Bottom 1) and liquid-metal cooled (Fermi 1) reactors, using the same 
basic technological approach as for SNF from light-water reactors. 
Although radionuclide inventory, fuel matrix, and cladding 
characteristics for advanced fuels might be different from current 
light-water reactors, the safe disposal of advanced fuel appears to 
involve the same scientific and engineering knowledge as used for fuel 
from current light-water reactors.
    There is currently a high uncertainty regarding the growth of 
advanced reactors in the U.S. In the licensing strategy included in a 
joint report to Congress in August 2008 from the NRC and the DOE for 
the next generation nuclear plant (NGNP) program, the agencies found 
that an aggressive licensing approach may lead to operation of a 
prototype facility in 2021. (ADAMS Accession Number ML082290017). Based 
on comparison with current disposal strategies for fuel from existing 
gas cooled or liquid-metal cooled reactors, the NRC is confident that 
current technology is adequate to support the safe disposal of spent 
fuel from a potential prototype facility. Small modular light-water 
reactors being developed will use fuel very similar in form and 
materials to the existing operating reactors and will not, therefore, 
introduce new technical challenges to the disposal of spent fuel. In 
addition to the NGNP activities related to the prototype reactor, 
various activities, such as DOE's Fuel Cycle Research and Development 
Program, are underway to evaluate fuel cycle alternatives that could 
affect the volume and form of waste from the prototype reactor or other 
nuclear reactor designs. The need to consider waste disposal as part of 
the overall research and development activities for advanced reactors 
is recognized and included in the activities of designers, the DOE, and 
the NRC. See, e.g., DOE Nuclear Energy Research Advisory Committee and 
the Generation IV International Forum, ``A Technology Roadmap for 
Generation IV Nuclear Energy Systems,'' December 2002.
    Based on the above discussion, including its response to the public 
comments, the Commission reaffirms Finding 1.

II. Finding 2 (1990): 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 High-Level Radioactive 
Waste and Spent Fuel Originating in Such Reactor and Generated Up to 
That Time

A. Bases for Finding 2

    In the 1984 and 1990 Waste Confidence Decisions, the dual 
objectives of this finding were to predict when a repository will be 
available for use and to predict how long spent fuel may need to be 
stored at a reactor site until repository space is available for the 
spent fuel generated at that reactor. With respect to the first 
prediction, the Commission's focus in 1984 was on the years 2007-2009--
the years during which the operating licenses for the Vermont Yankee 
\17\ and Prairie Island \18\ nuclear power plants would expire.\19\ In 
1984, DOE anticipated that the first repository would begin operation 
in 1998 and the second in 2004. But the NRC concluded that technical 
and institutional uncertainties made it preferable to focus on the 
2007-2009 time period. The technical uncertainties involved how long it 
would take DOE to locate a suitable geologic setting for a potentially 
technically acceptable repository and how long it would take to develop 
an appropriate waste package

[[Page 81061]]

and engineered barriers. The Commission expressed the view that despite 
early delays, DOE's program was on track and, under the impetus given 
by the recently-enacted NWPA, would timely resolve the technical 
problems (49 FR 34674-34675; August 31, 1984).
---------------------------------------------------------------------------

    \17\ The Commission amended Vermont Yankee's operating license 
on January 23, 1991, to extend the expiration date of the license to 
2012. (56 FR 2568; January 24, 1991). Vermont Yankee has applied for 
a license renewal, which is being reviewed by the Commission and 
would extend the plant's operating license for 20 years. http://www.nrc.gov/reactors/operating/licensing/renewal/applications.html 
(last visited September 15, 2010).
    \18\ The Commission amended Prairie Island 1 and 2's operating 
licenses on September 23, 1986, to extend the expiration date of the 
licenses to August 9, 2013, and October 29, 2014 (ADAMS Accession 
Number ML022200335). Prairie Island 1 and 2 have applied for license 
renewals, which are being reviewed by the Commission and would 
extend the plants' operating licenses for 20 years. http://www.nrc.gov/reactors/operating/licensing/renewal/applications.html 
(last visited September 15, 2010).
    \19\ Under the court remand that precipitated the initial waste 
confidence review, NRC was required to consider whether there was 
reasonable assurance that an offsite storage solution would be 
available by the years 2007-2009 and, if not, whether there was 
reasonable assurance that the spent fuel could be stored safely at 
those sites beyond those dates. See State of Minnesota v. NRC, 602 
F.2d 412, 418 (DC Cir. 1979).
---------------------------------------------------------------------------

    The Commission also identified institutional uncertainties that 
needed to be resolved: (1) Measures for dealing with Federal-state 
disputes; (2) An assured funding mechanism that would be sufficient 
over time to cover the period for developing a repository; (3) An 
organizational capability for managing the HLW program; and (4) A firm 
schedule and establishment of responsibilities. The Commission 
expressed its confidence in the ability of the provisions of the then 
recently-passed NWPA to timely resolve these uncertainties (49 FR 
34675-34679; August 31, 1984).
    With respect to the second prediction, the NRC reviewed DOE's 
estimates of the amount of installed generating capacity of commercial 
nuclear power plants in the year 2000 and concluded that the total 
amount of spent fuel that would be produced during the operating 
lifetimes of these reactors would be about 160,000 MTHM. To accommodate 
this volume of spent fuel, the NRC assumed that two repositories would 
be needed. The NRC calculated that if the first repository began to 
receive SNF in 2005 and the second in 2008, then all the SNF would be 
emplaced by about 2026. This would mean that sufficient repository 
capacity would be available within 30 years beyond the expiration of 
any reactor license for disposal of its SNF (49 FR 34679; August 31, 
1984).
    In reviewing these predictions in 1990, the Commission faced a 
considerably changed landscape. First, DOE's schedule for the 
availability of a repository had slipped several times so that its 
then-current projection was 2010. Second, Congress's 1987 amendment of 
NWPA had confined site characterization to the YM site, meaning that 
there were no ``back-up'' sites being characterized in case the YM site 
was found unsuitable or unlicenseable. Finally, site characterization 
activities at YM had not proceeded without problems, notably in DOE's 
schedule for subsurface exploration and in development of its quality 
assurance program. Given these considerations, the Commission found it 
would not be prudent to reaffirm its confidence in the availability of 
a repository by 2007-2009 (55 FR 38495; September 18, 1990).
    Instead, the Commission found that it would be reasonable to assume 
that DOE could make its finding whether YM was suitable for development 
of a repository by the year 2000. The Commission was unwilling to 
assume that DOE would make a finding of suitability (which would be 
necessary for a repository to be available by 2010). To establish a new 
time frame for repository availability, the Commission made the 
assumption that DOE would find the YM site unsuitable by the year 2000 
and that (as DOE had estimated) it would take 25 years for a repository 
to become available at a different site. The Commission then considered 
whether it had sufficient bases for confidence that a repository would 
be available by 2025 using the same technical and institutional 
criteria it had used in 1984. The Commission found no reason to believe 
that another potentially technically acceptable site could not be 
located if the YM site were found unsuitable. The development of a 
waste package and engineered barriers was tied to the question of the 
suitability of the YM site, but the NRC found no reason to believe that 
a waste package and engineered barriers could not be developed for a 
different site by 2025, if necessary (55 FR 38495; September 18, 1990).
    The institutional uncertainties were perhaps more difficult to 
calculate. The Commission acknowledged that DOE's efforts to address 
the concerns of states, local governments, and Indian tribes had met 
with mixed results. Nevertheless, the Commission retained its 
confidence that NWPA had achieved the proper balance between providing 
for participation by affected parties and providing for the exercise of 
Congressional authority to carry out the national program for waste 
disposal (55 FR 38497; September 18, 1990). Similarly, the Commission 
believed that management and funding issues had been adequately 
resolved by NWPA and would not call into question the availability of a 
repository by 2025 (55 FR 38497-38498; September 18, 1990). Thus, 
except for the schedule, the Commission was confident that the HLW 
program set forth in the NWPA would ultimately be successful.
    The Commission also considered whether the termination of 
activities for a second repository, combined with the 70,000 MTHM limit 
for the first repository, together with its new projection of 2025 as 
the date for the availability for a repository, undermined its 
assessment that sufficient repository capacity would be available 
within 30 years beyond expiration of any reactor operating license to 
dispose of the SNF originating in such reactor and generated up to that 
time (55 FR 38501-38504; September 18, 1990). The Commission noted that 
almost all reactor licenses would not expire until sometime in the 
first three decades of the twenty-first century and license renewal was 
expected to extend the terms of some of these licenses. Thus, a 
repository was not needed by 2007-2009 to provide disposal capacity 
within 30 years beyond expiration of most operating licenses.\20\ The 
Commission acknowledged, however, that it appeared likely that two 
repositories would be needed to dispose of all the SNF and HLW from the 
current generation of reactors unless Congress provided statutory 
relief from the 70,000 MTHM limit for the first repository and unless 
the first repository had adequate capacity to hold all the SNF and HLW 
generated. This was because DOE's 1990 spent fuel projections, which 
assumed that no new reactors would be constructed, called for 87,000 
MTHM to be generated by 2036. The Commission believed that that 
assumption probably underestimated the expected total spent fuel 
discharges due to the likelihood of reactor license renewals.
---------------------------------------------------------------------------

    \20\ NRC identified Dresden 1, licensed in 1959, as the earliest 
licensed power reactor and noted that 30 years beyond its licensed 
life for operation would be 2029 and that it was possible, if a 
repository were to become available by 2025, for all the Dresden 1 
SNF to be removed from that facility by 2029 (55 FR 38502; September 
18, 1990).
---------------------------------------------------------------------------

    Further, the Commission expressed the belief that if the need for a 
second repository was established, Congress would provide the needed 
institutional support and funding, as it had for the first 
repository.\21\ The Commission reasoned that if work began on the 
second repository program in 2010, that repository could be available 
by 2035. Two repositories available in approximately 2025 and 2035, 
each with acceptance rates of 3400 MTHM/year within several years after 
commencement of operations, would provide assurance that sufficient 
repository capacity will be available within 30 years of operating 
license expiration for reactors to dispose of the spent fuel generated 
at their sites up to that time. The Commission concluded that a second 
repository, or additional capacity at the first repository, would be

[[Page 81062]]

needed only to accommodate the additional quantity of spent fuel 
generated during the later years of reactors operating under a renewed 
license. The Commission stated that the availability of a second 
repository would permit spent fuel to be shipped offsite well within 30 
years after expiration of these reactors' operating licenses and that 
the same would be true of the spent fuel discharged from any new 
generation of reactor designs (55 FR 38503-38504; September 18, 1990).
---------------------------------------------------------------------------

    \21\ DOE was statutorily required to report to the President and 
to Congress on the need for a second repository between January 1, 
2007, and January 1, 2010. Section 161 of NWPA, 42 U.S.C. 10172a. 
DOE submitted the report to Congress in December 2008. The report 
recommended that Congress remove the 70,000 MTHM limit for the YM 
repository, but Congress has not yet responded to the 
recommendation. The Report to the President and the Congress by the 
Secretary of Energy on the Need for a Second Repository, 1, (2008) 
available at http://www.energy.gov/media/Second_Repository_Rpt_120908.pdf (last visited October 16, 2010).
---------------------------------------------------------------------------

    The Commission acknowledged that there were several licenses that 
had been prematurely terminated where it was possible that SNF would be 
stored more than 30 years beyond the effective expiration of the 
license and that there could be more of these premature terminations. 
But the Commission remained confident that in these cases the overall 
safety and environmental impacts of extended spent fuel storage would 
be insignificant. The Commission found that spent fuel could be safely 
stored for at least 100 years (Finding 4) \22\ and that spent fuel in 
at-reactor storage would be safely maintained until disposal capacity 
at a repository was available (Finding 3). The Commission emphasized 
that it had not identified a date by which a repository must be 
available for health and safety reasons. Under the second part of 
Finding 2, safe management and safe storage would not need to continue 
for more than 30 years beyond expiration of any reactor's operating 
license because sufficient repository capacity was expected to become 
available within those 30 years (55 FR 38504; September 18, 1990).
---------------------------------------------------------------------------

    \22\ The Commission conservatively assumed that licenses would 
be renewed for 30-year terms (55 FR 38503; September 18, 1990). 
Thus, the initial 40-year term of the operating license, plus 30 
years for the renewed operating license term and 30 years beyond the 
expiration of the renewed license amounts to storage for at least 
100 years.
---------------------------------------------------------------------------

B. Evaluation of Finding 2

    As explained previously, the Commission based its estimate in 
1990--that at least one geologic repository would be available within 
the first quarter of the twenty-first century--on an assumption that 
DOE would make its suitability determination under section 114 of NWPA 
around 2000. To avoid being put in the position of assuming the 
suitability of the YM site, the Commission then assumed that DOE would 
find that site unsuitable and, as DOE had estimated, that it would take 
25 years before a repository could become available at an alternate 
site.
    The DOE made its suitability determination in early 2002 and found 
the YM site suitable for development as a repository.\23\ Although 
DOE's application for a construction authorization for a repository was 
considerably delayed from the schedule set out in the NWPA,\24\ on June 
3, 2008, the DOE submitted the application to the NRC and on September 
8, 2008, the NRC staff notified the DOE that it found the application 
acceptable for docketing (73 FR 53284; September 15, 2008). Although 
the licensing proceeding for the YM repository is ongoing, DOE and the 
Administration have made it clear that they do not support construction 
of Yucca Mountain. On March 3, 2010, the DOE filed its Notice of 
Withdrawal with the Atomic Safety and Licensing Board (ASLB) that is 
presiding over the Yucca Mountain licensing proceeding (ADAMS Accession 
Number ML100621397). On June 29, 2010, the ASLB denied the Department's 
motion; and on June 30, 2010, the Secretary of the Commission invited 
the parties to file briefs regarding whether the Commission should 
review, reverse, or uphold the ASLB's decision (ADAMS Accession Numbers 
ML101800299 and ML101810432). The Commission has not yet issued its 
decision.
---------------------------------------------------------------------------

