[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10805-10810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4347]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket No. PRM-51-13; NRC-2010-0088]


Dan Kane; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; Denial.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM) submitted by Dan Kane. Mr. Kane requested that the 
NRC rescind the Waste Confidence Rule, suspend all ongoing reactor 
licensing proceedings, and phase out operations at all operating 
nuclear power plants. The NRC is denying the petition because, contrary 
to the assertions made in the PRM, the Commission's Waste Confidence 
Decision and Rule consider the political uncertainty discussed in the 
petition and do not depend on the availability of a repository at Yucca 
Mountain, Nevada.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    <bullet> 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 20852.
    <bullet> 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 
PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#f2829680dc8097819d87809197b29c8091dc959d84"><span class="__cf_email__" data-cfemail="057561772b7760766a70776660456b77662b626a73">[email protected]</span></a>.
    <bullet> Federal rulemaking Web site: Public comments and 
supporting materials related to this petition for rulemaking can be 
found at http://www.regulations.gov by searching on Docket ID: NRC-
2010-0088. Address questions about NRC dockets to Carol Gallagher 301-
492-3668; e-mail <a href="/cdn-cgi/l/email-protection#0d4e6c7f6261234a6c61616c6a65687f4d637f6e236a627b"><span class="__cf_email__" data-cfemail="591a382b3635771e383535383e313c2b19372b3a773e362f">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
telephone: 301-415-8579, e-mail: <a href="/cdn-cgi/l/email-protection#8afee3f9e5e4a4e9ebe7fae8efe6e6cae4f8e9a4ede5fc"><span class="__cf_email__" data-cfemail="54203d273b3a7a3735392436313838143a26377a333b22">[email protected]</span></a>; or Lisa 
London, Office of the General Counsel, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, telephone: 301-415-3233, e-mail: 
<a href="/cdn-cgi/l/email-protection#9df1f4eefcb3f1f2f3f9f2f3ddf3effeb3faf2eb"><span class="__cf_email__" data-cfemail="54383d27357a383b3a303b3a143a26377a333b22">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

The Petition

    Title 10 of the Code of Federal Regulations (10 CFR), Section 
2.802, Petition for rulemaking, provides an opportunity for any 
interested person to petition the Commission to issue, amend, or 
rescind any regulation. On February 2, 2010, Dan Kane submitted a PRM 
requesting that the NRC rescind 10 CFR 51.23, Temporary storage of 
spent fuel after cessation of reactor operation--generic determination 
of no significant environmental impact, also known as the Waste 
Confidence Rule. (ADAMS Accession No. ML100570095 (Petition)).
    Mr. Kane believes that rescinding 10 CFR 51.23 would require the 
NRC to cease licensing new nuclear power plants and to suspend the 
licenses of existing power plants. He argues that the Waste Confidence 
Rule is no longer valid because the Department of Energy has filed a 
motion to withdraw its application for a spent nuclear fuel (SNF) and 
high-level waste (HLW) disposal facility at Yucca Mountain and because 
he believes that the Commission must ``adequately anticipate and 
address future political considerations with regard to waste disposal'' 
as part of its Waste Confidence Decision and Rule. (Petition at 3). The 
NRC reviewed Mr. Kane's petition and determined that the petition met 
the minimum sufficiency requirements of 10 CFR 2.802. Accordingly, the 
NRC docketed the request as PRM-51-13 on February 25, 2010; the NRC 
notified the public of the opportunity to submit comments on the 
petition in the Federal Register notice announcing the docketing of the 
petition. (75 FR 16360; April 1, 2010). The NRC received 10 comments on 
the PRM: five comments supported granting the petition, one asked the 
NRC to provide additional information on the basis for the Waste 
Confidence Decision and Rule, and four argued that the petition should 
be denied.

