POLICY ISSUE

(Information) 

February 28, 2014 SECY-14-0025

FOR: The Commissioners 

FROM: Mark A. Satorius 

Executive Director for Operations 

SUBJECT: WASTE CONFIDENCE—CONTINUED STORAGE OF SPENT 

NUCLEAR FUEL PROPOSED RULE: PUBLIC FEEDBACK ON 

SPECIFIC ISSUES 

PURPOSE:

The purpose of this paper is to summarize comments the U.S. Nuclear Regulatory Commission 

(NRC) staff received in response to the four issues on which the Commission specifically sought 

comment in conjunction with the proposed Waste Confidence Rule. This paper also identifies 

common topics raised in the comments submitted on the proposed rule and draft Generic 

Environmental Impact Statement (GEIS). 

SUMMARY:

As directed by the Commission in the staff requirements memorandum (SRM) for 

SECY-13-0061, “Proposed Rule: Waste Confidence—Continued Storage of Spent Nuclear 

Fuel,” the NRC asked for public comment on four specific issues. The NRC staff received a 

large number and a wide variety of comments on the proposed Waste Confidence Rule and 

draft GEIS. 

CONTACT: Drew Stuyvenberg, NMSS/WCD 

 301-287-0756 
The Commissioners 2 

Commenters included Tribal governments1, State governments2, industry groups3, advocacy 

groups4

, and individuals. The U.S. Environmental Protection Agency (EPA) also provided 

comments under its authority to review environmental impact statements.5

 In response to the 

four issues, commenters expressed support for removing statements from the rule regarding the 

timeline for repository availability and supported retaining a statement regarding the safety of 

continued spent nuclear fuel storage. With respect to whether the NRC should streamline the 

statements of consideration and rule, about an equal number of commenters supported and 

opposed this change. Finally, commenters expressed nearly universal support for changing the 

title of the rule. 

BACKGROUND:

In the SRM for SECY-13-0061 (August 5, 2013), the Commission directed the staff to “develop, 

and insert into the draft Federal Register notice questions, soliciting public comments” on four 

issues, as follows: 

(1) Whether specific policy statements regarding the timeline for repository availability 

should be removed from the rule text (“Issue 1”). 

(2) Whether specific policy statements regarding the safety of continued spent fuel storage 

should be made in the rule text given the expansive and detailed information in the draft 

GEIS (“Issue 2”). 

(3) Whether it would improve clarity for NRC to streamline the statements of consideration 

and rule by removing the content that is merely repeated from the draft GEIS (“Issue 3”). 

(4) Whether the title of the rule should be changed in light of a GEIS being issued instead of 

a separate Waste Confidence Decision (“Issue 4”). 

The staff included these four issues in Section IV of the Federal Register notice for the 

proposed rule.6

 

 

1

 See, for example, comments from the Prairie Island Indian Community (PIIC). See Agencywide Documents Access 

and Management System (ADAMS) Accession No. ML14014A319 for comments from PIIC, and ML13365A345 for 

comments jointly submitted by PIIC and the States of New York, Vermont, Connecticut, and the Commonwealth of 

Massachusetts. 

2

 In addition to the joint comments identified in footnote 1, other comments from State governments include, for 

example, the State of Arkansas Department of Health (ML14015A083), the State of South Carolina’s Governor’s 

Nuclear Advisory Council (ML13329A938), the State of New York’s additional comments (ML13361A000), and the 

State of Vermont’s additional comments (ML14006A368). 3 For examples, see comments from the Nuclear Energy Institute (ML14001A002) and the Decommissioning Plant 

Coalition (ML13358A384). 

4

 These include, but are not limited to, Natural Resources Defense Council (ML13360A365), multiple Sierra Club 

organizations (whose members, affiliates, or allies also generated approximately 22,000 form letters), and a group of 

33 environmental organizations represented by attorney Diane Curran (ML14030A152). Other examples are 

available upon request. 