    \23\ On February 14, 2002, the Secretary of Energy recommended 
the YM site for the development of a repository to the President 
thereby setting in motion the approval process set forth in sections 
114 and 115 of the NWPA. See 42 U.S.C. 10134(a)(1); 10134(a)(2); 
10135(b), 10136(b)(2) (2006). On February 15, 2002, the President 
recommended the site to Congress. On April 8, 2002, the State of 
Nevada submitted a notice of disapproval of the site recommendation 
to which Congress responded on July 9, 2002, by passing a joint 
resolution approving the development of a repository at YM, which 
the President signed on July 23, 2002. See Public Law 107-200, 116 
Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 2004)).
    \24\ Section 114(b) of NWPA directs the Secretary of Energy to 
submit a construction authorization application to NRC within 90 
days of the date the site designation becomes effective. 42 U.S.C. 
10134(b).
---------------------------------------------------------------------------

    In 2005, the State of Nevada filed a petition for rulemaking with 
the NRC (PRM-51-8) that questioned whether continued use of the 2025 
date, in effect, indicated prejudgment of the outcome of any licensing 
proceeding that might be held. The Commission rejected this notion in 
its denial of the petition:

    Even if DOE's estimate as to when it will tender a license 
application should slip further, the 2025 date would still allow for 
unforeseen delays in characterization and licensing. It also must be 
recognized that the Commission remains committed to a fair and 
comprehensive adjudication and, as a result, there is the potential 
for the Commission to deny a license for the Yucca Mountain site 
based on the record established in the adjudicatory proceeding. That 
commitment is not jeopardized by the 2025 date for repository 
availability. The Commission did not see any threat to its ability 
to be an impartial adjudicator in 1990 when it selected the 2025 
date even though then, as now, a repository could only become 
available if the Commission's decision is favorable. Should the 
Commission's decision be unfavorable and should DOE abandon the 
site, the Commission would need to reevaluate the 2025 availability 
date, as well as other findings made in 1990. State of Nevada; 
Denial of a Petition for Rulemaking (70 FR 48329, 48333; August 17, 
2005); affirmed, Nevada v. NRC, 199 Fed. Appx. 1 (DC Cir., Sept. 22, 
2006).

    In the absence of an unfavorable NRC decision or DOE's abandonment 
of the site, the Commission found no reason to reopen its Waste 
Confidence Decision. Now that it appears uncertain whether the YM 
project will ever be constructed, the Commission would have adequate 
reasons to reopen the Waste Confidence Decision; but the Commission, in 
any event, had already decided to revisit its decision before DOE filed 
its motion to withdraw.
    The initial decision to revisit the Waste Confidence Decision was 
supported by the recommendations of the Combined License Review Task 
Force Report. In its June 22, 2007 SRM on that report, the Commission 
approved rulemaking to resolve generic issues associated with combined 
license applications. SRM-COMDEK-07-0001/COMJSM-07-0001--Report of the 
Combined License Review Task Force (ADAMS Accession Number 
ML071760109). In a subsequent SRM, issued on September 7, 2007, the 
Commission expressed the view that a near-term update to the Waste 
Confidence Findings was appropriate. SRM--Periodic Briefing on New 
Reactor Issues (ADAMS Accession Number ML072530192). The staff, in its 
response to these SRMs, recognized that there would likely be long-term 
inefficiencies in combined license application proceedings due to the 
need to respond to potential questions and petitions directed to the 
existing Waste Confidence Decision and committed to evaluate possible 
updates to the decision.\25\ See Memorandum from Luis

[[Page 81063]]

A. Reyes, Executive Director for Operations, to the Commissioners, 
``Rulemakings that Will Provide the Greatest Efficiencies to Complete 
the Combined License Application Reviews in a Timely Manner,'' December 
17, 2007, at 3 (ADAMS Accession Number ML073390094).
---------------------------------------------------------------------------

    \25\ Challenges to 10 CFR 51.23 in individual COL proceedings 
would likely be addressed through application of 10 CFR 2.335, 
``Consideration of Commission rules and regulations in adjudicatory 
proceedings.'' This rule generally prohibits attacks on NRC rules 
during adjudicatory proceedings, but does allow a party to an 
adjudicatory proceeding to petition that application of a specified 
rule be waived or an exception made for the particular proceeding. 
10 CFR 2.335(b). The sole grounds for a waiver or exception is that 
``special circumstances with respect to the subject matter of the 
particular proceeding are such that the application of the rule or 
regulation * * * would not serve the purposes for which the rule or 
regulation was adopted.'' Id. Thus, a review of the Waste Confidence 
findings and rule now might be expected to obviate such challenges 
in individual COL proceedings.
---------------------------------------------------------------------------

    Based upon these and more recent developments, undertaking a public 
rulemaking proceeding now to consider revisions to the Waste Confidence 
Decision and Rule is appropriate and has allowed sufficient time to 
conduct a studied and orderly reassessment and to revise and update the 
findings and rule. In particular, the Commission has been able to 
consider alternative time frames (including no specific time frame) 
that would provide reasonable assurance for the availability of a 
repository. Further, the Commission does not believe that any of the 
developments since it issued its proposed update and proposed rule 
would require it to revise any of its proposed findings--the 
alternative to proposed Finding 2 that the Commission approves in this 
update to the Waste Confidence Decision was proposed as part of the 
initial proposed rulemaking and update (73 FR 59561; October 9, 2008). 
Although none of the developments in the last year requires the 
Commission to revise any of the proposed findings, the Commission does 
believe that recent developments make it imprudent to continue to 
include a target date in Finding 2. Therefore, as discussed in the 
response to Comment 9, the Commission has decided to remove the target 
date from Finding 2 and to express its confidence that a repository 
will be available when necessary. The proposed findings assumed that YM 
would not be built and that DOE would have to select a new repository 
site. The proposal to eliminate the YM project simply reinforces the 
appropriateness of revisiting the 1990 decision at this time.
    In response to developments involving YM, as well as for other 
reasons, the Secretary of Energy appointed the Blue Ribbon Commission 
on America's Nuclear Future to assess the state of SNF storage and 
disposal in the United States. Because of the decades of scientific 
studies supporting the use of a geologic repository for the disposal of 
HLW and SNF, the Commission believes that the Blue Ribbon Commission 
could conclude that geologic disposal remains the preferred course of 
action. Further, the NWPA still mandates a national repository program, 
and until the law is changed disposal in a repository remains the 
controlling policy. But if the Blue Ribbon Commission were to recommend 
an option that does not involve eventual geologic disposal of waste in 
a repository and the Congress were to amend the NWPA to change the 
national policy, then the Commission would likely have to revisit the 
Waste Confidence Decision.
    One possible approach to revising Finding 2 might be to set the 
expected availability of a new repository at a time around 25 years 
after the conclusion of the YM licensing process in accordance with 
DOE's 1990 estimate of the time it would take to make a repository 
available at a different site. But the Commission rejected this 
approach when denying the Nevada petition:

    [T]he use of a Commission acceptability finding as the basis for 
repository availability is impossible to implement because it would 
require the Commission to prejudge the acceptability of any 
alternative to Yucca Mountain in order to establish a reasonably 
supported outer date for the Waste Confidence finding. That is, if 
the Commission were to assume that a license for the Yucca Mountain 
site might be denied in 2015 and establish a date 25 years hence for 
the ``availability'' of an alternative repository (i.e., 2040), it 
would still need to presume the ``acceptability'' of the alternate 
site to meet that date (70 FR 48333; August 17, 2005).

    Another approach, which the Commission included in its proposed 
Finding 2, would be to revise the finding to include a target date or 
time frame for which it now seems reasonable to assume that a 
repository would be available. A target date for when a disposal 
facility can reasonably be expected to be available would result from 
an examination of the technical and institutional issues that would 
need to be resolved before a repository could be available. The target 
date approach would be consistent with the HLW disposal programs in 
other countries, as explained below.
    But the Commission has concerns about the use of this approach and 
has not adopted it. A target date requires the Commission to have 
reasonable assurance of when a repository will become available, and 
without the resolution of the political and societal issues associated 
with the siting and construction of a repository, the Commission cannot 
reasonably predict that a repository can and will become available 
within a specific time frame. The Commission does, however, believe 
that a repository can be constructed within 25-35 years of a Federal 
decision to construct a repository. Further, given the ongoing 
activities of the Blue-Ribbon Commission, events in other countries, 
the viability of safe long-term storage for at least 60 years (and 
perhaps longer) after reactor licenses expire, and the Federal 
Government's statutory obligation to develop a HLW repository, the 
Commission has confidence that a repository will be made available well 
before any safety or environmental concerns arise from the extended 
storage of spent nuclear fuel and high-level waste. In other words, a 
repository will be available when necessary.
    It must be emphasized that the removal of a target date from 
Finding 2 should not be interpreted as a Commission endorsement of 
indefinite storage. Instead, the Commission has confidence that the SNF 
and HLW can continue to be safely stored without significant 
environmental impacts for at least 60 years beyond the licensed life 
for operation of any nuclear power plant. The Commission is therefore 
amending Finding 2 to state that a deep geologic repository will be 
available when necessary.
    This change to Finding 2 does not affect the Commission's 
confidence that spent fuel can be safely stored with minimal 
environmental impacts. This revision reflects the Commission's 
inability to predict with precision when the societal and political 
uncertainties associated with the construction of a repository can be 
resolved; the Commission is unwilling to predict a starting point for a 
new repository program--the time to complete a repository program 
remains unchanged from the discussion in the proposed rule. As 
discussed below, the Commission continues to have confidence that a 
deep geologic disposal facility can be completed within a reasonable 
time (25-35 years) and that disposal capacity for HLW and SNF will be 
available when necessary.
    Most countries possessing HLW and SNF plan to eventually confine 
these wastes using deep geologic disposal. Currently, there are 24 
other countries considering disposal of spent or reprocessed nuclear 
fuel in deep geologic repositories. From the vantage point of near-term 
safety, there has been little urgency in these countries for 
implementing disposal facilities because of the perceived high degree 
of safety provided by interim storage, either at reactors or at 
independent storage facilities. Of these 24 countries, 10 have 
established target dates for the availability of a repository. Most of 
the 14 countries that have not established target dates rely on 
centralized interim storage, which may include a protracted

[[Page 81064]]

period of onsite storage before shipment to a centralized facility.\26\
---------------------------------------------------------------------------

    \26\ The three countries with target dates that plan direct 
disposal of SNF are: Czech Republic (2050), Finland (2020), and 
Sweden (2025). The seven countries with target dates for disposal of 
reprocessed SNF and HLW are: Belgium (2035), China (2050), France 
(2025), Germany (2025), Japan (2030s), Netherlands (2013), 
Switzerland (2042).
---------------------------------------------------------------------------

    Unlike these other countries, recent events in the United States 
(e.g., the DOE's motion to withdraw the YM application and the current 
Administration's decision to seek no funding for the YM Program) have 
not diminished the Commission's confidence that a repository is 
technologically feasible, but have diminished its confidence in the 
target-date approach. The Commission now believes that there is 
insufficient support for the continued use of a target date because of 
the difficulty associated with predicting the start-date for any 
repository program. The Commission is therefore adopting the position 
regarding the removal of a target date proposed in the ``Additional 
Question for Public Comment'' section of the proposed update (73 FR 
59567; October 9, 2008). The Commission is revising Finding 2 to state 
that it has reasonable assurance that disposal capacity in a deep 
geologic repository will become available ``when necessary.'' Although 
the Commission has declined to set a target date for the availability 
of a repository, it does believe that it would be beneficial to analyze 
the time required to successfully site, license, construct, and open a 
repository.
    The technical problems should be the same as those examined in the 
earlier Waste Confidence reviews, namely, how long it would take DOE to 
locate a suitable site and how long it would take to develop a waste 
package and engineered barriers for that site. For the reasons 
explained in the evaluation of Finding 1, the Commission continues to 
have reasonable assurance that disposal in a geologic repository is 
technically feasible. That is the approach being taken in all the 
countries identified previously that have set target dates for the 
availability of a repository. It is also the approach of the 14 other 
countries that have HLW disposal programs but have not set target 
dates.\27\ These target dates can be used to provide a reasonable idea 
of how much time is required to site, license, construct, and open a 
repository. In addition, when Congress amended the Nuclear Waste Policy 
Act in 1987 to focus exclusively on the YM site, it did so for 
budgetary reasons and not because the other sites DOE was considering 
were technically unacceptable. The ongoing research in the U.S. and 
other countries strongly suggests that many acceptable sites exist and 
can be identified.
---------------------------------------------------------------------------

    \27\ These countries are: Brazil, Canada, Hungary, Lithuania, 
Romania, South Korea, Slovak Republic, Spain (direct disposal of 
SNF); Bulgaria, India, Italy, Russia, United Kingdom, Ukraine 
(disposal of reprocessed SNF and HLW).
---------------------------------------------------------------------------