Background

    In his February 2, 2010 PRM, Dan Kane requested that the NRC 
``[c]ease licensing of new nuclear power plants and begin an orderly 
phase out of existing operating nuclear power plants until the 
Commission can be assured not only of the technical and economic 
certainties of a waste disposition decision, but also of the political 
certainties associated with that disposition.'' (Petition at 3). Mr. 
Kane believes that the uncertainty regarding the licensing of a nuclear 
waste repository at Yucca Mountain undermines the basis for the NRC's 
regulations at 10 CFR 51.23, which he believes provide the basis for 
the continued operation and licensing of nuclear power plants. (Id.) He 
contends that the then proposed revisions to Finding 2 (of the five 
findings in the Waste Confidence Decision), which provides part of the 
basis for 10 CFR 51.23, ``was grounded in the belief that the Yucca 
Mountain repository would become available within the first quarter of 
the twenty-first century or perhaps a few years later.'' (Id. at 2). 
Mr. Kane also believes that the NRC has not complied with its 
obligations under the National Environmental Policy Act (NEPA) because 
``[t]he spirit of NEPA compliance cannot be satisfied by assuming some 
unknown future solution to an existing challenge.'' (Id.) As discussed 
above, Mr. Kane believes that this existing challenge is political. 
(Id. at 2-3). Further, Mr. Kane argues that the deficiency in the Waste 
Confidence Decision and Rule results from the inability of the 
Commission to ``adequately anticipate and address future political 
considerations with regard to waste disposal.'' (Id. at 3).

NRC Evaluation

    The NRC does not agree with Mr. Kane that 10 CFR 51.23 should be 
rescinded.

[[Page 10806]]

Whether the Withdrawal of the Yucca Mountain Application Necessitates 
the Revocation of the Waste Confidence Decision and Rule