5 42 U.S.C. § 7609 (2013). See Comments of Susan E. Bromm, Director of EPA’s Office of Federal Activities, 

ML14016A089. 

6

 Proposed Rule, Waste Confidence—Continued Storage of Spent Nuclear Fuel, 78 FR 56775, 56799. 
The Commissioners 3 

From September 13, 2013, through December 20, 20137, the NRC solicited and received public 

comments through multiple avenues, including listening to and receiving:

• Verbal and written comments at 13 public meetings held at locations throughout the 

United States. 

• Written comments through electronic means including e-mail, the Federal Rulemaking 

Web site at www.regulations.gov, fax, and mailed electronic media. 

• Written comments through conventional mail.

• Written comments hand-delivered to NRC headquarters. 

The comment period was initially planned to end on November 27, 2013, but the NRC extended 

the comment period to December 20, 2013, in response to the October 2013 government 

shutdown, which caused the agency to reschedule Waste Confidence public meetings. 

Public meetings were held at NRC headquarters (three total: two with in-person and 

teleconferenced attendees; one with only teleconferenced attendees); Denver, Colorado; 

Chelmsford, Massachusetts; Tarrytown, New York; Charlotte, North Carolina; Orlando, Florida; 

Oak Brook, Illinois; Carlsbad, California; San Luis Obispo, California; Perrysburg, Ohio; and 

Minnetonka, Minnesota. In sum, approximately 1,400 individuals attended at least one of the 

Waste Confidence public meetings during the comment period, and nearly 500 individuals 

provided oral statements. 

To focus attention on the four issues, the staff highlighted them in the narrative that 

accompanied its presentation at each public meeting. In addition, the staff provided copies of 

the proposed rule to attendees at all meetings, and it developed a single-page, single-sided 

handout that specifically identified and presented the four issues. The handout was also 

available on the NRC Waste Confidence Web site. 

In response to efforts to solicit public input, a wide array of interest groups and individuals 

participated. The staff has received more than 33,000 items of correspondence and recorded 

more than 1,600 pages of transcribed comments on the proposed Waste Confidence Rule and 

draft GEIS. Approximately 32,000 of the 33,000 submitted items of correspondence were “form” 

letters. Of these 33,000 total items and 1,600 pages of transcripts, approximately 1,500 unique 

submissions (oral and written) were identified, which resulted in nearly 9,000 unique comments8

on the draft GEIS and proposed rule. At this time, the staff is thoroughly reviewing, considering, 

and responding to these comments, and then will work to modify the GEIS and rule, as 

necessary. 

All public comments have been catalogued, grouped, and summarized. The staff will develop 

responses to all timely public comments and make any necessary changes to the draft GEIS 

and rule in the next few months. The staff continues to make every effort to deliver a highquality draft final GEIS and rule for Commission review to support publication of the rule in the 

fall of 2014. 

 

7 78 FR 66858. 

8

 The term “comment” refers to a specific issue raised by a commenter. Many items of correspondence raise more 

than one issue, so the number of comments (nearly 9,000) exceeds the number of unique submissions 

(approximately 1,500). 
The Commissioners 4 

DISCUSSION:

Public comments on the four issues are discussed in detail below: 

Issue 1: Whether specific policy statements regarding the timeline for repository 

availability should be removed from the rule text

Issue 1 involves the question whether the Waste Confidence Rule should include an expected 

date for a repository to become available. Commenters9 who responded to Issue 1 generally 

expressed support for removing a statement regarding the repository availability timeline from 

the rule. Reasons cited for this support varied, but commonly included a lack of NRC control 

over repository timelines and previous failures in accurately predicting when a repository would 

become available. Commenters also noted that a timeline should not be included because: it is 

unnecessary to provide a repository timeline in an environmental impact statement, “when 

necessary” is a more appropriate statement, siting a repository is impossible, and including a 

statement about repository availability ties the United States to repository disposal of spent fuel 

to the exclusion of other disposal options, such as reprocessing. 