    The amount of time DOE might need to develop an alternative 
repository site would depend upon any enabling legislation, budgetary 
constraints, and the degree of similarity between a candidate site and 
other well-characterized sites with similar HLW disposal concepts. DOE 
began characterization of the YM site in 1982, made its suitability 
determination in 2002, and submitted a license application in 2008. But 
the history of potential repository development at YM may be a poor 
indicator of the amount of time needed to develop a new repository. 
Many problems extraneous to site characterization activities adversely 
affected DOE's repository program, such as changes in enabling 
legislation, public confidence issues, funding, and a significant delay 
in issuing environmental standards. In terms of the technical work 
alone, much would depend on whether Congress establishes a program 
involving characterization of many sites preliminary to the 
recommendation of a single site (similar to the 1982 NWPA) or a program 
focused on a single site (similar to the amended NWPA). The former 
would likely take longer, but might have a better chance of success if 
problems develop with a single site. The time needed to characterize 
the sites would also depend on whether the one or more sites chosen for 
characterization are similar to sites in this or other countries, which 
would allow DOE to use already existing knowledge and research to 
increase the efficiency of its repository program.
    Alternatively, the sites could present novel challenges, which 
would require more time than sites that are similar to those that have 
already been studied. There are also many ``lessons learned'' from the 
YM repository program that could help to shorten the length of a new 
program. For example, performance assessment techniques have 
significantly improved over the past 20 years (e.g., the Goldsim 
software package of DOE's Total System Performance Assessment that 
replaced the original FORTRAN based software); performance assessment 
models are now easier to develop and more reliable than those that were 
available 20 years ago. Similarly, operational and manufacturing 
techniques developed during the YM program (e.g., manufacturing of 
waste packages, excavation of drifts, waste handling), would be 
applicable to another program. Regulatory issues considered during the 
YM program (e.g., burn-up credit for nuclear fuel and seismic 
performance analysis) should provide useful information for setting new 
standards or revising current standards.\28\ Finally, the experience 
gained by completing the NRC licensing process, if that were to occur, 
should help the DOE and the NRC improve the licensing process for any 
future repositories.
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    \28\ Both NRC's 10 CFR part 63 and EPA's 40 CFR part 197 are 
applicable only for a repository at YM. NRC and EPA have in place 
standards for a repository at a different site, but these standards 
would likely be revised in a new repository program.
---------------------------------------------------------------------------

    Whether waste package and engineered barrier information developed 
during the YM repository program would be transferable to a new program 
depends on the degree of similarity between an alternative site and YM. 
The fundamental physical characteristics of Yucca Mountain are 
significantly different from other potential repository sites that were 
considered in the U.S. repository program before 1987. DOE could select 
an alternative candidate site that is similar to YM in important 
physical characteristics (such as oxidizing conditions, drifts above 
the water table with low amounts of water infiltration, water chemistry 
buffered by volcanic tuff rocks). In this instance, much of the 
existing knowledge for engineered barrier performance at YM might be 
transferable to a different site. Nevertheless, much of DOE's current 
research on engineered barriers for YM could be inapplicable if an 
alternative site has significantly different characteristics from the 
YM site, such as an emplacement horizon in reducing conditions below 
the water table. In this instance, research from other DOE, industry, 
or international programs might provide important information on 
engineered barriers, provided the new site is analogous to sites and 
engineered barriers being considered elsewhere.
    But broader institutional issues have emerged since 1990 that bear 
on the time it takes to implement geologic disposal. International 
developments have made it clear that technical experience and 
confidence in geologic disposal, on their own, are not sufficient to 
bring about the broad social and political acceptance needed to 
construct a repository. It is these issues that have caused the 
Commission to remove a target date as part of the revised Finding 2. As 
stated above, the Commission continues to have confidence that a 
repository can be constructed within

[[Page 81065]]

25-35 years of a Federal decision to do so and that a repository will 
become available when one is necessary.
    As part of its evaluation of this finding, the Commission evaluated 
the programs in a number of other countries that support its conclusion 
that a repository will be available when necessary and that siting, 
licensing, construction, and operation can occur within 25-35 years of 
a Federal decision to do so.
    In 1997, the United Kingdom rejected an application for the 
construction of a rock characterization facility at Sellafield, leaving 
the country without a path forward for long-term management or disposal 
of either intermediate-level waste or SNF. In 1998, an inquiry by the 
UK House of Lords endorsed geologic disposal, but specified that public 
acceptance was required. As a result, the UK Government embraced a 
repository plan based on the principles of voluntarism and partnership 
between communities and implementers. This led to the initiation of a 
national public consultation, and major structural reorganization 
within the UK program. The UK Nuclear Decommissioning Authority 
envisions availability of a geologic disposal facility for ILW in 2040 
and a geologic facility for SNF and HLW in 2075. In 2007, however, the 
Scottish Government officially rejected any further consultation with 
the UK Government on deep geologic disposal of HLW and SNF. This action 
by the Scottish Government effectively ends more than 7 years of 
consultations with stakeholders near Scottish nuclear installations and 
represents yet another major setback for the UK program.
    In Germany, a large salt dome at Gorleben had been under study 
since 1977 as a potential SNF repository. After decades of intense 
discussions and protests, the utilities and the government reached an 
agreement in 2000 to suspend exploration of Gorleben for at least 
three, and at most ten, years. In 2003, the Federal Ministry for the 
Environment set up an interdisciplinary expert group to identify, with 
public participation, criteria for selecting new candidate sites. In 
October, 2010 Germany resumed exploration of Gorleben as a potential 
SNF repository. A decision on whether the site is suitable for a 
repository could be reached in 2015.
    Initial efforts in France, during the 1980s, also failed to 
identify potential repository sites, using solely technical criteria. 
Failure of these attempts led to the passage of nuclear waste 
legislation that prescribed a period of 15 years of research. Reports 
on generic disposal options in clay and granite media were prepared and 
reviewed by the safety authorities in 2005. In 2006, conclusions from 
the public debate on disposal options, held in 2005, were published. 
Later that year, the French Parliament passed new legislation 
designating a single site for deep geologic disposal of intermediate 
and HLW. This facility, to be located in the Bure region of 
northeastern France, is scheduled to open in 2025, some 34 years after 
passage of the original Nuclear Waste Law of 1991.
    In Switzerland, after detailed site investigations in several 
locations, the Swiss National Cooperative for Radioactive Waste 
Disposal proposed, in 1993, a deep geologic repository for low- and 
intermediate-level waste at Wellenberg. Despite a 1998 finding by Swiss 
authorities that technical feasibility of the disposal concept was 
successfully demonstrated, a public cantonal referendum rejected the 
proposed repository in 2002. Even after more than 25 years of high 
quality field and laboratory research, Swiss authorities do not expect 
that a deep geologic repository will be available before 2040.
    In 1998, an independent panel reported to the Governments of Canada 
and Ontario on its review of Atomic Energy of Canada Ltd.'s concept of 
geologic disposal. Canadian Nuclear Fuel Waste Disposal Concept 
Environmental Assessment Panel, Report of the Nuclear Fuel Waste 
Management and Disposal Concept Environmental Assessment Panel, 
February 1998. The panel found that from a technical perspective, 
safety of the concept had been adequately demonstrated, but from a 
social perspective, it had not. The panel concluded that broad public 
support is necessary in Canada to ensure the acceptability of a concept 
for managing nuclear fuel wastes. The panel also found that technical 
safety is a key part, but only one part, of acceptability. To be 
considered acceptable in Canada, the panel found that a concept for 
managing nuclear fuel wastes must: (1) Have broad public support; (2) 
be safe from both a technical and social perspective; (3) have been 
developed within a sound ethical and social assessment framework; (4) 
have the support of Aboriginal people; (5) be selected after comparison 
with the risks, costs, and benefits of other options; and (6) be 
advanced by a stable and trustworthy proponent and overseen by a 
trustworthy regulator. Resulting legislation mandated a nationwide 
consultation process and widespread organizational reform. Eight years 
later, in 2005, a newly-created Nuclear Waste Management Organization 
(NWMO), recommended an Adaptive Phased Management approach for long-
term care of Canada's SNF, based on the outcomes of the public 
consultation. This approach includes both a technical method and a new 
management system. According to NWMO, it ``provides for centralized 
containment and isolation of used nuclear fuel deep underground in 
suitable rock formations, with continuous monitoring and opportunity 
for retrievability; and it allows sequential and collaborative 
decision-making, providing the flexibility to adapt to experience and 
societal and technological change.'' NWMO, Choosing a Way Forward: The 
Future Management of Canada's Used Nuclear Fuel, Final Study Report, 
November 2005.
    In 2007, the Government of Canada announced its selection of the 
Adaptive Phased Management approach and directed NWMO to take at least 
two years to develop a ``collaborative community-driven site-selection 
process.'' NWMO will use this process to open consultations with 
citizens, communities, Aboriginals, and other interested parties to 
find a suitable site in a willing host community. For financial 
planning and cost estimation purposes only, NWMO assumes the 
availability of a deep geological repository in 2035, 27 years after 
initiating development of new site selection criteria, 30 years after 
embarking on a national public consultation, and 37 years after 
rejection of the original geologic disposal concept. NWMO, Annual 
Report 2007: Moving Forward Together, March 2008. In 2009, NWMO 
proposed a site selection process for public comment, and after 
considering the comments and input received is now welcoming 
expressions of interest from potential host communities. NWMO, Annual 
Report 2009: Moving Forward Together, March 2010.
    Repository development programs in Finland and Sweden are further 
along than in other countries, but have nonetheless taken the time to 
build support from potential host communities. In Finland, preliminary 
site investigations started in 1986, and detailed characterizations of 
four locations were performed between 1993 and 2000. In 2001, the 
Finnish Parliament ratified the Government's decision to proceed with a 
repository project at a chosen site only after the 1999 approval by the 
municipal council of the host community. Finland expects this facility 
to begin receipt of SNF for disposal in 2020, 34 years after the start 
of preliminary site investigations.

[[Page 81066]]

    Between 1993 and 2000, Sweden conducted feasibility studies in 
eight municipalities. Based on technical considerations, one site was 
found unsuitable for further study, and two sites, based on municipal 
referenda, decided against allowing further investigations. Three of 
the remaining five sites were selected for detailed site 
investigations. Municipalities adjacent to two of these sites agreed to 
be potential hosts and one refused.
    On June 3, 2009, the Swedish Nuclear Fuel and Waste Management 
Company, SKB, selected a site near Oesthammer as the site for the final 
repository for disposal of Swedish SNF. Since 2007, detailed site 
investigations were conducted at both Oesthammer and Oskarshamn, both 
of which already host nuclear power stations. All Swedish spent fuel 
will be disposed of in the Oesthammer repository. It will be located at 
a depth of 500 meters, in crystalline bedrock that is relatively dry 
with few fractures. SKB plans to submit a license application in March 
2011, along with an Environmental Impact Assessment and safety 
analysis. A government decision is expected in 2015. If Swedish 
authorities authorize construction, the repository could be available 
for disposal around 2025, some 30 years after feasibility studies 
began.
    Before DOE can start the development of a new site, Congress may 
need to provide additional direction, beyond the current NWPA, for the 
long-term management and disposal of SNF and HLW. Whatever approach 
Congress mandates, international experience since 1990 would appear to 
suggest that greater attention may need to be paid to developing 
societal and political acceptance in concert with essential technical, 
safety, and security assurances. While there is no technical basis for 
making precise estimates of the minimum time needed to accomplish these 
objectives, examination of the international examples cited previously 
would support a range of between 25 and 35 years. The Commission 
believes that societal and political acceptance must occur before a 
successful repository program can be completed, and that this is 
unlikely to occur until a Federal decision is made, whether for 
technical, environmental, political, legal, or societal reasons, that 
will allow the licensing and construction of a repository to proceed.
    Another important institutional issue is whether funding for a new 
repository program is likely to be available. The provisions of NWPA 
for funding the repository have proved to be adequate for the timely 
development of a repository in the sense that there have always been 
more than sufficient funds available to meet the level of funding 
Congress appropriates for the repository program. Section 302(e)(2) of 
NWPA provides that the Secretary of Energy may make expenditures from 
the Nuclear Waste Fund (NWF), subject to appropriations by the 
Congress. In her July 27, 2010 statement to the Committee on the 
Budget, Kristina M. Johnson, Undersecretary of Energy, testified that 
the NWF has a balance of approximately $25 billion. Thus, the NWF has 
the capacity to ensure timely development of a repository consistent 
with Congressional funding direction. Moreover, DOE has prepared 
updated contracts and a number of utility companies have signed 
contracts with the Department that provide for payment into the NWF 
(See, e.g., ADAMS Accession Numbers ML100280755 and ML083540149). 
Therefore, there will be a source of funding for disposal of the fuel 
to be generated by these reactors.
    Arriving at an estimate of the time necessary to successfully 
construct a repository involves considering the technical and 
institutional factors discussed previously. It appears that the 
technical work needed to make a repository available could be done in 
less time than it took DOE to submit a license application for the YM 
site (26 years measured from the beginning of site characterization). 
But as discussed previously, the time needed to develop societal and 
political acceptance of a repository might range between 25 and 35 
years. Therefore, once a decision is made that it is necessary to 
construct a repository, it is likely that a repository could be sited, 
licensed, constructed, and in operation within 25-35 years.
    Finding 2, as adopted in 1990, also predicts 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 HLW and SNF originating 
in such reactor and generated up to that time. As explained previously, 
in 1990 DOE projected that 87,000 MTHM would be generated by 2036. 
Given the statutory limit of 70,000 MTHM for the first repository, 
either statutory relief from that limit or a second repository would be 
needed. The Commission's continued confidence that sufficient 
repository capacity would be available within 30 years of license 
expiration of all reactors rested on an assumption that two 
repositories would be available in approximately 2025 and 2035, each 
with acceptance rates of 3400 MTHM/year within several years after 
commencement of operations (See 55 FR 38502; September 18, 1990). DOE 
acknowledged that a second repository, or an expansion of the statutory 
disposal limit for a single repository, would be necessary to 
accommodate all the spent fuel from the currently operating and future 
reactors. The Report to the President and the Congress by the Secretary 
of Energy on the need for a second repository, 1, (2008), available at 
http://brc.gov/library/docs/Second_Repository_Rpt_120908.pdf (last 
visited September 17, 2010).
    The revision to Finding 2 in this update to the Waste Confidence 
Decision reflects the Commission's concern that it may no longer be 
possible to have reasonable assurance that sufficient repository space 
will be available within 30 years beyond the licensed life for 
operation (which may include the term of a revised or renewed 
license).\29\ According to the NRC's ``High-Value Datasets'', there are 
14 reactor operating licenses that will expire between 2012 and 2020 
and an additional 36 licenses that will expire between 2021 and 2030. 
NRC High-Value Datasets, http://www.nrc.gov/public-involve/open.html#datasets (last visited October 8, 2010). Many of these 
licenses could be renewed, which would extend their operating 
lifetimes, but this cannot be assumed.\30\ For licenses that are not 
renewed, some spent fuel will need to be stored for more than 30 years 
beyond the expiration of the license if a repository is not available 
until after 2025. There are 23 reactors that were formerly licensed to 
operate by the NRC or the AEC and have been permanently shut down. Id. 
Thirty years beyond their licensed life of operation will come as early 
as 2029 for Dresden 1 and as late as 2056 for Millstone 1; but for many 
of these plants, 30 years beyond the licensed life for operation will 
occur in the 2030s and 2040s. Given the time necessary to successfully 
complete a repository program--25-35 years--and the uncertainty 
surrounding the start date of this program, it is likely that spent 
fuel will have to be stored beyond