    The basis for Mr. Kane's petition to revoke the Waste Confidence 
Rule is the Department of Energy's motion to withdraw the Yucca 
Mountain license application and the Obama Administration's decision 
not to seek further funding for the program. (Petition at 2). Despite 
Mr. Kane's assertions to the contrary, the Commission has stated on 
numerous occasions that the Waste Confidence Decision and Rule are not 
based on an assumption that Yucca Mountain will become available. In 
fact, the Waste Confidence Decision and Rule assume that Yucca Mountain 
will not be built. (See, e.g., 55 FR 38494; September 18, 1990, 75 FR 
81040; December 23, 2010). Therefore, Mr. Kane's argument that the 
Waste Confidence Decision and Rule should be revoked because they 
relied upon the eventual availability of Yucca Mountain must be 
rejected because it does not accurately consider the basis for the 
Decision and Rule.
    Mr. Kane is correct that the Commission cannot speculate when the 
political and societal obstacles to the successful completion of a 
repository program will be overcome. The Commission has acknowledged 
these difficulties in the recently published update to its Waste 
Confidence Decision and Rule. (See, 75 FR 81048 and 81063). However, it 
does not follow from the Commission's acknowledgement of the societal 
and political obstacles to a successful repository program that the 
Commission cannot have reasonable assurance that disposal capacity will 
be available when needed as expressed in the Waste Confidence Decision 
and Rule. Although the Commission cannot specifically predict when a 
repository will become available, the Commission can have reasonable 
assurance that a repository will become available when necessary and 
that the SNF and HLW in on-site and off-site storage facilities can be 
stored safely and without significant environmental impacts for at 
least 60 years after the licensed life of operation for any reactor. 
(Id. at 81048, 81063, and 81069-81074). As discussed in the analysis of 
Finding 2 of the Waste Confidence Decision, the Commission continues to 
have reasonable assurance that a repository can be licensed, opened, 
and in operation within 25-35 years of a Federal decision to begin a 
repository program. (Id. at 81063).
    Further, the political obstacles associated with the licensing of 
Yucca Mountain or any other repository are not fatal to the 
Commission's Waste Confidence Decision and Rule. As stated above, the 
Commission assumed that Yucca Mountain would not be licensed in both 
the proposed and final updates to the Waste Confidence Decision and 
Rule. (See, e.g., 75 FR 81040). As also discussed above, the 
Commission's analysis in the Waste Confidence Decision--which serves as 
the Environmental Assessment (the NEPA analysis) for the Waste 
Confidence Rule--does consider and acknowledge the political 
difficulties associated with the successful completion of a project to 
license and operate a nuclear waste repository. These difficulties 
informed the Commission's decision to remove a target date from Finding 
2 and 10 CFR 51.23, and to adopt the ``when necessary'' standard in the 
current Finding 2 and 10 CFR 51.23. The Commission also acknowledged 
that if a repository is not available as the end of the 60-years of 
post-licensed life storage nears, it will be necessary to revisit the 
Waste Confidence Decision and Rule (if a subsequent update has not 
occurred by that time). (75 FR 81035). Further, in its September 15, 
2010 Staff Requirements Memorandum approving the final update to the 
Waste Confidence Decision and Rule, the Commission directed the NRC 
staff to begin a separate longer-term rulemaking (to be supported by an 
Environmental Impact Statement) to assess the long-term storage of SNF 
and HLW. (ADAMS Accession No. ML102580229).
    Contrary to Mr. Kane's assertions that the NRC has neglected its 
responsibilities under NEPA ``by assuming some unknown future solution 
to an existing challenge,'' the NRC has not assumed some unknown future 
solution. The Waste Confidence Decision and Rule demonstrate that a 
solution--deep geologic disposal--does exist and is technically 
feasible. (See, e.g., 75 FR 81058-81060). The unknown that prevents the 
Commission from providing a target date is the political and societal 
uncertainty surrounding the nuclear waste disposal program; the 
Commission addressed this uncertainty in its update to the Waste 
Confidence Decision. (75 FR 81062-81067). Further, the U.S. government 
as a whole has demonstrated its continued commitment to finding a long-
term solution to the nuclear waste disposal problem. The NRC continues 
to have confidence that SNF and HLW can be stored safely until a 
disposal solution becomes available. The United States is actively 
examining potential solutions. The Blue Ribbon Commission on America's 
Nuclear Future is assessing disposal options and is expected to publish 
a report with recommendations at the beginning of 2012. Just because 
the Obama Administration has expressed a desire to abandon one specific 
option for SNF and HLW disposal does not mean that progress is not 
being made toward an ultimate disposal solution.

Whether Rescinding 10 CFR 51.23 Would Require the Cessation of Reactor 
Licensing

    Even if the Commission were to rescind 10 CFR 51.23, it does not 
follow that the operation and licensing of nuclear power plants would 
have to cease. The Waste Confidence Rule satisfies the Commission's 
NEPA responsibilities for the period of time after the expiration of a 
license. Without the generic determination in the Waste Confidence 
Rule, the NRC could satisfy its NEPA obligations by including the post-
licensed-life storage of SNF in the NEPA analysis for each nuclear 
power plant or ISFSI licensing action.
    Further, the Commission's Waste Confidence Decision and Rule are 
not dependent on the NRC's ability to predict when the political and 
societal obstacles that stand in the way of opening a disposal site 
will be resolved. Rather, as discussed by the Court of Appeals for the 
DC Circuit in Minnesota v. NRC, 602 F.2d 412 (1979), the question that 
has to be considered by the NRC is ``whether there is reasonable 
assurance that an off-site storage solution will be available by the 
years 2007-09 \1\, * * * and if not, whether there is reasonable 
assurance that the fuel can be stored safely at the sites beyond those 
dates.'' (Id. at 418 (emphasis added)). The Court further ``agree[d] 
with the Commission that it may proceed in these matters by generic 
determinations.'' (Id. at 419). The first Waste Confidence Decision and 
Rule were issued in 1984, and updated in 1990 and 2010. The Commission 
continues to use the Decision and Rule to satisfy both the direction of 
the Court (to determine whether there is reasonable assurance that fuel 
can be stored safely beyond the expiration of the license) and to 
provide a generic determination of its obligations under NEPA to assess 
the environmental impacts of the storage of SNF and HLW waste after the 
expiration of a license.
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    \1\ The licenses of the two plants at issue in this case would 
have expired in 2007 and 2009.
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    Based upon its analysis of Mr. Kane's petition, the NRC has 
concluded that the petition should be denied. The petition does not 
provide sufficient justification to support the assertion that

