September 6, 2012 

 

 

MEMORANDUM TO: R. W. Borchardt 

 Executive Director for Operations 

FROM: Annette L. Vietti-Cook, Secretary /RA by Andrew L. Bates/ 

SUBJECT: STAFF REQUIREMENTS – COMSECY-12-0016 – APPROACH 

FOR ADDRESSING POLICY ISSUES RESULTING FROM 

COURT DECISION TO VACATE WASTE CONFIDENCE 

DECISION AND RULE 

The staff should proceed directly with development of a generic environmental impact statement 

(EIS) to support an updated Waste Confidence Decision and temporary storage rule. The staff 

should establish a schedule to publish a final rule and EIS within 24 months from the date of this 

staff requirements memorandum (the Federal Register Notice that announces the final rule 

would also satisfy the Commission’s obligations related to a “Waste Confidence decision”). 

Recognizing that meeting this schedule will require an expenditure of agency resources that 

was not previously contemplated, the staff should provide the Commission with full information 

about how it plans to fund and staff this vital task and how it will impact other work, including 

redirecting resources in FY2013 and FY2014 that are currently planned to support a long-term 

Waste Confidence EIS and temporary storage rule. In addition, as this effort moves forward, 

the staff should come to the Commission if additional resources are needed to meet this 

schedule. 

 

The NRC has a long, rich history with our Waste Confidence determinations that can and should 

be drawn upon in addressing the D.C. Circuit’s directives on remand. The EIS and rule should 

build upon the existing Environmental Assessment that the NRC developed as part of the 2010 

Waste Confidence Decision. Specifically, the staff should use the analyses in the 2010 Waste 

Confidence Decision to the extent possible and should primarily focus any additional analyses 

on the three deficiencies identified in the D.C. Circuit’s decision. The staff, as appropriate, may 

adopt or incorporate by reference all or part of another agency’s EIS. For example, the 

Department of Energy’s (DOE) “no action alternative” in the Yucca Mountain EIS, which the 

agency adopted in 2008 as part of its review of DOE’s license application, contains a foundation 

that the NRC should build upon. There are also numerous other technical documents and 

reports on related issues, such as the impacts of transportation and consolidated storage, that 

can, and should, be used to support the necessary analyses. 

When developing the EIS, the staff should be mindful of the Council on Environmental Quality’s 

Guidance on Improving the Process for Preparing Efficient and Timely Reviews Under NEPA, 

which states that: 

• NEPA encourages straightforward and concise reviews of documentation that are 

proportionate to potential impacts and effectively convey the relevant considerations to 

the public and decision-makers in a timely manner while rigorously addressing the issue 

presented; 
• NEPA shall be integrated into project planning to ensure planning and decisions reflect 

environmental considerations, avoid delays later in the process, and anticipate and 

attempt to resolve potential issues rather than become an after-the fact process that 

justifies a decision already made; 

• NEPA reviews should coordinate and take appropriate advantage of existing documents 

and studies, including through adoption and incorporation by reference; 

 

• Early and well-defined scoping can assist in focusing environmental reviews on 

appropriate issues that would be meaningful to a decision; and 

• Agencies are encouraged to develop meaningful and expeditious timelines for 

environmental reviews and respond to comments in proportion to the scope and scale of 

the environmental issues raised. 

The staff must also provide ample opportunity for public comment as it pursues a timely 

rulemaking on remand to ensure that the staff has a broad range of views to consider as it 

completes the analysis. There are efficiencies that can, and should, be gained that would still 

allow for fulsome stakeholder engagement. These efficiencies include the use of an inter-office 

team consisting of the agency’s most accomplished NEPA practitioners to develop the EIS as 

well as holding public meetings and resolving comments in parallel with the comment period. 

Because of the high priority that this matter demands, and the high interest it has engendered, 

use of these and other new approaches within our existing process for EIS development will 

ensure that the agency acts with the urgency that this matter deserves. 

The Commission supports maintaining the option to conduct some environmental analyses of 

waste confidence issues on a site-specific basis in support of licensing decisions, but cautions 

that such a step should be used only in rare circumstances in which there is an exceptional or 

compelling need to proceed otherwise and proceeding with the site-specific review would not 

delay or create inconsistencies with development of the generic EIS. Should the staff identify 

the need to conduct any site-specific analysis prior to the completion of the generic analysis, it 

should submit an information paper to the Commission prior to beginning the site-specific 

review. The information paper should include a description of what issues, if any, are delaying 

achievement of the 24 month schedule, what issues require completion of a site-specific 

analysis in advance of the generic analysis, and what other possible remedies could address 

these issues. 

cc: Chairman Macfarlane 

 Commissioner Svinicki 

 Commissioner Apostolakis 

 Commissioner Magwood 

 Commissioner Ostendorff 

 OGC 

 CFO 

 OCA 

 OPA 

 Office Directors, Regions, ACRS, ASLBP (via E-Mail) 

 PDR