[[Page 81067]]

30 years after the expiration of the license at a number of these 
plants.
---------------------------------------------------------------------------

    \29\ Based on the inventory of SNF in nuclear power plant pools 
and interim storage facilities, the amount of spent fuel is 
anticipated to exceed the 70,000 MTHM disposal limit in the NWPA by 
2010. See The Report to the President and the Congress by the 
Secretary of Energy on the Need for a Second Repository, DOE/RW-
0595, December 2008. Therefore, a new repository program would need 
to remove this limit or provide for more than one repository.
    \30\ Seven of the licenses that will expire between 2021 and 
2030 are renewed licenses (Dresden 2, Ginna, Nine Mile Point 1, 
Robinson 2, Point Beach 1, Monticello, and Oyster Creek). Fifty-two 
other reactor operating licenses have been renewed and the renewed 
licenses will expire after 2030.
---------------------------------------------------------------------------

    In 1990, the Commission emphasized that this 30 year period did not 
establish a safety limit on the length of SNF and HLW storage. It was 
only an estimate of how long SNF might need to be stored given the 
Commission's confidence that repository disposal would be available by 
2025. In fact, the Commission said it was not concerned about the fact 
that it was already clear in 1990 that a few reactors would need to 
store spent fuel onsite beyond 30 years after the effective expiration 
date of their licenses (i.e., the date the license prematurely 
terminated) due to its confidence in the safety of spent fuel storage 
(55 FR 38503; September 18, 1990). For the reasons presented in the 
evaluation of Finding 4, the Commission is now able to conclude that 
there is no public health and safety or environmental concern if the 
availability of a disposal facility results in the need to store fuel 
at some reactors for 60 years after expiration of the license or even 
longer.
    If the Commission had not already issued a proposed rule and update 
to the Waste Confidence Decision, then the Administration's proposed 
budget and plan to terminate the YM project and DOE's filing of a 
motion to withdraw would likely have forced it to do so. The 
Commission's proposed update to the Waste Confidence Decision, although 
it could not consider these yet-to-occur developments, did assume that 
YM would not be built and that DOE would have to search for another 
repository location, which now appears quite possible.
    The Commission has, in sum, reconsidered the use of a target date 
and, as discussed above, has elected to remove the target date from 
Finding 2 and adopt a finding that deep geologic disposal will be 
available ``when necessary.'' This change adopts the alternative 
approach presented in the proposed update to the Waste Confidence 
Decision to revise Finding 2 without reference to a time frame for the 
availability of a repository (73 FR 59561; October 9, 2008). As 
discussed in the proposed update, this revision to Finding 2 is based 
both on the Commission's understanding of the technical issues involved 
and on predictions of the time needed to bring about the necessary 
societal and political acceptance for a repository site. Id. Because 
the Commission cannot predict when this societal and political 
acceptance will occur, it is unable to express reasonable assurance in 
a specific target date for the availability of a repository.
    Based on the above information and consideration of the public 
comments, the Commission revises Finding 2 to eliminate its expectation 
that a repository will be available within the first quarter of the 
twenty-first century and to state that a repository may reasonably be 
expected to be available when necessary.

C. Finding 2

    The Commission finds reasonable assurance that sufficient mined 
geologic repository capacity will be available to dispose of the 
commercial high-level radioactive waste and spent fuel generated in any 
reactor when necessary.

III. Finding 3: The Commission Finds Reasonable Assurance That HLW and 
Spent Fuel Will Be Managed in a Safe Manner Until Sufficient Repository 
Capacity Is Available To Assure the Safe Disposal of all HLW and Spent 
Fuel

A. Bases for Finding 3

    The Commission reached this finding in 1984 and reaffirmed it in 
1990. This finding focuses on whether reactor licensees can be expected 
to safely store their spent fuel in the period between the cessation of 
reactor operations and the availability of repository capacity for 
their fuel. The Commission found that the spent fuel would be managed 
safely because, under either a possession-only 10 CFR part 50 license 
or a 10 CFR part 72 license, the utility would remain under the NRC's 
regulatory control and inspections and oversight of storage facilities 
would continue (49 FR 34679-34680; August 31, 1984, 55 FR 38508; 
September 18, 1990). In 1990, when extended storage at the reactor site 
seemed more probable, the Commission noted that 10 CFR part 72 allowed 
for license renewals and that the NRC was considering issuance of a 
general 10 CFR part 72 license under which spent fuel could be stored 
in NRC-certified casks (55 FR 38508; September 18, 1990).\31\ The 
Commission reasoned that these regulations would provide additional NRC 
supervision of spent fuel management. The Commission was not concerned 
about then-looming contractual disputes between the DOE and the 
utilities over the DOE's inability to remove spent fuel from reactor 
sites in 1998 because NRC licensees cannot abandon, and remain 
responsible for, spent fuel in their possession (55 FR 38508; September 
18, 1990).
---------------------------------------------------------------------------

    \31\ 10 CFR Part 72 was, in fact, amended to provide for storage 
of spent fuel in NRC-certified casks under a general license (55 FR 
29191; July 18, 1990).
---------------------------------------------------------------------------

    The Commission also considered the unusual case where a utility was 
unable to manage its spent fuel. If a utility were to become insolvent, 
the Commission believes that the cognizant state public utility 
commission would require an orderly transfer to another entity, which 
could be accomplished if the new entity satisfied the NRC's 
requirements (49 FR 34680; August 31, 1984). Further, the Commission 
expressed the view that, while the possibility of a need for Federal 
action to take over stored spent fuel from a defunct utility or from a 
utility that lacked technical competence to assure safe storage was 
remote, the authority for this type of action exists in sections 186c 
and 188 of the Atomic Energy Act. Id.

B. Evaluation of Finding 3

    As explained above, the focus of Finding 3 is on whether reactor 
licensees can be expected to safely store their spent fuel in the 
period between the cessation of reactor operations and the availability 
of repository capacity for their fuel. In this regard, the NRC is 
successfully regulating four decommissioned reactor sites that continue 
to hold 10 CFR part 50 licenses and consist only of an ISFSI under the 
10 CFR part 72 general license provisions.\32\ In addition, the NRC 
staff has discussed plans to build and operate ISFSIs under the 10 CFR 
part 72 general license provisions with the licensees at the La Crosse 
and Zion plants, which are currently undergoing decommissioning. The La 
Crosse plant plans to load its ISFSI in July 2011 and the Zion plant is 
discussing its plans with the NRC staff. The NRC is also successfully 
regulating ISFSIs at two fully decommissioned reactor sites (Trojan and 
Ft. St. Vrain) under 10 CFR Part 72 specific licenses.\33\
---------------------------------------------------------------------------

    \32\ These reactor sites include Maine Yankee, Yankee Rowe, 
Connecticut Yankee (also known as Haddam Neck), and Big Rock Point.
    \33\ There are several additional sites with specific Part 72 
ISFSI licenses that are in the process of decommissioning (e.g., 
Humbolt Bay, Rancho Seco).
---------------------------------------------------------------------------

    The NRC monitors the performance of ISFSIs at decommissioned 
reactor sites by conducting periodic inspections that are identical to 
ISFSI inspections at operating reactor sites. When conducting 
inspections at these ISFSIs, NRC inspectors follow the guidance in NRC 
Inspection Manual Chapter 2690, ``Inspection Program for Dry Storage of 
Spent Reactor Fuel at Independent Spent Fuel Storage Installations and 
for 10 CFR part 71 Transportation Packages.'' At all six decommissioned 
reactor sites mentioned previously, all

[[Page 81068]]

spent fuel on site has been successfully loaded into the ISFSI; only 
those inspection procedures applicable to the existing storage 
configurations are conducted. Also, any generally licensed ISFSI where 
decommissioning and final survey activities related to reactor 
operations have been completed is treated as an ``away from reactor'' 
(AFR) ISFSI for inspection purposes. Therefore, those programs that 
rely upon a 10 CFR part 50 license for the operation of a generally 
licensed ISFSI are also subject to inspection.
    The NRC has not encountered any management problems associated with 
the ISFSIs at these six decommissioned reactor sites. Further, the 
NRC's inspection findings have not found any unique management problems 
at any currently operating ISFSI. Generally, the types of issues 
identified through NRC inspections of ISFSIs are similar to issues 
identified for 10 CFR part 50 licensees. Most issues are identified 
early in the operational phase of the dry cask storage process, during 
loading preparations and actual spent fuel loading activities. Once a 
loaded storage cask is placed on the storage pad, relatively few 
inspection issues are identified due to the passive nature of these 
facilities.
    Further, the NRC's regulations require that every nuclear power 
reactor operating license issued under 10 CFR part 50 and every COL 
issued under 10 CFR part 52 must contain a condition requiring each 
licensee to submit written notification to the Commission of the 
licensee's plan for managing irradiated fuel between cessation of 
reactor operation and the time the DOE takes title to and possession of 
the irradiated fuel for ultimate disposal in a repository. The 
submittal, required by 10 CFR 50.54(bb), must include information on 
how the licensee intends to provide funding for the management of its 
irradiated fuel. Specifically, 10 CFR 50.54(bb) requires the licensee 
to:

    [W]ithin 2 years following permanent cessation of operation of 
the reactor or 5 years before expiration of the reactor operating 
license, whichever occurs first, submit written notification to the 
Commission for its review and preliminary approval of the program by 
which the licensee intends to manage and provide funding for the 
management of all irradiated fuel at the reactor following permanent 
cessation of operation of the reactor until title to the irradiated 
fuel and possession of the fuel is transferred to the Secretary of 
Energy for its ultimate disposal * * *. Final Commission review will 
be undertaken as part of any proceeding for continued licensing 
under part 50 or 72 of this chapter. The licensee must demonstrate 
to NRC that the elected actions will be consistent with NRC 
requirements for licensed possession of irradiated nuclear fuel and 
that the actions will be implemented on a timely basis. Where 
implementation of such actions requires NRC authorizations, the 
licensee shall verify in the notification that submittals for such 
actions have been or will be made to NRC and shall identify them. A 
copy of the notification shall be retained by the licensee as a 
record until expiration of the reactor operating license. The 
licensee shall notify the NRC of any significant changes in the 
proposed waste management program as described in the initial 
notification.