[[Page 10807]]

10 CFR 51.23 should be rescinded because the Commission's analysis does 
not consider political issues and because the Yucca Mountain repository 
program is no longer being funded. As discussed above, the NRC has 
shown that the Commission's analysis supporting the Waste Confidence 
Update and Rule does not depend on the availability of Yucca Mountain 
and does consider the political issues associated with a repository 
program. The NRC has also demonstrated that both the 1990 and 2010 
updates to the Waste Confidence Decision and Rule assumed that Yucca 
Mountain would not be built. The cessation of the Yucca Mountain 
program, whether for political, technical, or other reasons, is 
irrelevant to the continued viability of the Waste Confidence Decision 
and Rule because, for the purposes of the Waste Confidence Decision and 
Rule, the NRC has consistently assumed that Yucca Mountain would not be 
built. The NRC is therefore denying Mr. Kane's petition for rulemaking.

Public Comments on the Petition

    The NRC received 10 comments on this petition for rulemaking.

Comment 1

    Neal Hunemuller submitted a comment asking that the NRC address the 
laws that provided the basis for the Waste Confidence Decisions (49 FR 
34658; August 31, 1984, 55 FR 38474; September 18, 1990, and 75 FR 
81037).

NRC Response

    The Commission developed the Waste Confidence Decision and Rule as 
a result of several cases that set out the NRC's obligations with 
respect to safe storage and disposal of SNF and HLW under the Atomic 
Energy Act of 1954, Public Law 83-703, 68 Stat. 26 (codified as amended 
in scattered sections of 42 U.S.C.) (AEA) and NEPA. The AEA requires 
the NRC to establish standards to govern the civilian use of nuclear 
material and facilities, as the Commission may deem necessary to 
protect public health and safety and the common defense and security; 
and NEPA directs Federal agencies to evaluate the environmental impacts 
of major Federal actions that significantly affect the quality of the 
human environment. In 1978, the Court of Appeals for the Second Circuit 
held that the NRC was not required to withhold action on pending or 
future applications for nuclear power reactor operating licenses until 
it makes a determination that high-level radioactive wastes can be 
permanently disposed of safely. (NRDC v. NRC, 582 F.2d 166, 175 (2d 
Cir. 1978)). In 1979, the Court of Appeals for the DC Circuit 
considered whether the NRC ``must take into account the safety and 
environmental implications of maintaining the reactor site as a nuclear 
waste disposal site after the expiration of the license term'' if no 
off-site interim storage facility or ultimate disposal solution is 
available. (State of Minnesota v. NRC, 602 F.2d 412, 416 (1979)). The 
Court remanded the issue to the NRC and instructed the agency to 
consider ``whether there is reasonable assurance that an off-site 
storage solution will be available by the years 2007-09 * * * and if 
not, whether there is reasonable assurance that the fuel can be stored 
safely at the sites beyond those dates.'' (Id. at 418). Further, the 
Court held that this finding could be made by a generic determination 
(Id. at 419). This generic determination was promulgated as the NRC's 
1984 Waste Confidence Decision and Rule (49 FR 34658 and 34688).

Comment 2

    Jason Hout submitted a comment opposing the petition. He argued 
that because operating nuclear power plants can safely store SNF, their 
operation should not be directly tied to the availability of SNF 
disposal.

NRC Response

    The NRC agrees that the petition should be denied. As noted above, 
recent developments regarding the development and licensing of the 
repository at Yucca Mountain, including the Department of Energy's 
motion to withdraw its application, do not mean that the recent Waste 
Confidence Decision and Rule are invalid; the Waste Confidence Decision 
and Rule assume that the repository at Yucca Mountain will not be 
built.

