Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 10805 

amended, 3 CFR, 1995 Comp., p. 333; E.O. 

12968, 3 CFR, 1995 Comp., p.391. 

43. Section 54.27 is revised to read as 

follows: 

§ 52.27 Hearings. 

A notice of an opportunity for a 

hearing will be published in the Federal 

Register in accordance with 10 CFR 

2.105 and 2.309. In the absence of a 

request for a hearing filed within 60 

days by a person whose interest may be 

affected, the Commission may issue a 

renewed operating license or renewed 

combined license without a hearing 

upon a 30-day notice and publication in 

the Federal Register of its intent to do 

so. 

Dated at Rockville, Maryland, this 22nd 

day of February 2011. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2011–4345 Filed 2–25–11; 8:45 am] 

BILLING CODE 7590–01–P 

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. 

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: 

• 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. 

• 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 pdr.resource@nrc.gov. 

• 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 

Carol.Gallagher@nrc.gov. 

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: 

tison.campbell@nrc.gov; or Lisa London, 

Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555, telephone: 301– 

415–3233, e-mail: lisa.london@nrc.gov. 

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. 


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1The licenses of the two plants at issue in this 

case would have expired in 2007 and 2009. 

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 longterm 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. 

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 


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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 


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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 

§ 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 


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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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
10810 Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules 

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 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 61 

[NRC–2011–0043] 

Public Workshop to Discuss Low-Level 

Radioactive Waste Management 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Public Workshop and Request 

for Comment. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC), in coordination 

with the U.S. Department of Energy 

(DOE), plans to conduct a workshop to 

discuss possible approaches to revising 

the regulatory framework for the 

management of commercial low-level 

radioactive waste (LLW). The purpose of 

this workshop is to gather information 

from a broad spectrum of stakeholders 

concerning the NRC’s proposed options 

for a comprehensive revision to NRC’s 

and DOE’s waste regulations and to 

discuss possible options. 

DATES: The workshop will be on March 

4, 2011, in Phoenix, Arizona. To 

participate online, see Section II of the 

SUPPLEMENTARY INFORMATION section of 

this notice. Comments on the issues and 

questions presented in Section III of the 

SUPPLEMENTARY INFORMATION section of 

this notice are due March 30, 2011. 

ADDRESSES: The public workshop will 

be held on March 4, 2011, from 8:30 

a.m. to 5:30 p.m. at the Hyatt Regency 

Phoenix Hotel, 122 North Second Street, 

Phoenix, AZ 85004. The NRC will 

accept public comments at the public 

workshop. You may also submit 

comments by any one of the following 

methods. Please include Docket ID 

NRC–2011–0043 in the subject line of 

your comments. Comments submitted in 

writing or in electronic form will be 

posted on the NRC Web site and on the 

Federal rulemaking Web site, http:// 

www.regulations.gov. Because your 

comments will not be edited to remove 

any identifying or contact information, 

the NRC cautions you against including 

any information in your submission that 

you do not want to be publicly 

disclosed. 

The NRC requests that any party 

soliciting or aggregating comments 

received from other persons for 

submission to the NRC inform those 

persons that the NRC will not edit their 

comments to remove any identifying or 

contact information, and therefore, they 

should not include any information in 

their comments that they do not want 

publicly disclosed. 

Federal rulemaking Web site: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2011–0043. Address questions 

about NRC dockets to Ms. Carol 

Gallagher, telephone: 301–492–3668, 

e-mail: Carol.Gallagher@nrc.gov. 

Mail comments to: Ms. Cindy Bladey, 

Chief, Rules, Announcements and 

Directives Branch (RADB), Division of 

Administrative Services, Office of 

Administration, Mail Stop: TWB–05– 

B01M, U.S. Nuclear Regulatory 

Commission, Washington, DC. 20555– 

0001, or by fax to RADB at 301–492– 

3446. 

You can access publicly available 

documents related to this notice 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 

20852–2738. 

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 

pdr.resource@nrc.gov. 

Federal rulemaking Web site: Public 

comments and supporting materials 

related to this notice can be found at 

http://www.regulations.gov by searching 

on Docket ID: NRC–2011–0043. 

FOR FURTHER INFORMATION CONTACT: 

Michael P. Lee, Ph.D., Office of Federal 

and State Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone: 301–415– 

6887; e-mail: Mike.Lee@nrc.gov; Donald 

B. Lowman, Office of Federal and State 

Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone: 301–415– 

5452; e-mail: Donald.Lowman@nrc.gov; 

or Antoinette Walker-Smith, Office of 

Federal and State Materials and 

Environmental Management Programs, 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555–0001; telephone: 

301–415–6390; e-mail: 

Antoinette.Walker-Smith@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Commission’s licensing 

requirements for the disposal of LLW in 

near-surface [approximately the 

uppermost 30 meters (100 feet)] 

facilities reside in part 61. These 

regulations were published in the 

Federal Register on December 27, 1982 

(47 FR 57446). The rule applies to any 

near-surface LLW disposal technology, 

including shallow-land burial, 

engineered land disposal methods such 

as below-ground vaults, earth-mounded 

concrete bunkers, and augered holes. 

The regulations emphasize an integrated 

systems approach to the disposal of 

commercial LLW, including site 

selection, disposal facility design and 

operation, minimum waste form 

requirements, and disposal facility 

closure. To lessen the burden on society 

over the long periods of time 

contemplated for the control of the 

radioactive material, and thus lessen 

reliance on institutional controls, part 

61 emphasizes passive rather than 

active systems to limit and retard 

releases to the environment. 

Development of the part 61 regulation 

in the early 1980s was based on several 

assumptions as to the types of wastes 

likely to go into a commercial LLW 

disposal facility. To better understand 

what the likely inventory of wastes 

available for disposal might be, the NRC 

conducted a survey of existing LLW 

generators. The survey, documented in 

Chapter 3 of NUREG–0782—the Draft 

part 61 Environmental Impact Statement 

(DEIS)—revealed that there were about 

36 distinct commercial waste streams 

consisting of about 24 radionuclides of 

potential regulatory interest. The 

specific waste streams in question were 

representative of the types of 

commercial LLW being generated at the 

time. Waste streams associated with 

DOE’s nuclear defense complex were 

not considered as part of the survey, 

since disposal of those wastes, at that 

time, was to be conducted at the DOEoperated sites. Over the last several 

years there have been a number of 

developments that have called into 

question some of the key assumptions 


srobinson on DSKHWCL6B1PROD with PROPOSALS