The commenters who expressed support for retaining a statement regarding the timeline for 

repository availability stated that: having a timeline for repository availability in the rule affirms 

the importance of repository disposal, and the timeline is an important element of a “contract” 

that the commenter asserted the public has with the nuclear industry. One commenter who 

expressed support for retaining a timeline for repository availability did not provide supporting 

rationale. 

Issue 2: Whether a specific policy statement regarding safety of continued storage 

should be made in the rule text 

Issue 2 pertains to the question whether a specific statement regarding the safety of continued 

spent fuel storage should be made in the rule, in view of the fact that the NRC now has 

prepared a generic determination on the environmental impacts of continued storage. As noted 

in the proposed rule, the GEIS does not provide a safety analysis for storage; rather, a safety 

evaluation would still be required to support approval of a new cask design, to support a sitespecific license for dry storage, or to store spent fuel in a spent fuel pool. 

Commenters10 who responded to Issue 2 generally expressed support for a policy statement 

regarding safety of continued storage in the rule text, citing a wide variety of rationales. Some 

 

9 Commenters included Robert Vandenbosch, in ML13269A414; David A. Pelletier, UA Local 131, in ML13312A354; 

Susan Shapiro, Radiation Public Health Project, in meeting transcript ML13318A129; Ryan Brookhart, in meeting 

transcript ML13323B474; the South Carolina Governor’s Nuclear Advisory Council, in ML13329A938; John 

Greenwood, in meeting transcript ML13340A572; New York, Vermont, Connecticut, Massachusetts, and the Prairie 

Island Indian Community, in ML13365A345; Janet Kotra, in ML13353A729; the Nye County Nuclear Waste 

Repository Project Office, in ML13354A007; David Schonberger, in ML13357A316; the Prairie Island Indian 

Community, in ML14014A319; the Nuclear Energy Institute, in ML14001A002; G. Corrino, in ML14006A448; and the 

Arkansas Department of Health, in ML14015A083.

10 Commenters included Robert Vandenbosch, in ML13269A414; Ryan Brookhart, in meeting transcript 

ML13323B474; the South Carolina Governor’s Nuclear Advisory Council, in ML13329A938; Ohio State Construction 

Trades, in meeting transcript ML13340A572; John Greenwood, in meeting transcript ML13340A572; the Affiliated 

Construction Trades Foundation of Ohio, in meeting transcript ML13340A572; New York, Vermont, Connecticut, 

Massachusetts, and the Prairie Island Indian Community, in ML13365A345; Janet Kotra, in ML13353A729; David 

Schonberger, in ML13357A316; the Prairie Island Indian Community, in ML14014A319; the Nuclear Energy Institute, 

in ML14001A002; G. Corrino, in ML14006A448; and the Arkansas Department of Health, in ML14015A083. 
The Commissioners 5 

commenters noted that including a statement about safety would enhance openness and 

transparency, or would indicate that storage is, in fact, safe. Others indicated that a safety 

statement should be included because: such a statement would “give people that are opposed 

to industry basis to make opposition,” it appropriately addresses the issues raised in Minnesota 

v. NRC11 and New York v. NRC12, or safety determinations are more important to NRC 

decisions and to members of the public in spent fuel matters than environmental issues are. 

One commenter who expressed support for the policy statement indicated that the statement 

could appear in the Statements of Consideration rather than in the rule text. 

Commenters who expressed opposition to making a policy statement regarding safety of 

continued storage in the rule text provided several reasons, including: providing such a 

statement is unnecessary in the rule, the GEIS is unable to support such a statement, and it is 

not possible to project the future safety of spent fuel storage. 

One commenter neither supported nor opposed Issue 2, but asserted that technical issues 

identified as part of the NRC’s Long-Term Waste Confidence Update must be resolved before 

NRC issues the final GEIS. 