Comment 3

    Paul M. Krishna submitted a comment supporting the petition, which 
stated that the Secretary of Energy's direction to the Blue Ribbon 
Commission (BRC) to not consider mined geologic disposal flies in the 
face of the Waste Confidence Rule. He argued that the DOE's motion to 
withdraw the Yucca Mountain licensing application potentially results 
in nuclear power plant licenses violating the Waste Confidence Rule and 
that this violation should affect the granting of any construction 
permits, operating licenses, or combined construction permit and 
operating licenses for any future nuclear power plants. Mr. Krishna 
stated that the NRC needs to either grant DOE's motion to withdraw the 
Yucca Mountain license application and stop licensing all future 
nuclear power plants, or deny the motion and continue the licensing 
process for Yucca Mountain. Finally, Mr. Krishna questioned whether the 
NRC was planning to ``come up with another waste confidence rule which 
states that on-site storage of SNF and HLW is safe and secure for 
another 100 years, by which time we might have a repository,'' which he 
claims ``will not work.''

NRC Response

    The NRC believes that Mr. Krishna has misinterpreted the Secretary 
of Energy's direction to the BRC; the BRC was not directed to refrain 
from considering geologic disposal. Instead, the BRC charter 
specifically directs it to, ``provide advice, evaluate alternatives, 
and make recommendations for a new plan to address these issues, 
including * * * Options for permanent disposal of used fuel and/or 
high-level nuclear waste, including deep geologic disposal * * *'' 
(emphasis added) See, http://brc.gov/pdfFiles/BRC_Charter.pdf.
    The NRC also disagrees with Mr. Krishna's assertion that the 
withdrawal of the Yucca Mountain license application would result in 
current or future power plant licenses violating the Waste Confidence 
Rule. As discussed above, the Waste Confidence Rule is a generic 
determination of the environmental impacts of post-licensed life 
storage, which does not depend on a disposal site at Yucca Mountain. 
Further, both the Waste Confidence Decision and Rule assume that Yucca 
Mountain will not be built. For the purposes of the update to the Waste 
Confidence Decision and Rule, the Commission has consistently assumed, 
in both the proposed and final Rule and Decision, that Yucca Mountain 
would not be built (73 FR 59556; October 9, 2008 and 75 FR 81040). The 
Waste Confidence Decision and Rule are based on technological 
developments, increased scientific understanding, and a review of 
international experience and progress with repositories, not the 
ultimate availability of the Yucca Mountain repository (75 FR 81032 and 
81037).
    As noted previously, the Waste Confidence Decision and Rule are 
separate from the Yucca Mountain licensing decision--they assume that a 
repository is not constructed at the Yucca Mountain site. It does not 
follow from the NRC's pending decision on the DOE's motion to withdraw 
the Yucca Mountain application that the licensing of new nuclear power 
plants would have to cease if the DOE's motion is granted. Whatever 
decision the Commission eventually makes in the

[[Page 10808]]

Yucca Mountain proceeding will have no direct effect on the Waste 
Confidence Decision and Rule.
    Mr. Krishna also questioned whether the NRC plans to conduct 
another Waste Confidence rulemaking to look at storage for more than 60 
years after the end of licensed life. In the Staff Requirements 
Memorandum for the recent update to the Waste Confidence Decision and 
Rule, the Commission instructed the staff to prepare a plan for a 
longer-term rulemaking that would update the Waste Confidence Decision 
and Rule to address the impacts of storing SNF for more than the 120 
years considered in the current Waste Confidence Rule. (ADAMS Accession 
No. ML102580229). Mr. Krishna's assertion that a longer-term Waste 
Confidence Rule would not work is speculative. NRC rulemakings are 
conducted in a manner to ensure that the agency's actions comply with 
applicable laws (e.g., the AEA, the Administrative Procedure Act, and 
NEPA). NRC rulemaking procedures will provide an opportunity for public 
comment when Mr. Krishna can comment on the actual substance of a 
proposed rule once it is developed.

