[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Rules and Regulations]
[Pages 81032-81037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31624]



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Part VI





Nuclear Regulatory Commission





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10 CFR Part 51



Consideration of Environmental Impacts of Temporary Storage of Spent 
Fuel After Cessation of Reactor Operation; Waste Confidence Decision 
Update; Final Rules

Federal Register / Vol. 75 , No. 246 / Thursday, December 23, 2010 / 
Rules and Regulations

[[Page 81032]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[NRC-2008-0404]
RIN 3150-AI47


Consideration of Environmental Impacts of Temporary Storage of 
Spent Fuel After Cessation of Reactor Operation

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
revising its generic determination on the environmental impacts of 
storage of spent fuel at, or away from, reactor sites after the 
expiration of reactor operating licenses. The revisions reflect 
findings that the Commission has reached in an update and supplement to 
the 1990 Waste Confidence rulemaking proceeding published elsewhere in 
this issue of the Federal Register. The Commission now finds that, if 
necessary, spent fuel generated in any reactor can be stored safely and 
without significant environmental impacts for at least 60 years beyond 
the licensed life for operation (which may include the term of a 
revised or renewed license) of that reactor in a combination of storage 
in its spent fuel storage basin or at either onsite or offsite 
independent spent fuel storage installations (ISFSIs). It also finds 
reasonable assurance that sufficient mined geologic repository capacity 
will be available for disposal of spent fuel when necessary.

DATES: The rule is effective on January 24, 2011.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room O-
1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#6a1a0e1844180f19051f18090f2a041809440d051c"><span class="__cf_email__" data-cfemail="176773653965726478626574725779657439707861">[email protected]</span></a>.
    Federal Rulemaking Web site: Public comments and supporting 
materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2008-0404.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, e-mail: <a href="/cdn-cgi/l/email-protection#ed99849e8283c38e8c809d8f888181ad839f8ec38a829b"><span class="__cf_email__" data-cfemail="a3d7cad0cccd8dc0c2ced3c1c6cfcfe3cdd1c08dc4ccd5">[email protected]</span></a>; Lisa London, 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone: 301-415-3233, e-mail: 
<a href="/cdn-cgi/l/email-protection#a8c4c1dbc986c4c7c6ccc7c6e8c6dacb86cfc7de"><span class="__cf_email__" data-cfemail="c7abaeb4a6e9aba8a9a3a8a987a9b5a4e9a0a8b1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    In 1990, the Commission concluded a generic rulemaking proceeding 
to reassess its degree of confidence that radioactive wastes produced 
by nuclear power plants can be safely disposed of, to determine when 
this disposal or offsite storage will be available, and to determine 
whether radioactive wastes can be safely stored onsite past the 
expiration of existing facility licenses until offsite disposal or 
storage is available. This proceeding reviewed the Commission's 1984 
findings on these issues, which were developed through a generic 
rulemaking proceeding that became known as the ``Waste Confidence 
Proceeding.'' The 1990 proceeding resulted in the following five 
reaffirmed or revised Waste Confidence findings:
    1. The Commission finds reasonable assurance that safe disposal of 
high-level radioactive waste (HLW) and spent nuclear fuel (SNF) in a 
mined geologic repository is technically feasible;
    2. The Commission finds reasonable assurance that at least one 
mined geologic repository will be available within the first quarter of 
the twenty-first century, and that sufficient repository capacity will 
be available within 30 years beyond the licensed life for operation 
(which may include the term of a revised or renewed license) of any 
reactor to dispose of the commercial HLW and SNF originating in such 
reactor and generated up to that time;
    3. The Commission finds reasonable assurance that HLW and SNF will 
be managed in a safe manner until sufficient repository capacity is 
available to assure the safe disposal of all HLW and SNF;
    4. The Commission finds reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 30 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor at its spent fuel storage basin, or at 
either onsite or offsite ISFSIs; and
    5. The Commission finds reasonable assurance that safe independent 
onsite spent fuel storage or offsite spent fuel storage will be made 
available if such storage capacity is needed. (55 FR 38474; September 
18, 1990).
    These five findings formed the basis of the Commission's revised 
generic determination of no significant environmental impact from 
temporary storage of SNF after cessation of reactor operation, which 
was codified at 10 CFR 51.23(a):

    The Commission has made a generic determination that, if 
necessary, spent fuel generated in any reactor can be stored safely 
and without significant environmental impact for at least 30 years 
beyond the licensed life for operation (which may include the term 
of a revised or renewed license) of that reactor at its spent fuel 
storage basin or at either onsite or offsite independent spent fuel 
storage installations. Further, the Commission believes there is 
reasonable assurance that at least one mined geologic repository 
will be available within the first quarter of the twenty-first 
century, and sufficient repository capacity will be available within 
30 years beyond the licensed life for operation of any reactor to 
dispose of the commercial [HLW] and [SNF] originating in such 
reactor and generated up to that time. (55 FR 38474; September 18, 
1990).