    To date, the NRC has also renewed four specific 10 CFR part 72 
ISFSI licenses. These renewals include the part 72 specific licenses 
for the General Electric Morris Operation (the only wet, or pool-type 
ISFSI), as well as the Surry, H.B. Robinson, and Oconee ISFSIs. 
Additionally, the NRC received a renewal application for the Fort St. 
Vrain ISFSI on November 23, 2009. Specific licenses for six additional 
ISFSIs will expire between 2012 and 2020. It is expected that license 
renewals will be requested by these licensees, unless a permanent 
repository or some other interim storage option is made available.
    Although the NRC staff's experience with renewal of ISFSI licenses 
is limited to these four cases, it is noteworthy that the Surry, H.B. 
Robinson and Oconee ISFSI licenses were renewed for a period of 40 
years, instead of the 20-year renewal period currently provided for 
under 10 CFR part 72. The Commission authorized the staff to grant 
exemptions to allow the 40-year renewal period after the staff reviewed 
the applicants' evaluations of aging effects on the structures, 
systems, and components important to safety. The Commission determined 
that the evaluations, supplemented by the licensees' aging management 
programs, provide reasonable assurance of continued safe storage of 
spent fuel in these ISFSIs. See SECY-04-0175, ``Options for Addressing 
the Surry Independent Spent Fuel Storage Installation License-Renewal 
Period Exemption Request,'' September 28, 2004 (ADAMS Accession Number 
ML041830697).
    With regard to generally licensed ISFSIs, the NRC staff submitted a 
draft final rule to the Commission on May 3, 2010, to clarify the 
processes for the renewal of ISFSIs operated under the general license 
provisions of 10 CFR part 72 and for renewal of the CoC for dry cask 
storage systems. See SECY 10-0056, ``Final Rule: 10 CFR Part 72 License 
and Certificate of Compliance Terms (RIN 3150-A109)'' (ADAMS Accession 
Number ML100710052). There are currently nine sites operating generally 
licensed ISFSIs that will reach the prescribed 20-year limit on storage 
between 2013 and 2020.
    The Commission concludes that the events that have occurred since 
the last formal review of the Waste Confidence Decision in 1990 support 
a continued finding of reasonable assurance that HLW and spent fuel 
will be managed in a safe manner until sufficient repository capacity 
is available. Specifically, the NRC has continued its regulatory 
control and oversight of spent fuel storage at both operating and 
decommissioned reactor sites, through both specific and general 10 CFR 
part 72 licenses. With regard to general 10 CFR part 72 licenses, the 
NRC has successfully implemented a general licensing and cask-
certification program, as envisioned by the Commission in 1990. There 
are currently 16 certified spent fuel storage cask designs. 10 CFR 
72.214 (2010). In addition, the Commission's reliance on the license 
renewal process in its 1990 review has proven well-placed, with three 
specific 10 CFR part 72 ISFSI licenses having been successfully renewed 
for an extended 40-year renewal period, and a fourth having been 
renewed for a period of 20 years. NRC licensees have continued to meet 
their obligation to safely store spent fuel in accordance with the 
requirements of 10 CFR parts 50 and 72.\34\
---------------------------------------------------------------------------

    \34\ Section 302 of NWPA authorizes the Secretary of Energy to 
enter into contracts with utilities generating HLW and SNF under 
which the utilities are to pay statutorily imposed fees into the NWF 
in return for which the Secretary, ``beginning not later than 
January 31, 1998, will dispose of the [HLW] or [SNF] involved * * 
*.'' 42 U.S.C. 10222(a)(5)(B). The NWPA also prohibits NRC from 
issuing or renewing a reactor operating license unless the 
prospective licensee has entered into a contract with DOE or is 
engaged in good-faith negotiations for a contract. 42 U.S.C. 
10222(b)(1). When it became evident that a repository would not be 
available in 1998, DOE took the position that it did not have an 
unconditional obligation to accept the HLW or SNF in the absence of 
a repository. See Final Interpretation of Nuclear Waste Acceptance 
Issues (60 FR 21793; May 3, 1995). The U.S. Court of Appeals for the 
District of Columbia Circuit, however, held that DOE's statutory and 
contractual obligation to accept the waste no later than January 31, 
1998, was unconditional. Indiana Michigan Power Co. v. DOE, 88 F.3d 
1272 (DC Cir. 1996). Subsequently, the utilities have continued to 
safely manage the storage of SNF in reactor storage pools and in 
ISFSIs and have received damage awards as determined in lawsuits 
brought before the U.S. Court of Federal Claims. See, e.g., System 
Fuels Inc. v. U.S., 78 Fed. Cl. 769 (October 11, 2007).
---------------------------------------------------------------------------

    Based on the above discussion, including its response to the public 
comments, the Commission reaffirms Finding 3.

[[Page 81069]]

IV. Finding 4 (1990): 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 Independent Spent Fuel Storage 
Installations

A. Bases for Finding 4

    This finding focuses on the safety and environmental effects of 
long-term storage of spent fuel. In 1984, the Commission found that 
spent fuel can be stored safely and without significant environmental 
impacts for at least 30 years beyond the expiration of reactor 
operating licenses (49 FR 34660; August 31, 1984). In 1990, the 
Commission determined that if the reactor operating license were 
renewed for 30 years,\35\ storage would be safe and without 
environmental significance for at least 30 years beyond the term of 
licensed operation for a total of at least 100 years (55 FR 38513; 
September 18, 1990). The Commission looked at four broad issues in 
making this finding: (1) The long-term integrity of spent fuel under 
water pool storage conditions, (2) the structure and component safety 
for extended facility operation for storage of spent fuel in water 
pools, (3) the safety of dry storage, and (4) the potential risks of 
accidents and acts of sabotage at spent fuel storage facilities (49 FR 
34681; August 31, 1984; 55 FR 38509; September 18, 1990).
---------------------------------------------------------------------------

    \35\ Subsequently, the Commission limited the renewal period for 
power reactor licenses to 20 years beyond expiration of the 
operating license or combined license (10 CFR 54.31; 56 FR 64943, 
64964; December 13, 1991).
---------------------------------------------------------------------------

    With respect to the safety of water pool storage, the Commission 
found in 1984 that research and experience in the United States, 
Canada, and other countries confirmed that long-term storage could be 
safely undertaken (49 FR 34681-34682; August 31, 1984). In 1990, the 
Commission determined that experience with water storage of spent fuel 
continued to confirm that pool storage is a benign environment for 
spent fuel that does not lead to significant degradation of spent fuel 
integrity and that the water pools in which the assemblies are stored 
will remain safe for extended periods. Further, degradation mechanisms 
are well understood and allow time for appropriate remedial action (55 
FR 38509-38511; September 18, 1990). In sum, based on both experience 
and scientific studies, the Commission found wet storage to be a fully-
developed technology with no associated major technical problems.
    In 1984, the Commission based its confidence in the safety of dry 
storage on an understanding of the material degradation processes, 
derived largely from technical studies, together with the recognition 
that dry storage systems are simple and easy to maintain (49 FR 34683-
34684; August 31, 1984). By 1990, the NRC and ISFSI licensees had 
considerable experience with dry storage. NRC staff safety reviews of 
topical reports on storage system designs, the licensing and inspection 
of dry storage at two reactor sites under 10 CFR part 72, and the NRC's 
promulgation of an amendment to 10 CFR part 72 that incorporated a 
monitored retrievable storage installation (MRS) (a dry storage 
facility) into the regulations confirmed the 1984 conclusions on the 
safety of dry storage. In fact, under the environmental assessment for 
the amendment (NUREG-1092), the Commission found confidence in the 
safety and environmental insignificance of dry storage at an MRS for 70 
years following a period of 70 years of storage in spent fuel storage 
pools (55 FR 38509-38513; September 18, 1990).
    The Commission also found that the risks of major accidents at 
spent fuel storage pools resulting in offsite consequences were remote 
because of the secure and stable character of the spent fuel in the 
storage pool environment and the absence of reactive phenomena--
``driving forces''--that might result in dispersal of radioactive 
material. The Commission noted that storage pools and ISFSIs are 
designed to safely withstand accidents caused by either natural or man-
made phenomena, and that, due to the absence of high temperature and 
pressure conditions, human error does not have the capability to create 
a major radiological hazard to the public (49 FR 34684-34685; August 
31, 1984). By 1990, the NRC staff had spent several years studying 
catastrophic loss of reactor spent fuel pool water, which could cause a 
fuel fire in a dry pool and concluded that because of the large 
inherent safety margins in the design and construction of a spent fuel 
pool no action was needed to further reduce the risk (55 FR 38511; 
September 18, 1990).
    In 1984, the Commission recognized that the intentional sabotage of 
a storage pool was theoretically possible, but found that the 
consequences would be limited because, with the exception of some 
gaseous fission products, the radioactive content of spent fuel is in 
the form of solid ceramic material encapsulated in high-integrity metal 
cladding and stored underwater in a reinforced concrete structure (49 
FR 34685; August 31, 1984). Under these conditions, the Commission 
noted that the radioactive content of spent fuel is relatively 
resistant to dispersal to the environment. Similarly, because of the 
weight and size of the sealed protective enclosures, dry storage of 
spent fuel in dry wells, vaults, silos, and metal casks is also 
relatively resistant to sabotage and natural disasters. Id. Although 
the 1990 decision examined several studies of accident risk, no 
considerations affected the Commission's confidence that the 
possibility of a major accident or sabotage with offsite radiological 
impacts at a spent fuel storage facility is extremely remote (55 FR 
38512; September 18, 1990).
    Finally, the Commission noted that the generation and onsite 
storage of more spent fuel as a result of reactor license renewals 
would not affect the Commission's findings on environmental impacts. 
Finding 4 is not based on a determination of a specific number of 
reactors and amount of spent fuel; Finding 4 evaluates the safety of 
spent fuel storage and lack of environmental impacts overall. Further, 
individual license renewal actions are subject to separate safety and 
environmental reviews (55 FR 38512; September 18, 1990).

B. Evaluation of Finding 4

    As discussed above, Finding 4 focuses on the safety and 
environmental significance of long-term storage of spent fuel. 
Specifically, the Commission examined four broad issues in making this 
finding: (1) The long-term integrity of spent fuel under water pool 
storage conditions; (2) the structure and component safety for extended 
facility operation for storage of spent fuel in water pools; (3) the 
safety of dry storage; and (4) the potential risks of accidents and 
acts of sabotage at spent fuel storage facilities.
1. Storage in Spent Fuel Pools
    Since 1990, the NRC has continued its periodic examination of spent 
fuel pool storage to ensure that adequate safety is maintained and that 
there are no adverse environmental effects from the storage of spent 
fuel in pools. The Office of Nuclear Reactor Regulation (NRR) and the 
former Office for Analysis and Evaluation of Operational Data 
independently evaluated the safety of spent fuel pool storage, and the 
results of these evaluations were documented in a memorandum to the 
Commission dated July 26, 1996, ``Resolution of Spent Fuel Storage Pool 
Action Plan

[[Page 81070]]

Issues,'' (ADAMS Accession Number ML003706364) and a separate 
memorandum to the Commission dated October 3, 1996, ``Assessment of 
Spent Fuel Pool Cooling,'' (ADAMS Accession Number ML003706381) (later 
published as NUREG-1275, Vol. 12, ``Operating Experience Feedback 
Report: Assessment of Spent Fuel Cooling,'' February 1997). As a result 
of these studies, the NRC staff and industry identified a number of 
follow-up activities that are described by the NRR staff in a memo to 
the Commission dated September 30, 1997, ``Followup Activities on the 
Spent Fuel Pool Action Plan,'' (ADAMS Accession Number ML003706412). 
These evaluations became part of the investigation of Generic Safety 
Issue 173, ``Spent Fuel Pool Storage Safety,'' which found that the 
relative risk posed by loss of spent fuel cooling is low when compared 
with the risk of events not involving the SFP.
    The safety and environmental effects of spent fuel pool storage 
were also addressed in conjunction with regulatory assessments of 
permanently shutdown nuclear plants and decommissioning nuclear power 
plants. NUREG/CR-6451, ``A Safety and Regulatory Assessment of Generic 
BWR and PWR Permanently Shutdown Nuclear Power Plants,'' (August 1997) 
addressed the appropriateness of regulations (e.g., requirements for 
emergency planning and insurance) associated with spent fuel pool 
storage. The study identified a number of regulations that apply only 
to an operating reactor and not to spent fuel storage. These 
regulations are not needed to ensure the safe maintenance of a 
permanently shutdown plant. The study also provided conservative 
bounding estimates of fuel coolability and offsite consequences for the 
most severe accidents, which involve draining of the spent fuel pool.
    More recently, the NRC issued NUREG-1738, ``Technical Study of 
Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power 
Plants,'' (February 2001), which provides a newer and more robust 
analysis of the safety and environmental effects of spent fuel pool 
storage. This study provided the results of the NRC staff's latest 
evaluation of the accident risk in a spent fuel pool at decommissioning 
plants. The report discussed fuel coolability for various types of 
accidents and included potential offsite consequences based on assumed 
radiation releases. The study demonstrated that by using conservative 
and bounding assumptions regarding the postulated accidents, the 
predicted risk estimates were below those associated with reactor 
accidents and well below the Commission's safety goal.
    Following the terrorist attacks of September 11, 2001, the NRC 
undertook an extensive reexamination of spent fuel pool safety and 
security issues. This reexamination included a significantly improved 
methodology, based on detailed state-of-the-art analytical modeling, 
for assessing the response of spent fuel assemblies during security 
events including those that might result in draining of the spent fuel 
pool. This more detailed and realistic analytical modeling was also 
supported by extensive testing of zirconium oxidation kinetics in an 
air environment and full scale coolability and ``zirc fire'' testing of 
spent fuel assemblies. This effort both confirmed the conservatism of 
past analyses and provided more realistic analyses of fuel coolability 
and potential responses during accident or security event conditions. 
Importantly, the new more detailed and realistic modeling led to the 
development of improvements in spent fuel safety, which were required 
to be implemented at spent fuel pools by the Commission for all 
operating reactor sites. (See 73 FR 46204; August 8, 2008).
    In 2003, the U.S. Congress asked the NAS to provide independent 
scientific and technical advice on the safety and security of 
commercial SNF storage, including the potential safety and security 
risks of SNF presently stored in cooling pools and dry casks at 
commercial nuclear reactor sites. In July 2004, the NAS issued a 
classified report--a publicly available unclassified summary was made 
available in 2006 (as noted above, the unclassified summary of the NAS 
report can be purchased or downloaded for free by accessing the NAS Web 
site at: http://www.nap.edu/catalog.php?record_id=11263). As part of 
the information gathering for the study, the NRC and Sandia National 
Laboratories briefed the NAS authoring committee on the ongoing work to 
reassess spent fuel pool safety and security issues. The NAS report 
contains findings and recommendations for reducing the risk of events 
involving spent fuel pools as well as dry casks. NRC Chairman Nils J. 
Diaz provided the Commission's response to the NAS in a letter to 
Senator Pete V. Domenici, dated March 14, 2005 (ADAMS Accession Number 
ML050280428) (Diaz Letter). In essence, the NRC concluded, as a result 
of its own study and subsequent regulatory actions, that it had adopted 
the important recommendations of the report relevant to spent fuel 
pools. As a result of the improvements in spent fuel pool safety and 
security, and the inherent safety and robustness of spent fuel pool 
designs, the NRC concluded that the risk associated with security 
events at spent fuel pools is acceptably low. Because these safety 
improvements in spent fuel pool storage are applicable to non-security 
events (randomly initiated accidents), accident risk was also further 
reduced.
    While the Commission continues to have reasonable assurance that 
storage in spent fuel pools provides adequate protection of public 
health and safety and the common defense and security, and will not 
result in significant impacts on the environment, the NRC acknowledges 
several incidents of groundwater contamination originating from leaking 
reactor spent fuel pools and associated structures. In 1990, the 
Commission specifically acknowledged two incidents where radioactive 
water leaked from spent fuel pools, one of which resulted in 
contamination outside of the owner controlled area (See 55 FR 38511; 
September 18, 1990). The Commission addressed these events stating, 
``[t]he occurrence of operational events like these have been addressed 
by the NRC staff at the plants listed. The staff has taken inspection 
and enforcement actions to reduce the potential for such operational 
occurrences in the future.'' Id.
    On March 10, 2006, the NRC Executive Director for Operations 
established the Liquid Radioactive Release Lessons Learned Task Force 
in response to incidents at several plants involving unplanned, 
unmonitored releases of radioactive liquids into the environment. 
Liquid Radioactive Release Lessons Learned Task Force Final Report, 
September 1, 2006 (Task Force Report) (ADAMS Accession Number 
ML062650312). One of the incidents that prompted formation of the Task 
Force involved leaks from the Unit 1 and 2 spent fuel pools at Indian 
Point.\36\ Task Force Report, at 1, 5-6, 11.