Comment 4

    James Blaylock commented that continued nuclear power generation is 
based on a solution to nuclear waste disposal, and that without a 
defined program the Federal government has now invalidated that 
commitment. Mr. Blaylock stated that long-term storage is not an 
acceptable approach, and that he supports the petition.

NRC Response

    As noted in Finding 4 of the Commission's Waste Confidence 
Decision, the Commission finds reasonable assurance that SNF 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 SNF storage basin and either 
onsite or offsite independent spent fuel storage installations.
    The Commission does not agree that the Federal government has 
invalidated its commitment to provide for SNF disposal. The Federal 
government continues to evaluate options for the ultimate disposal of 
SNF and HLW; the Waste Confidence Decision does not consider the 
indefinite storage of SNF; disposal is still the ultimate goal (75 FR 
81041); and the Nuclear Waste Policy Act is still the law. The Act 
continues to mandate disposal in a repository, the collection of funds 
for the Nuclear Waste Fund, and that the Federal Government ``has the 
responsibility to provide for the permanent disposal of'' HLW and SNF. 
(42 U.S.C. 10131 (2006)). Concurrent with its recent motion to withdraw 
the Yucca Mountain application, the Secretary of Energy created the 
Blue Ribbon Commission on America's Nuclear Future to evaluate, assess, 
and advise on possible alternatives for storage, management, and 
ultimate disposal of SNF and HLW (part of this evaluation will explore 
the need for additional or amended legislation). (http://brc.gov/pdfFiles/BRC_Charter.pdf). These measures demonstrate the Federal 
government's continued commitment to addressing the nuclear waste 
disposal problem even in the absence of the development of a repository 
at Yucca Mountain.

Comment 5

    David Hathcock submitted a comment, which stated in full: ``I agree 
with this Proposed Rule change. I am a concerned individual.''

NRC Response

    Although Mr. Hathcock expressed support for the petition, the NRC 
believes that its decision to deny the petition is correct. As stated 
above:
    (1) The Department of Energy's decision to withdraw its application 
for a repository at Yucca Mountain does not mean that the Waste 
Confidence Decision and Rule should be revoked. The Waste Confidence 
Decision and Rule assume that Yucca Mountain will not be built.
    (2) Revocation of 10 CFR 51.23 would not result in the end of 
reactor licensing or relicensing. Without the Waste Confidence Decision 
and Rule, the NEPA evaluation of post-licensed life storage of SNF 
would be included in each individual licensing action.

Comment 6

    Winston Hamilton Jr., P.E. submitted a comment opposing the 
petition. Mr. Hamilton argued that cutting the funding to the Yucca 
Mountain project is not directly related to the nuclear industry. He 
also stated that he was ``surprised'' to see such a notice published in 
the Federal Register by the NRC.

NRC Response

    The NRC agrees that the petition should be denied. As noted above, 
the Waste Confidence Decision and Rule assume that a repository is not 
built at Yucca Mountain.
    The NRC also agrees that cutting the funding for the Yucca Mountain 
project does not immediately affect operating reactor performance. As 
noted in Finding 3 of the Waste Confidence Decision, 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. (75 FR 81067).
    With respect to publication of the PRM, the NRC published the PRM 
because, in accordance with 10 CFR 2.802(e), the NRC found that the 
petition satisfied the requirements of Sec.  2.802(c).

Comment 7

    Noah Miska submitted a comment supporting the petition. Mr. Miska 
expressed support for the ultimate goal of the petition--the cessation 
of new reactor licensing and the phasing out of existing plants--
because he believes that granting the petition is ``necessary to make 
up for the loss of the proposed Yucca Mountain nuclear waste storage 
facility.'' Further, Mr. Miska argued that granting the petition would 
result in the end of the production of new SNF and HLW, which he 
believes represents ``too great a risk to the public's well being to 
justify their existence.'' Mr. Miska also noted that the reduction in 
nuclear power capacity could be offset by ``investments in wind and/or 
solar infrastructure, which could potentially create many thousands of 
new jobs.''