    Thus, the environmental impacts of spent fuel storage for the 
period following the term of a reactor operating license or amendment 
or reactor combined license or amendment or initial independent spent 
fuel storage installation license or amendment do not need to be 
considered in proceedings on applications for these licenses or 
amendments. See 10 CFR 51.23(b).
    In 1999, the Commission reviewed its Waste Confidence findings and 
concluded that experience and developments after 1990 had confirmed the 
findings and made a comprehensive reevaluation of the findings 
unnecessary. It also stated that it would consider undertaking a 
reevaluation when the pending repository development and regulatory 
activities had run their course or if significant and pertinent 
unexpected events occurred that raise substantial doubt about the 
continuing validity of the Waste Confidence findings (See 64 FR 68005; 
December 6, 1999).

The Proposed Rule

    In 2008, the Commission decided that the generic resolution of 
appropriate

[[Page 81033]]

issues that might be raised in licensing proceedings on anticipated 
combined operating license (COL) applications for new reactors would 
enhance the efficiency of the COL proceedings; waste confidence was one 
of these issues. Prior to NRC's original Waste Confidence proceeding, 
the Commission stated that, as a matter of policy, it ``would not 
continue to license reactors if it did not have reasonable confidence 
that the wastes can and will in due course be disposed of safely'' (42 
FR 34391, 34393; July 5, 1977). It has been 20 years since the last 
formal review of the Waste Confidence findings, so the Commission is 
revisiting the findings to address their continuing validity, given the 
passage of time since the last update to the Waste Confidence Decision, 
and given the upcoming COL proceedings. The Commission is now updating 
and revising the 1990 Waste Confidence Decision and Rule.
    On October 9, 2008 (73 FR 59551), the Commission published the 
proposed update and revision of two of the Waste Confidence findings, 
along with a request for public comment, in the Federal Register. In 
the same issue of the Federal Register, the Commission proposed a 
conforming amendment of its generic determination of no significant 
environmental impact from the temporary storage of spent fuel after 
cessation of reactor operations codified at 10 CFR 51.23(a) (73 FR 
59547; October 9, 2008). The Commission proposed to modify its generic 
determination to state that, if necessary, spent fuel generated in any 
reactor can be stored safely and without significant environmental 
impacts beyond the licensed life for operation (which may include the 
term of a revised or renewed license) of that reactor at its spent fuel 
storage basin or at either onsite or offsite ISFSIs until a disposal 
facility can reasonably be expected to be available.

The Final Rule

    After evaluating the public comments on the proposed rule and 
update to the Waste Confidence Decision, the Commission is now 
publishing its final rule amending 10 CFR 51.23(a), along with the 
final update and revision to the Waste Confidence Decision (published 
separately in this issue of the Federal Register). The Commission is 
revising two of its findings:
    Finding 2: The Commission finds reasonable assurance that 
sufficient mined geologic repository capacity will be available to 
dispose of the commercial high-level radioactive waste and spent fuel 
generated in any reactor when necessary.
    Finding 4: The Commission finds reasonable assurance that, if 
necessary, spent fuel generated in any reactor can be stored safely and 
without significant environmental impacts for at least 60 years beyond 
the licensed life for operation (which may include the term of a 
revised or renewed license) of that reactor in a combination of storage 
in its spent fuel storage basin and either onsite or offsite 
independent spent fuel storage installations.
    The Commission, in response to public comments, and to achieve 
greater consistency with Finding 4, is also modifying the rule to 
include a time frame for the safe storage of SNF:
    The Commission has made a generic determination that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 60 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor in a combination of storage in its 
spent fuel storage basin and at either onsite or offsite independent 
spent fuel storage installations. Further, the Commission believes 
there is reasonable assurance that sufficient mined geologic repository 
capacity will be available to dispose of the commercial high-level 
radioactive waste and spent fuel generated in any reactor when 
necessary.