[[Page 81071]]

The Task Force reviewed historical data on inadvertent releases of 
radioactive liquids, including four additional incidents involving 
leaks from spent fuel pools (Seabrook, Salem, Watts Bar, and Palo 
Verde). As a result of its review, the Task Force concluded that 
``[b]ased on bounding dose calculations and/or actual measurements, the 
near-term public health impacts have been negligible for the events at 
NRC-licensed operating power facilities discussed in this report.'' 
Task Force Report, at 15. While concluding that near-term public health 
impacts from the leaks the NRC had investigated were negligible, the 
Task Force also recommended that measures be taken to avoid leaks in 
the future. The Task Force made 26 specific recommendations for 
improvements to the NRC's regulatory programs concerning unplanned or 
unmonitored releases of radioactive liquids from nuclear power 
reactors.
---------------------------------------------------------------------------

    \36\ In May 2008, the NRC staff completed an inspection at 
Indian Point Units 1 and 2. NRC Inspection Report Nos. 05000003/
2007010 and 05000247/2007010, May 13, 2008 (ADAMS Accession Number 
ML081340425). The purpose of the inspection was to assess Entergy's 
site groundwater characterization conclusions and the radiological 
significance of Entergy's discovery of spent fuel pool leaks at 
Units 1 and 2. The NRC staff concluded that Entergy's response to 
the spent fuel pool leaks was reasonable and technically sound. The 
NRC staff stated that ``[t]he existence of onsite groundwater 
contamination, as well as the circumstances surrounding the causes 
of leakage and previous opportunities for identification and 
intervention, have been reviewed in detail. Our inspection 
determined that public health and safety has not been, nor is likely 
to be, adversely affected, and the dose consequence to the public 
that can be attributed to current onsite conditions associated with 
groundwater contamination is negligible.'' Id.
---------------------------------------------------------------------------

    The NRC staff has addressed, or is in the process of addressing, 
the Task Force recommendations. See ``Liquid Release Task Force 
Recommendations Implementation Status as of February 26, 2008'' (ADAMS 
Accession Number ML073230982) (Implementation Status). Actions taken in 
response to Task Force recommendations included revisions to several 
guidance documents, development of draft regulatory guidance on 
implementation of the requirements of 10 CFR 20.1406 (i.e. DG-
4012),\37\ revisions to Inspection Procedure 71122.01, and an 
evaluation of whether further action was required to enhance the 
performance of SFP tell-tale drains.\38\
---------------------------------------------------------------------------

    \37\ DG-4012 was formally issued as Regulatory Guide 4.21, 
``Minimization of Contamination and Radioactive Waste Generation: 
Life-Cycle Planning'' in June 2008.
    \38\ In addition to the NRC's efforts, the nuclear industry 
collectively responded to these incidents of unplanned, unmonitored 
releases of radioactive liquids through the Industry Initiative on 
Groundwater Protection. The Industry Initiative has resulted in 
publication of voluntary industry guidance on the implementation of 
groundwater protection programs at nuclear power plants. See 
``Industry Ground Water Protection Initiative-Final Guidance 
Document,'' NEI-07-07, August 2007 (ADAMS Accession Number 
ML072610036); ``Groundwater Protection Guidelines for Nuclear Power 
Plants: Public Edition, EPRI, Palo Alto, CA: EPRI Doc. No. 1016099, 
2008.
---------------------------------------------------------------------------

    For example, Regulatory Guide 4.1 is being revised to provide 
guidance to industry for detecting, evaluating, and monitoring releases 
from operating facilities via unmonitored pathways; to ensure 
consistency with current industry standards and commercially available 
radiation detection methodology; to clarify when a licensee's 
radiological effluent and environmental monitoring programs should be 
expanded based on data or environmental conditions; and to ensure that 
leaks and spills are detected before radionuclides migrate offsite via 
an unmonitored pathway. Also, Regulatory Guide 1.21 is being revised to 
provide a definition of ``significant contamination'' that should be 
documented in a licensee's decommissioning records under 10 CFR 
50.75(g); to clarify how to report summaries of spills and leaks in a 
licensee's Annual Radioactive Effluent Release Report; to provide 
guidance on remediation of onsite contamination; and to upgrade the 
capability and scope of the in-plant radiation monitoring system to 
include additional monitoring locations and the capability to detect 
lower risk radionuclides. Further, Inspection Procedure 71122.01 has 
been revised to provide for review of onsite contamination events, 
including events involving groundwater; evaluation of effluent pathways 
so that new pathways are identified and placed in the licensee's 
Offsite Dose Calculation Manual, as applicable; and inclusion of 
limited, defined documentation of significant radioactive releases to 
the environment in inspection reports for those cases where such events 
would not normally be documented under current inspection guidance. See 
Implementation Status (ADAMS Accession Numbers ML073230982 and 
ML020730763).
    Additionally, the NRC monitors the condition of SFPs through onsite 
Resident Inspectors, reviews of license amendment applications, and 
participation in industry forums. For example on October 28, 2009, the 
NRC issued Information Notice (IN) 2009-26, ``Degradation of Neutron-
Absorbing Materials in the Spent Fuel Pool'' to all operating reactors 
licensees and construction permit holders. IN 2009-26 is the latest in 
a series of generic communications regarding material issues in SFPs. 
These and other documents demonstrate the NRC's continuing evaluation 
of the SFPs and their ability to provide an adequate level of safety. 
This engagement ensures any issues are identified and addressed through 
the current regulatory process before they could advance to a state 
where there is a significant environmental impact. Therefore the 
Commission has reasonable assurance that SFPs designed, tested, 
operated and maintained according to NRC requirements will provide for 
the safe storage of spent nuclear fuel.
2. Storage in Dry Casks
    With regard to dry cask storage, studies of the accident risk of 
dry storage since 1990 have focused on specific dry cask storage 
systems located at either a generic Pressurized Water Reactor (PWR) 
site or a specific Boiling Water Reactor (BWR) site. In 2004, the 
Electric Power Research Institute (EPRI) performed a Probabilistic Risk 
Assessment (PRA) of a bolted dry spent fuel storage cask at a generic 
PWR site. K. Canavan, ``Probabilistic Risk Assessment (PRA) of Bolted 
Storage Casks Updated Quantification and Analysis Report,'' Electric 
Power Research Institute, Palo Alto, California; EPRI Doc. No. 1009691, 
December 2004. In 2007, the NRC published a pilot PRA methodology that 
assessed the risk to the public and identified the dominant 
contributors to risk associated with a welded canister dry spent fuel 
storage system at a specific BWR site. NUREG-1864, ``A Pilot 
Probabilistic Risk Assessment of a Dry Cask Storage System at a Nuclear 
Power Plant,'' March 2007. Both studies calculated the annual 
individual radiological risk and consequences associated with a single 
cask lifecycle where the lifecycle is divided into three phases: 
Loading, onsite transfer, and onsite storage. The EPRI study showed 
that risk is extremely low with no calculated early fatalities, a first 
year risk of latent cancer fatality of 5.6E-13 per cask, and subsequent 
year cancer risk of 1.7E-13 per cask. The NRC study also showed that 
risk is extremely low with no prompt fatalities expected, a first year 
risk of latent cancer fatality of 1.8E-12 per cask and subsequent year 
cancer risk of 3.2E-14 per cask.
    The major contributors to the low risk associated with dry cask 
storage are that they are passive systems, relying on natural air 
circulation for cooling, and are inherently robust massive structures 
that are highly damage resistant. Current design light water reactor 
(LWR) uranium oxide based fuel and carbon coated uranium oxide fuel of 
low burn-up from a high temperature gas cooled reactor have been 
successfully stored in dry storage facilities for approximately 20 
years. Extended dry-storage of this fuel has been approved for an 
additional 40-year term for facilities that have incorporated an 
appropriate aging management plan. Other potential new fuel types, such 
as fuels having different cladding alloys, fuel internal materials, new 
assembly designs, different operating conditions, or fuel higher than 
current burn-up limits, can be approved by the NRC for extended storage 
if the applicant provides sufficient data to demonstrate that storage 
of the newer designs can be safely accomplished.
    NRC and licensee experience to date with ISFSIs and with 
certification of

[[Page 81072]]

casks has indicated that interim storage of spent fuel at reactor sites 
can be safely and effectively conducted using passive dry storage 
technology. There have not been any safety problems during dry storage. 
The problems that have been encountered primarily occur during cask 
preparation activities, after initial loading of spent fuel and before 
placement on the storage pad. One issue involved the unanticipated 
collection and ignition of combustible gas during cask welding 
activities. The NRC issued generic communications in 1996 to address 
the problem and provide direction for preventing its recurrence. NRC 
Bulletin 96-04, ``Chemical, Galvanic, or Other Reactions in Spent Fuel 
Storage and Transportation Casks,'' and NRC Information Notice 96-34: 
``Hydrogen Gas Ignition During Closure Welding of a VSC-24 Multi-
Assembly Sealed Basket.'' The NRC also revised its inspection and 
review guidance to ensure that appropriate measures are in place to 
preclude these events. See NRC Inspection Manual, Inspection Procedure 
60854 Item 60854-02 and 02.03.a.6 and SFPO Interim Staff Guidance No. 
15, dated January 10, 2001.
    In addition, issuance of Materials License No. SNM-2513 for the 
Private Fuel Storage, LLC (PFS) facility has confirmed the feasibility 
of licensing an AFR ISFSI under 10 CFR Part 72. While there are several 
issues that have to be resolved before the PFS AFR ISFSI can be built 
and operated,\39\ the extensive review of safety and environmental 
issues associated with licensing the PFS facility provides additional 
confidence that spent fuel may be safely stored at an AFR ISFSI for 
long periods after storage at a reactor site.
---------------------------------------------------------------------------

    \39\ For example, on July 17, 2007, Private Fuel Storage and the 
Skull Valley Band of Goshute Indians (the Band) filed suit against 
the U.S. Department of Interior (DOI) in federal district court, 
challenging DOI's decisions to disapprove the lease between PFS and 
the Band and to deny PFS's application for right-of-way across 
public land. On July 26, 2010, the district court vacated both of 
DOI's denials and remanded the case to DOI for further 
consideration. Skull Valley Band of Goshute Indians v. Davis,--
F.Supp.2d--, 2010 WL2990781 (D. Utah July 26, 2010). On September 
27th, 2010, the Salt Lake Tribune reported that the Department of 
Interior would not challenge the court's ruling. http://www.sltrib.com/sltrib/home/50365983-76/interior-nuclear-department-ruling.html.csp?page=1.
     In addition, timely petitions for review challenging the NRC's 
decision to issue a license to Private Fuel Storage for the 
construction of an interim spent fuel storage facility were filed in 
the Court of Appeals for the DC Circuit. Ohngo Gaudadeh Devia v. 
NRC, No. 05-1419 (and consolidated cases) (DC Cir.). By Order dated 
June 27, 2007, the court held the petitions for review in abeyance 
pending further court order, requiring the parties to file status 
reports every 120 days on the status of actions challenging DOI's 
lease and right-of-way decisions.
     Another issue is associated with the February 2006 (NAS) Report 
on the transport of SNF in the United States, which concluded that 
while safe transport is technically viable, ``the societal risks and 
related institutional challenges may impinge on the successful 
implementation of large-quantity shipping programs.'' National 
Research Council 2006, ``Going the Distance? The Safe Transport of 
Spent Nuclear Fuel and High-Level Radioactive Waste in the United 
States,'' Washington, DC: National Academy Press, TIC: 217588, at 
pp. 214. The NAS committee found that ``malevolent acts against 
spent fuel and high-level waste shipment are a major technical and 
societal concern,'' and recommended that ``an independent 
examination of security of spent fuel and high-level waste 
transportation be carried out prior to the commencement of large-
quantity shipments to a Federal repository or to interim storage.'' 
Id.
---------------------------------------------------------------------------

    In addition, as noted in its 1990 Waste Confidence Decision, the 
Commission has confidence in the safety and environmental 
insignificance of dry storage at an MRS for 70 years following a period 
of 70 years of storage in spent fuel storage pools. Specifically, the 
Commission stated:

    Under the environmental assessment for the MRS rule [NUREG-
1092], the Commission has found confidence in the safety and 
environmental insignificance of dry storage of spent fuel for 70 
years following a period of 70 years of storage in spent fuel 
storage pools. Thus, this environmental assessment supports the 
proposition that spent fuel may be stored safely and without 
significant environmental impact for a period of up to 140 years if 
storage in spent fuel pools occurs first and the period of dry 
storage does not exceed 70 years. (55 FR 38509-38513; September 18, 
1990).