NRC Response

    As noted in the response to Mr. Kane's petition, the revocation of 
the Waste Confidence Rule would not result in the end of nuclear 
reactor licensing or relicensing. Rather, the NEPA evaluation of post-
licensed-life storage would shift from the generic determination in the 
Waste Confidence Rule to individual licensing proceedings.
    Mr. Miska is correct that reaching the ultimate goal of the 
petition--the cessation of new reactor licensing and the phasing out of 
existing plants--would result in the end of the production of civilian 
SNF. But as discussed generically in the Waste Confidence Decision and 
specifically in each licensing decision, the NRC has evaluated the 
risks of licensing these facilities and has determined that the 
facilities can be licensed in accordance with its regulations. To the 
extent that Mr. Miska believes that no risk from nuclear power is 
acceptable, Congress has spoken otherwise: The NRC has been directed by 
Congress in the AEA to establish regulations that allow for the 
licensing of nuclear power plants and provide reasonable assurance of 
the

[[Page 10809]]

protection of the public health and safety and common defense and 
security.
    Finally, the NRC acknowledges that a reduction in nuclear power 
capacity could be offset by increased use of wind or solar power 
(although the amount to which the base-load power provided by nuclear 
power could be offset by solar and wind power is still uncertain). 
These matters, however, are matters of national energy policy and are 
not within the NRC's jurisdiction to consider. The NRC does not promote 
the use of nuclear power or any other means of producing power. Rather, 
NRC is charged with making sure that as long as national energy policy 
includes nuclear power, nuclear power plants are operated safely and 
securely and in compliance with regulatory requirements.

Comment 8

    The Nuclear Energy Institute (NEI) submitted comments opposing the 
petition on several grounds. NEI first argued that any NRC 
consideration of the impacts of recent developments in the Yucca 
Mountain project should be considered within the then ongoing Waste 
Confidence proceeding. Second, NEI argued that as rulemakings consider 
issues generically, it is inappropriate to consider Mr. Kane's request 
for cessation of new plant licensing and the phase-out of currently 
operating plants.

NRC Response

    The NRC agrees that the petition should be denied. As noted 
previously, the Waste Confidence Decision and Rule do not depend upon 
the availability of the repository at Yucca Mountain. Although the NRC 
agrees with NEI that separate consideration of an ongoing rulemaking on 
individual dockets is inappropriate, Entergy Nuclear Operations (Indian 
Point, Units 2 and 3), CLI-10-19, 72 NRC ---- (July 8, 2010) (slip op. 
at 2-3) (``Under longstanding NRC policy, licensing boards should not 
accept in individual license proceedings contentions which are (or are 
about to become) the subject of general rulemaking by the Commission'' 
(citation omitted)), Mr. Kane has not requested that his petition be 
considered in individual dockets, but has instead requested generic 
relief.
    Thus, the NRC does not agree with NEI's suggestion that the 
petition should be denied because it seeks resolution of a generic 
issue on individual dockets.

Comment 9

    The DOE submitted comments opposing the petition. The Department 
argued that the issues raised in the petition fall squarely within the 
Commission's recently concluded Waste Confidence rulemaking, and that 
the Waste Confidence rulemaking is not dependent upon the availability 
of Yucca Mountain for waste disposal. The DOE also noted that dry 
storage technology provides DOE with sufficient time to meet its 
obligations for a permanent waste disposal under the Nuclear Waste 
Policy Act.