Issue 3: Whether the Discussion portion (Section III) of the Statements of Consideration 

should be streamlined by removing content that is repeated from the draft GEIS

Issue 3 involves the question whether the Statements of Consideration can be clarified by 

removing material that is repeated in the draft GEIS. Commenters13 who responded to Issue 3 

were split on this issue. Some commenters expressed support for streamlining the Discussion 

portion of the Statements of Consideration while others opposed such streamlining. 

Commenters who supported streamlining did so most commonly because it would improve 

clarity or reduce redundancy. Other commenters suggested that lengthy Federal Register

notices are burdensome to search, and that streamlining could remove anachronisms. 

Most commenters who opposed streamlining indicated either that the information in the 

Discussion section supports the rule, or it provides a plain-language explanation of matters in 

the rule. Other commenters who opposed streamlining stated that it would introduce changes 

upon which the public would not have an opportunity to comment. Additionally, some 

commenters indicated that the Statements of Consideration should address findings that the 

NRC has historically included as part of the Waste Confidence decision. Finally, one 

commenter stated that the Federal Register is more readily available and easier to search than 

the GEIS. 

 

11 602 F.2d 412 (D.C. Cir. 1979). 12 681 F.3d 471 (D.C. Cir. 2012). 13 Commenters included Robert Vandenbosch, in ML13269A414; Ryan Brookhart, in meeting transcript 

ML13323B474; the South Carolina Governor’s Nuclear Advisory Council, in ML13329A938; Nikohl Vandel, in 

meeting transcripts ML13339A946 and ML13345B014; David Schonberger, in meeting transcripts ML13340A572 and 

in ML13357A316; John Greenwood, in meeting transcript ML13340A572; the Affiliated Construction Trades 

Foundation of Ohio, in meeting transcript ML13340A572; New York, Vermont, Connecticut, Massachusetts, and the 

Prairie Island Indian Community, in ML13365A345; Janet Kotra, in ML13353A729; the Nye County Nuclear Waste 

Repository Project Office, in ML13354A007; the Nuclear Energy Institute, in ML14001A002; G. Corrino, in 

ML14006A448; and the Arkansas Department of Health, in ML14015A083. 
The Commissioners 6 

Issue 4: Whether the title of the rule should be changed in light of a GEIS being issued 

instead of a separate Waste Confidence Decision 

Commenters14 who responded to Issue 4 expressed near-unanimous support for changing the 

title of the rule.15 Commenters provided an array of reasons to support changing the rule name, 

including: the name is an anachronism, it provides no useful description of the rule’s purpose or 

intent, historical findings of confidence in the availability of a disposal site have proven incorrect, 

confidence in the ability to manage or dispose of waste does not now exist, the 2012 ruling from 

the Court of Appeals for the District of Columbia Circuit invalidated confidence as a basis for the 

rule, the term “waste confidence” is not meaningful without an explanation of how the term 

originated, and “confidence” requires transfer of all fuel to dry casks. One commenter who 

responded to this issue expressed opposition to revising the title. This commenter asserted that 

removing the term “waste confidence” would be short-sighted because the term ties the rule to 

the need to establish basic confidence in ultimate waste disposal. 

Many other commenters—who did not specifically comment on Issue 4—expressed views 

related to the use of the term “waste confidence.” Those commenters indicated that “waste 

confidence” is an “oxymoron,” the term does not describe the rule’s purpose, or it refers to 

confidence in a repository that the commenters indicated was misplaced based on experiences 

with Yucca Mountain or with other attempts to dispose of nuclear materials. 