    Further, a commenter on the 1990 Waste Confidence Decision asserted 
that there was reasonable assurance that spent fuel could be stored 
safely and without significant environmental risk in dry casks at 
reactor sites for up to 100 years. The Commission responded:

    The Commission does not dispute a conclusion that dry spent fuel 
storage is safe and environmentally acceptable for a period of 100 
years. Evidence supports safe storage for this period. A European 
study published in 1988 states, ``in conclusion, present-day 
technology allows wet or dry storage over very long periods, and up 
to 100 years without undue danger to workers and population (See 
Fettel, W., Kaspar, G., and Guntehr, H., ``Long-Term Storage of 
Spent Fuel from Light-Water Reactors'' (EUR 11866 EN), Executive 
Summary, p.v., 1988).
    Although spent fuel can probably be safely stored without 
significant environmental impact for longer periods, the Commission 
does not find it necessary to make a specific conclusion regarding 
dry cask storage in this proceeding, as suggested by the commenter, 
in part because the Commission's Proposed Fourth Finding states that 
the period of safe storage is ``at least'' 30 years after expiration 
of a reactor's operating license. The Commission supports timely 
disposal of spent fuel and high-level waste in a geologic 
repository, and by this decision does not intend to support storage 
of spent fuel for an indefinitely long period. (55 FR 38482; 
September 18, 1990).

    The Commission also explained the nature of its finding that spent 
fuel could be stored safely and without significant environmental 
impacts for at least 30 years beyond the licensed life for operation, 
stating:

    [I]n using the words ``at least'' in its revised Finding Four, 
the Commission is not suggesting 30 years beyond the licensed life 
for operation * * * represents any technical limitation for safe and 
environmentally benign storage. Degradation rates of spent fuel in 
storage, for example, are slow enough that it is hard to distinguish 
by degradation alone between spent fuel in storage for less than a 
decade and spent fuel stored for several decades. (55 FR 38509; 
September 18, 1990).

    As explained above under the discussion of Finding 3, the NRC has 
renewed three specific ISFSI licenses for an extended 40-year period 
under exemptions granted from 10 CFR Part 72, which provides for 20-
year renewals. In addition, the NRC staff submitted a final rule 
package to the Commission on May 3, 2010, that would provide a 40-year 
license term for an ISFSI with the possibility of renewal. See SECY 10-
0056, ``Final Rule: 10 CFR Part 72 License and Certificate of 
Compliance Terms (RIN 3150-A109)'' (ADAMS Accession Number 
ML100710052). Continued suitability of materials is a prime 
consideration for ISFSI license renewals. As discussed under Finding 3 
in this document, the applicants' evaluation of aging effects on the 
structures, systems, and components important to safety, supplemented 
by the licensees' aging management programs, provided reasonable 
assurance of continued safe storage of spent fuel in these ISFSIs. 
Thus, these cases reaffirm the Commission's confidence in the safety of 
interim dry storage for an extended period. While these license renewal 
cases only address storage for a period of up to 60 years (20-year 
initial license, plus 40-year renewal), studies performed to date have 
not identified any major issues with long-term use of dry storage. See, 
e.g., NUREG/CR-6831, ``Examination of Spent PWR Fuel rods after 15 
Years in Dry Storage,'' (September 2003); J. Kessler, ``Technical Bases 
for Extended Dry Storage of Spent Nuclear Fuel,'' Electric Power 
Research Institute, Palo Alto, California; EPRI Doc. No. 1003416, 
December 2002 (55 FR 38509; September 18, 1990). As noted above, the 
Commission has directed the NRC staff, separate from

[[Page 81073]]

these updates to the Waste Confidence Decision and Rule, to examine the 
possibility of storage for more than 60 years after licensed life for 
operation. This longer-term analysis will be supported by an 
Environmental Impact Statement.
3. Terrorism and Spent Fuel Management
    The NRC has, since the 1970s, regarded spent fuel in storage as a 
potential terrorist target and provided for appropriate security 
measures. Before September 11, 2001, spent fuel was well protected by 
physical barriers, armed guards, intrusion detection systems, area 
surveillance systems, access controls, and access authorization 
requirements for persons working inside nuclear power plants and spent 
fuel storage facilities. Since September 11, 2001, the NRC has 
significantly enhanced its requirements, and licensees have 
significantly increased their resources to further enhance and improve 
security at spent fuel storage facilities and nuclear power plants. See 
(Diaz Letter), at 20.
    Consistent with the approach taken at other categories of nuclear 
facilities, the NRC responded to the terrorist attacks of September 11, 
2001, by promptly developing and requiring security enhancements for 
spent fuel storage both in spent fuel pools and dry casks. In February 
2002, the NRC required power reactor licensees to enhance security and 
improve their capabilities to respond to terrorist attacks. The NRC's 
orders included requirements for spent fuel pool cooling to deal with 
the consequences of potential terrorist attacks. These enhancements to 
security included increased security patrols, augmented security 
forces, additional security posts, increased vehicle standoff 
distances, and improved coordination with law enforcement and 
intelligence communities, as well as strengthened safety-related 
mitigation procedures and strategies. The February 2002 orders required 
licensees to develop specific guidance and strategies to maintain or 
restore spent fuel pool cooling capabilities using existing or readily 
available resources (equipment and personnel) that can be effectively 
implemented under the circumstances associated with the loss of large 
areas of the plant due to large fires and explosions.
    In January and April 2003, the NRC issued additional orders on 
security, including security for spent fuel storage. The NRC 
subsequently inspected each facility to verify the licensee's 
implementation, evaluated inspection findings and, as necessary, 
required actions to address any noted deficiencies. The NRC's 
inspection activities in this area are ongoing. In 2004, the NRC 
reviewed and approved revised security plans submitted by licensees to 
reflect the implementation of new security requirements. The enhanced 
security at licensee facilities is routinely inspected using a revised 
baseline inspection program, and power reactor licensees' capabilities 
(including spent fuel pools) are tested in periodic (every 3 years) 
force-on-force exercises. Diaz Letter at iii, 7, 9. The NRC's ongoing 
ISFSI security rulemaking is discussed below.
    In 2002, the NRC required power reactors in decommissioning, wet 
ISFSIs, and dry storage ISFSIs to enhance security and improve their 
capabilities to respond to, and mitigate the consequences of, a 
terrorist attack. In the same year, the NRC required licensees 
transporting more than a specified amount of spent fuel to enhance 
security during transport. Diaz Letter at 7, 8.
    In 2002, the NRC also initiated a classified program on the 
capability of nuclear facilities to withstand a terrorist attack. The 
early focus of the program was on power reactors, including spent fuel 
pools, and on dry cask storage and transportation. As the results of 
the program became available, the NRC provided additional guidance to 
licensees on the Commission's expectations regarding the implementation 
of the orders on the spent fuel mitigation measures. Diaz Letter at iv.
    In 2007 the NRC issued a final rule revising the Design Basis 
Threat, which also increased the security requirements for power 
reactors and their spent fuel pools (72 FR 12705; March 19, 2007). More 
recently, on March 27, 2009, the NRC issued a final rule to improve 
security measures at nuclear power reactors (74 FR 13926).
i. Spent Fuel Pools
    Spent fuel pools that are designed, tested, operated and maintained 
according to NRC requirements will provide for the safe storage of 
spent nuclear fuel. Spent fuel pools are extremely robust structures 
that are designed to safely contain spent fuel under a variety of 
normal, off-normal, and hypothetical accident conditions (e.g., loss of 
electrical power, floods, earthquakes, tornadoes). The pools are 
massive structures made of reinforced concrete with walls typically 
over six feet thick, lined with welded stainless steel plates to form a 
generally leak-tight barrier, fitted with racks to store the fuel 
assemblies in a controlled configuration, and provided with redundant 
monitoring, cooling, and make-up water systems. Spent fuel stored in 
pools is typically covered by about 25 feet of water, which serves as 
both shielding and an effective protective cover against direct impacts 
on the stored fuel. Diaz Letter at 2 (73 FR 46206; August 8, 2008).
    The post-September 11, 2001 studies discussed above confirm the 
effectiveness of additional mitigation strategies to maintain spent 
fuel cooling in the event the pool is drained and its initial water 
inventory is reduced or lost entirely. Based on this recent information 
and the implementation of additional strategies following September 11, 
2001, the risk of a spent fuel pool zirconium fire initiation will be 
less than reported in NUREG-1738 and previous studies. Given the 
physical robustness of the pools, the physical security measures, and 
the spent fuel pool mitigation measures, and based upon NRC site 
evaluations of every spent fuel pool in the United States, the NRC has 
determined that the risk of a spent fuel pool zirconium fire, whether 
caused by an accident or a terrorist attack, is very low. In addition, 
the NRC has approved license amendments and issued safety evaluations 
to incorporate mitigation measures into the plant licensing bases of 
all operating nuclear power plants in the United States (See 73 FR 
46207-46208; August 8, 2008).
ii. Dry Storage Casks
    Dry storage casks are massive canisters, either all metal or a 
combination of concrete and metal, and are inherently robust (e.g., 
some casks weigh over 100 tons). Storage casks contain spent fuel in a 
sealed and chemically-inert environment. Diaz Letter at 3.
    The NRC has evaluated the results of security assessments involving 
large commercial aircraft attacks, which were performed on four 
prototypical spent fuel cask designs, and concluded that the likelihood 
is very low that a radioactive release from a spent fuel storage cask 
would be significant enough to cause adverse health consequences to 
nearby members of the public. While differences exist between storage 
cask designs, the results of the security assessments indicate that any 
potential radioactive releases were consistently very low.
    The NRC also evaluated the results of security assessments 
involving vehicle bomb and ground assault attacks against these same 
four cask designs. The NRC concluded that, while a radiological release 
was possible, the size and nature