NRC Response

    The NRC agrees that the petition should be denied. As noted 
previously, the Waste Confidence Decision and Rule do not depend upon 
the availability of the repository at Yucca Mountain. Further, both the 
Waste Confidence Decision and Rule assume that Yucca Mountain will not 
be built. In its recent Waste Confidence Decision and Rule, the 
Commission affirmed its position on the temporary storage of SNF 
pending the construction of a repository. Whether DOE has met its 
obligations under the Nuclear Waste Policy Act is outside the scope of 
the Commission's Waste Confidence Decision and Rule.

Comment 10

    J. Russell Dyer submitted a comment supporting the petition. He 
raised two concerns: intergenerational equity and the effect of social 
and political stability on the long-term storage and eventual disposal 
of SNF and HLW. Mr. Dyer argued that without a ``considered national 
policy to replace the Nuclear Waste Policy Act'' the United States 
should cease generating the hazardous burden of SNF and HLW. Mr. Dyer 
urged the NRC to suspend existing reactor licenses, curtail license 
extension actions, and refrain from granting new construction or 
operating licenses.

NRC Response

    Mr. Dyer is correct that intergenerational equity was considered in 
the Nuclear Waste Policy Act and the Commission's Waste Confidence 
Decision. (42 U.S.C. 10131 (2006) and 75 FR 81048). But 
intergenerational equity does not dictate that a disposal facility must 
be available when a nuclear power plant is licensed; as noted in the 
Waste Confidence Decision: ``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.'' (75 FR 
81048). Further, this concern was evaluated by the Court of Appeals for 
the Second Circuit in NRDC v. NRC. In that case, the Court held that 
the AEA did not require the NRC to make a finding that safe permanent 
disposal was available when a license is issued. (NRDC v. NRC, 582 F.2d 
166, 175 (2d Cir. 1978)). Consistent with that decision, in the Waste 
Confidence Decision and Rule, the NRC found reasonable assurance of 
safe storage of SNF for at least 60 years beyond the licensed life for 
operation of any reactor and that repository capacity will be available 
when necessary. (75 FR 81067).
    The Federal government continues to evaluate options for the 
ultimate disposal of SNF and HLW. Although the Waste Confidence 
Decision does not consider the indefinite storage of SNF, disposal in a 
geologic repository is still the ultimate goal (75 FR 81041). The 
Nuclear Waste Policy Act is still the law: The Act continues to mandate 
disposal in a repository, the collection of funds for the Nuclear Waste 
Fund, and that the Federal Government ``has the responsibility to 
provide for the permanent disposal of'' HLW and SNF. 42 U.S.C. 1013 
(2006). Concurrent with its recent motion to withdraw the Yucca 
Mountain application, the Department of Energy created the Blue Ribbon 
Commission on America's Nuclear Future to evaluate, assess, and advise 
on possible alternatives for storage, management, and ultimate disposal 
of SNF and HLW (part of this evaluation will explore the need for 
additional or amended legislation). (http://brc.gov/pdfFiles/BRC_Charter.pdf). These measures demonstrate the Federal government's 
continued commitment to addressing the nuclear waste disposal problem 
in this generation.
    Mr. Dyer's comment links political and social stability with the 
ability to determine and implement a final disposal solution. As 
explained in the Waste Confidence Decision and Rule, the Commission has 
confidence that the political and institutional hurdles to determining 
a path forward can be overcome. (75 FR 81049). This conclusion is 
supported by a review of international progress on licensing a deep 
geologic repository. (See 75 FR at 81065-81066). In addition to 
benefiting from international experience, any new repository program 
would benefit from the lessons learned through the preparation and 
review of the Yucca Mountain license application. Although the 
Commission recognizes the need for broad public support before a 
successful repository program can be achieved (75 FR 81066), the 
ongoing efforts of the NRC and other Federal entities provide 
reasonable assurance that this generation will deal with the ultimate 
disposal of SNF and HLW.

[[Page 10810]]

Determination of Petition

    For reasons discussed above, the NRC denies PRM-51-13.

    Dated at Rockville, Maryland, this 16th day of February 2011.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2011-4347 Filed 2-25-11; 8:45 am]
BILLING CODE 7590-01-P


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