Themes from Comments on Proposed Rule and Draft GEIS

Commenters most frequently raised concerns about perceived inadequacies in the draft GEIS 

and proposed rule. General themes from these comments include: 

• doubts or concerns about the feasibility of safe spent fuel storage 

• concerns about the NRC’s misplaced reliance on repository availability 

• concerns that the NRC unreasonably constrained the potential alternatives to Waste 

Confidence 

• inadequate consideration of accidents in the course of continued storage

• insufficient consideration of the costs of long-term spent-fuel storage 

• inadequate consideration of the potential environmental impacts from a loss of 

institutional controls or regulatory oversight 

 

14 Commenters included Richard Andrews, in ML13294A563, ML13360A317, and meeting transcript ML13282A605; 

Mike Kalas, in meeting transcript ML13330C033; Ellen Ginsburg, in meeting transcript ML13330B840; Karen 

Patterson, South Carolina Governor’s Nuclear Advisory Council, in ML13329A938; Nikohl Vandel, in meeting 

transcripts ML13339A946 and ML13345B014; Paul Padot, in meeting transcript ML13340A572; New York, Vermont, 

Connecticut, Massachusetts, and the Prairie Island Indian Community, in ML13365A345; Janet Kotra, in 

ML13353A729; David Schonberger, in ML13357A316; Areva, Inc., in ML14001A009; The Nuclear Energy Institute, in 

ML14001A002; G. Corrino, in ML14006A448; Bernard Bevill, Arkansas Department of Health, in ML14015A083; and 

Exelon Generation Company, LLC, in ML14008A173. 

15 Three commenters suggested that the NRC revise the names of the rule and GEIS to be “Storage of Spent Nuclear 

Fuel after Licensed Term of Operation” and “Generic Environmental Impact Statement for the Storage of Spent 

Nuclear Fuel after Licensed Term of Operation,” respectively. 
The Commissioners 7 

• inadequate consideration of measures to mitigate impacts from continued storage

• inadequate consideration of site-specific conditions that commenters claim undermine 

the NRC’s generic approach to Waste Confidence

• inadequate consideration of climate change 

• inadequate consideration of the potential for human-performance failures during 

continued storage 

• concerns about the validity of various analytical assumptions used in the draft GEIS (for 

example, the use of a dry-transfer system to move fuel into replacement casks—or the 

assumed 100-year replacement interval for dry casks and canisters, pads, and transfer 

systems—among other assumptions)

• improper consideration of issues with impacts that vary according to site-specific factors 

(e.g., impacts to historic and cultural resources range from small to large in the 

long-term and indefinite timeframes)

• inadequate consideration of—or inability to ensure—long-term financial capacity to 

maintain safe spent-fuel storage

• inadequate consideration of issues related to high-burnup spent-fuel management 

At this time, the staff is reviewing the comments and preparing responses and has not yet made 

a determination regarding which, if any, portions of the GEIS and rule will be revised. Some of 

the above-noted issues are related to other activities currently under Commission review. For 

example, many commenters requested that the NRC consider expedited transfer of spent fuel 

from pools to dry casks as part of Waste Confidence. In addition, the staff expects to provide an 

expanded discussion of some specific issues in the final rule package that will be provided for 

the Commission’s review. These may include, for example, potential loss of institutional 

controls and safety and environmental issues associated with high-burnup spent-fuel 

management. 

CONCLUSION:

The NRC succeeded in attracting a large number of diverse public comments on the Waste 

Confidence proposed rule and draft GEIS, including the four issues. The staff is evaluating 

these comments and will recommend responses in the package supporting the draft final GEIS 

and rule. 

 
The Commissioners 8 

COORDINATION:

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 /RA/ 

 Mark A. Satorius 

 Executive Director 

 for Operations
The Commissioners 8 

COORDINATION:

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 /RA/ 

 Mark A. Satorius 

 Executive Director 

 for Operations 

ADAMS Accession No.: ML14027A528 

OFFICE NMSS/WCD NMSS/WCD NMSS/WCD NMSS/WCD OGC 

NAME AStuyvenberg AImboden CSafford KMcConnell 

(CSafford for) 

LLondon 

(NLO) 

DATE 1/17/14 1/17/14 1/27/14 2/14/14 2/14/14 

OFFICE Tech Editor NMSS OEDO 

NAME CHsu CHaney MSatorius 

DATE 2/12/14 2/20/14 02/28/2014 

OFFICIAL RECORD COPY