[[Page 81074]]

of the release did not require the Commission to immediately implement 
additional security compensatory measures. Accordingly, the NRC staff 
recommended, and the Commission approved, development of risk-informed, 
performance-based security requirements and associated guidance 
applicable to all ISFSI licensees (general and specific), which would 
enhance existing security requirements. This proposed ISFSI security 
rulemaking would apply to all existing and future licensees. See SECY-
07-0148, ``Independent Spent Fuel Storage Installation Security 
Requirements for Radiological Sabotage,'' (August 28, 2007) (ADAMS 
Accession Number ML080250294); SRM-SECY-07-0148--Independent Spent Fuel 
Storage Installation Security Requirements for Radiological Sabotage, 
(December 18, 2007) (ADAMS Accession Number ML073530119).
    On August 26, 2010, the NRC staff recommended an extension of the 
proposed rulemaking schedule to reassess the technical approach and 
evaluate the impacts from shifting technical approaches. See SECY 10-
0114, ``Recommendation to Extend the Proposed Rulemaking on Security 
Requirements For Facilities Storing Spent Nuclear Fuel and High-Level 
Radioactive Waste,'' (August 26, 2010) (ADAMS Accession Number 
ML101880013). In addition, the NRC has noted that distributing spent 
fuel over many discrete storage casks (e.g., in an ISFSI) limits the 
total quantity of spent fuel that could be attacked at any one time, 
due to limits on the number of adversaries and the amount of equipment 
they can reasonably bring with them. Diaz Letter at 17, 18, 22.
iii. Conclusion-Security
    Today, spent fuel is better protected than ever. The results of 
security assessments, existing security regulations, and the additional 
protective and mitigative measures imposed since September 11, 2001, 
provide high assurance that the spent fuel in both spent fuel pools and 
in dry storage casks will be adequately protected. The ongoing efforts 
to update the ISFSI security requirements to address the current threat 
environment will integrate the additional protective measures imposed 
since September 11, 2001, into a formalized regulatory framework in a 
transparent manner that balances public participation against 
protection of exploitable information.
4. Conclusion
    The Commission concludes that the events that have occurred since 
the last formal review of its Waste Confidence Decision in 1990 provide 
support for a continued finding of 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 of that reactor at its spent fuel 
storage basin. Specifically, the NRC finds continued support for this 
finding in the extensive study of spent fuel pool storage that has 
occurred since 1990, and the continued regulatory oversight of 
operating plants, which has been enhanced by the recommendations of the 
Liquid Release Task Force.
    Further, the Commission is revising Finding 2 to reflect its 
expectation that repository capacity will be available when necessary. 
The analysis supporting Finding 2 concludes that a repository can be 
constructed within 25-35 years of a Federal decision to do so. This 
means that the earliest a repository could be available is 2035-2045, 
which is beyond the 30 years after licensed life of operation in the 
1990 rule. But as the Commission discussed above, there is no safety 
finding that would preclude the extension of the 30 years of safe 
storage without significant environmental impacts. Indeed, the current 
technical information supports a finding that storage for at least 60 
years after licensed life for operation is safe. Consistent with the 
changes to Finding 2 and its supporting analysis, the Commission is 
revising Finding 4 to reflect that spent fuel can be safely stored in 
dry casks for a period of at least 60 years without significant 
environmental impacts. Specifically, the inherent robustness and 
passive nature of dry cask storage--coupled with the operating 
experience and research accumulated to date, the 70-year finding in the 
Environmental Assessment for the MRS rule, and the renewal of three 
specific 10 CFR Part 72 licenses for an extended 40-year period (for a 
total ISFSI operating life of at least 60 years)--support this finding. 
Further, this finding is consistent with the Commission's statements in 
1990 that it did not dispute that dry spent fuel storage is safe and 
environmentally acceptable for a period of 100 years (55 FR 38482; 
September 18, 1990); that spent fuel could probably be safely stored 
without significant environmental impact for periods longer than 30 
years Id; and that the 30 year finding did not represent a technical 
limitation for safe and environmentally benign storage (55 FR 38509; 
September 18, 1990).
    Therefore, based on all of the information set forth above and 
after consideration of the public comments received, the Commission is 
revising Finding 4 as proposed.

C. Finding 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 60 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor in a combination of storage in its 
spent fuel storage basin and either onsite or offsite independent spent 
fuel storage installations.

V. Finding 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

A. Bases for Finding 5

    The focus of this finding is on the timeliness of the availability 
of facilities for storage of spent fuel when the fuel can no longer be 
stored in the reactor's spent fuel storage pool. At the outset of the 
Waste Confidence proceeding, there was uncertainty as to who had the 
responsibility for providing this storage, with the expectation that 
the Federal Government would provide away-from-reactor (AFR) facilities 
for this purpose. But in 1981 DOE announced its decision to discontinue 
the AFR program. The Commission found that the industry's response to 
this change was a general commitment to do whatever was necessary to 
avoid shutting down reactors. The NWPA provided Federal policy on this 
issue by defining public and private responsibilities for spent fuel 
storage and by providing for an MRS program, an interim storage program 
at a Federal facility for utilities for which there was no other 
solution, and a research, development, and demonstration program for 
dry storage designed to assist utilities in using dry storage methods. 
These NWPA provisions, together with the availability of ISFSI 
technology and the fact that the 10 CFR part 72 regulations and 
licensing procedures were in place, gave the Commission reasonable 
assurance that safe, independent onsite or offsite spent fuel storage 
would be available when needed (49 FR 34686-34687; August 31, 1984).
    In 1990, the Commission saw no need to revise this finding. It 
recognized that the NWPA had undermined the ability of an MRS to 
provide for timely storage by linking the MRS to the siting and 
schedule for a repository (i.e., DOE was

[[Page 81075]]

not permitted to select an MRS site until it had recommended a site for 
development as a repository). See Section 145(b) of NWPA, 42 U.S.C. 
10165 (2006) and Section 148(d)(1) of NWPA, 42 U.S.C. 10168 (2006). But 
the Commission found that whatever the uncertainty introduced by these 
NWPA provisions, it was more than compensated for by operational and 
planned spent fuel pool expansions and dry storage investments by the 
utilities themselves.
    The Commission also considered the fact that it seemed probable 
that DOE would not meet the 1998 deadline for beginning to remove spent 
fuel from the utilities. This did not undermine the Commission's 
confidence that storage capacity would be made available as needed 
because NRC licensees cannot abrogate their safety responsibilities and 
would remain responsible for the stored fuel despite any possible 
contractual disputes with DOE. The Commission noted that DOE's research 
program had successfully demonstrated the viability of dry storage 
technology and that the utilities had continued to add dry storage 
capacity at their sites. Further, the Commission believed that there 
would be sufficient time for construction and licensing of any 
additional storage capacity that might be needed due to operating 
license renewals (55 FR 38513-38514; September 18, 1990).

B. Evaluation of Finding 5

    In 1990, the Commission reaffirmed Finding 5 despite significant 
uncertainties regarding DOE's MRS and repository programs, and the 
potential for the renewal of reactor operating licenses. Specifically, 
in reaffirming Finding 5 the Commission stated:

    In summary, the Commission finds no basis to change the Fifth 
Finding in its Waste Confidence Decision. Changes by the NWPAA, 
which may lessen the likelihood of an MRS facility, and the 
potential for some slippage in repository availability to the first 
quarter of the twenty-first century * * * are more than offset by 
the continued success of utilities in providing safe at-reactor-site 
storage capacity in reactor pools and their progress in providing 
independent onsite storage. Therefore, the Commission continues to 
find `* * * reasonable assurance that safe independent onsite spent 
fuel storage or offsite spent fuel storage will be made available if 
such storage is needed.' (55 FR 38514; September 18, 1990).

    In reaching this conclusion, the Commission stressed that--
regardless of the outcome of possible contractual disputes between DOE 
and utilities--the utilities possessing spent fuel could not abrogate 
their safety responsibilities, which by law the NRC imposes and 
enforces. In addition, the Commission cited three situations where dry 
storage had been licensed at specific reactor sites (Surry, H.B. 
Robinson, and Oconee), and several additional applications for licenses 
permitting dry cask storage at reactor sites. Id.
1. Operating and Decommissioned Reactors
    As in 1990, the NRC is not aware of any current operating reactor 
that has an insurmountable problem with safe storage of SNF. Spent fuel 
pool re-racking, fuel-pin consolidation, and onsite dry cask storage 
are successfully being used to increase onsite storage capacity. While 
there are cases where a licensee's ability to use an onsite dry cask 
storage option may be limited by State or Public Utility Commission 
authorities, the NRC is successfully regulating six fully 
decommissioned reactor sites that contain ISFSIs licensed under either 
the general or specific license provisions of 10 CFR part 72. The NRC 
has not encountered any management problems associated with the ISFSIs 
at these six decommissioned reactor sites and has discussed plans to 
build generally licensed ISFSIs with two additional licensees that are 
in the process of decommissioning.
    In addition, since 1990, the NRC has renewed the specific 10 CFR 
part 72 ISFSI licenses for the Surry, H.B. Robinson, and Oconee plants 
for an extended 40-year period, instead of the 20-year renewal period 
currently provided for under 10 CFR part 72. As discussed above under 
Finding 3, the Commission authorized the staff to grant exemptions to 
allow the 40-year renewal period after the staff reviewed the 
applicants' evaluations of aging effects on the structures, systems, 
and components important to safety and determined that the evaluations, 
supplemented by the applicants' aging management programs, provided 
reasonable assurance of continued safe storage of spent fuel in these 
ISFSIs. See SECY-04-0175, ``Options for Addressing the Surry 
Independent Spent Fuel Storage Installation License-Renewal Period 
Exemption Request,'' September 28, 2004 (ADAMS Accession Number 
ML041830697).
    With regard to the uncertainty surrounding the contractual disputes 
between DOE and the utilities referenced by the Commission in 1990, the 
U.S. Court of Appeals for the District of Columbia Circuit has since 
held that DOE's statutory and contractual obligation to accept the 
waste no later than January 31, 1998, was unconditional. Indiana 
Michigan Power Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996). Subsequently, 
the utilities have continued to manage spent fuel safely in spent fuel 
pools and ISFSIs and have received damage awards as determined in 
lawsuits brought before the U.S. Federal Claims Court. See, e.g., 
System Fuels Inc. v. U.S., 78 Fed. Cl. 769 (October 11, 2007); 92 Fed. 
Cl. 101 (March 11, 2010).
    In total, there are currently 51 licensed ISFSIs being managed at 
47 sites across the country, under either specific or general 10 CFR 
Part 72 NRC licenses. As explained in the discussion of Finding 3, the 
NRC's inspection findings do not indicate unique management problems at 
any currently operating ISFSI regulated by the NRC. Generally, the 
types of issues identified through NRC inspections of ISFSIs are 
similar to issues identified for 10 CFR Part 50 licensees. Most issues 
are identified early in the operational phase of the dry cask storage 
process, during loading preparations and actual spent fuel loading 
activities. Once an ISFSI is fully loaded with spent fuel, relatively 
few inspection issues are identified due to the passive nature of these 
facilities.
2. New Reactors
    With regard to the status of contracts requiring DOE to take title 
to and possession of the irradiated fuel generated by utilities, DOE 
has prepared updated contracts, and a number of utility companies have 
signed contracts with the department (See, e.g., ML100280755 and 
ML083540149). In addition, before licensing a new reactor, the NRC must 
find that the applicant has entered into a contract with DOE for 
removal of spent fuel from the reactor site or received written 
affirmation from DOE that the applicant is actively and in good faith 
negotiating with the DOE for such a contract. NWPA, Section302(b). This 
finding will be documented in the Safety Evaluation Report produced by 
the NRC staff in response to specific license applications for new 
reactors (See, e.g., ML100280755).
    The near-term design certifications and existing or planned 
combined license applications do not undermine the Commission's 
confidence that spent fuel storage will become available when storage 
is needed. These facilities will use the same or similar fuel assembly 
designs as the nuclear power plants currently operating in the United 
States, and the spent fuel will be accommodated using existing or 
similar transportation and storage containers. As discussed under 
Finding 1, the NRC is also engaged in preliminary interactions with DOE 
on advanced reactors (e.g., gas-cooled or liquid-metal

[[Page 81076]]

cooled technologies). The fuel and reactor components associated with 
some of these advanced reactor designs would likely require different 
storage, transportation, and disposal packages than those currently 
used for spent fuel from light-water reactors. The possible need for 
further assessment of performance and storage capability for new and 
different fuels would depend on the number and types of reactors 
actually licensed and operated. There is currently high uncertainty 
regarding the construction of advanced reactors in the U.S. In 
addition, the need to consider waste disposal as part of the overall 
research and development activities for advanced reactors is one of the 
issues being considered by DOE, reactor designers, and the NRC (see, 
e.g., ``A Technology Roadmap for Generation IV Nuclear Energy 
Systems,'' issued by the U.S. DOE Nuclear Energy Research Advisory 
Committee and the Generation IV International Forum, December 2002).
    Nonetheless, the addition of new plants (if any are licensed and 
constructed) would add to the amount of spent fuel requiring disposal. 
This fact does not affect the Commission's confidence that safe storage 
options will be available when needed because, as the Commission stated 
in 1990, utilities have sought to meet storage capacity needs at their 
respective reactor sites (55 FR 38514; September 18, 1990). 
Specifically, as discussed under Finding 3, NRC licensees have 
successfully and safely used onsite storage capacity in spent fuel 
pools and, more recently, in onsite ISFSIs licensed under 10 CFR part 
72. In addition, while construction and operation of an MRS facility by 
DOE is uncertain, the NRC has promulgated regulations that provide a 
framework for licensing an MRS (See 10 CFR part 72; 53 FR 31651; August 
19, 1988). Further, while there are unresolved issues that are 
currently preventing construction and operation of the PFS facility, 
the extensive safety and environmental reviews that supported issuance 
of an NRC license for PFS provide added confidence that licensing of a 
private AFR facility is technically feasible.
    The Commission concludes that the events that have occurred since 
the last formal review of the Waste Confidence Decision in 1990 support 
a continued finding of reasonable assurance that safe independent 
onsite spent fuel storage or offsite spent fuel storage will be made 
available if storage capacity is needed. Specifically, since 1990, NRC 
licensees have continued to develop and successfully use onsite storage 
capacity in the form of pool and dry cask storage in a safe and 
environmentally sound fashion. With regard to offsite storage, the 
Commission licensed the PFS facility after an extensive safety and 
environmental review process and a lengthy adjudicatory hearing that 
resulted in over 70 ASLB and Commission decisions. The Commission also 
has a regulatory framework for licensing an MRS facility, should the 
need arise. In addition, DOE has prepared updated contracts to provide 
for disposal of spent fuel and a number of utility companies have 
signed contracts with the DOE. This provides the NRC with continued 
confidence in the Federal commitment to providing for the ultimate 
disposal of spent fuel.
    Based on the above discussion, including its response to the public 
comments, the Commission reaffirms Finding 5.

    Dated at Rockville, Maryland, this 9th day of December 2010.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-31637 Filed 12-22-10; 8:45 am]
BILLING CODE 7590-01-P