Public Comments

    The NRC received 158 comment letters, including a late-supplemental 
comment from the Attorney General of New York, as well as two form 
letters sent by 1,990 and 941 commenters, respectively. Many of the 
comment letters contained multiple comments on the proposed rule, the 
proposed revisions to the Waste Confidence findings, or both. All 
comments received on both notices have been considered together and are 
addressed in the final update to the Waste Confidence Decision. The 
main issues raised by the comments are briefly discussed below.
    Many commenters argued that NRC has not complied with the National 
Environmental Policy Act (NEPA) because they believe that the revisions 
to the findings and amended rule constitute ``generic licensing 
decisions'' and need to be supported by a Generic Environmental Impact 
Statement (GEIS) that addresses all aspects of the nuclear fuel cycle. 
But as the Commission discusses in its comment responses, neither the 
Waste Confidence Rule nor the Decision allow for the issuance of a 
license; applicants for an NRC license must comply with the relevant 
NRC regulations before they can receive a license. And the Waste 
Confidence Decision and Rule satisfy a portion of the NRC's NEPA 
obligations--those associated with the environmental impacts after the 
end of license life. In this rulemaking, the Waste Confidence Decision 
is the Environmental Assessment--the NRC's NEPA analysis--that provides 
the basis for the generic determination of no significant environmental 
impacts reflected in the rule (10 CFR 51.23).
    The Commission is amending its generic determination of no 
significant environmental impact from the temporary storage of spent 
fuel after cessation of reactor operation contained in 10 CFR 51.23(a) 
to conform it to the Commission's revised Finding 4 of the Waste 
Confidence Decision. Finding 4 is revised to provide reasonable 
assurance that spent fuel can be stored safely and without significant 
environmental impacts for at least 60 years beyond the licensed life 
for operation of a reactor, rather than for at least 30 years as in the 
present Finding 4. The Commission is also revising the final rule to 
remove the time frame from the second sentence of 10 CFR 51.23(a); 
instead the Commission has incorporated the language adopted in Finding 
2: That sufficient repository capacity will be available to dispose of 
spent nuclear fuel and high-level waste when necessary.
    The revised generic determination is not a generic licensing 
decision. It does not authorize the operation of a nuclear power plant 
(NPP), the renewal of a NPP license, or the production or storage of 
spent fuel by a NPP. Licensing proceedings for any of these actions are 
supported by both specific and generic environmental impact statements 
(EISs) or environmental assessments (EAs) that consider the potential 
environmental impacts of storage of spent fuel during the term of the 
license. Because of the generic determination in Sec.  51.23(a) the 
potential environmental impact of storage of spent fuel for a 60-year 
period (rather than a 30-year period) after the end of licensed 
operations or whether ultimate disposal will be available, is not 
considered in individual NPP licensing reviews. The EA supporting this 
30-year extension of the generic determination and the finding of 
reasonable assurance of a safe, timely disposal facility is the Waste 
Confidence Decision Update, which supports the Commission's Finding of 
No Significant Impact (FONSI) and concurrent decision to not conduct an 
EIS.
    A number of commenters asserted that NRC, in preparing an EA and 
FONSI, has not complied with the

[[Page 81034]]

procedural requirements for a FONSI, which include the preparation of 
an EA and the identification of all the documents that the FONSI is 
based on. As stated above, the update and revision of the Waste 
Confidence Decision is the EA supporting the amendment of the generic 
determination in 10 CFR 51.23(a). All of the documents relied upon in 
preparing the Update and Final Rule are referenced. Two of the 
referenced documents are not publicly available; these are reports 
concerning the safety and security of spent fuel pool storage issued by 
Sandia National Laboratories (SNL) and the National Academy of Sciences 
(NAS), which are either Classified, Safeguards Information (SGI), or 
Official Use Only--Security Related Information. Although these 
documents cannot be released to the public, redacted or publicly 
available summaries are available. A redacted version of the SNL study 
can be found in ADAMS (ADAMS Accession Number ML062290362) and the 
unclassified summary of the NAS report can be purchased or downloaded 
for free by accessing the NAS Web site at: http://www.nap.edu/catalog.php?record_id=11263. No other non-public documents are 
referenced in the Waste Confidence Update.
    A number of commenters argued that NRC's revisions of its Waste 
Confidence findings and temporary storage rule do not comply with the 
holding of the U.S. Court of Appeals for the Ninth Circuit in San Luis 
Obispo Mothers for Peace v. NRC, 449 F. 3d 1016 (2006), cert. denied, 
127 S. Ct. 1124 (2007), that NEPA requires an examination of the 
environmental impacts that would result from an act of terrorism 
against an ISFSI. These commenters believe that an attack is reasonably 
foreseeable and therefore subject to a NEPA review. Despite the outcome 
of Mothers for Peace, the Commission has adhered to its traditional 
position (outside of the Ninth Circuit) that the environmental effects 
of a terrorist attack do not need to be considered in its NEPA 
analyses. See Amergen Energy Co., LLC (Oyster Creek Nuclear Generating 
Station), CLI-07-08, 65 NRC 124 (2007). And in 2009, the U.S. Court of 
Appeals for the Third Circuit upheld the Commission's position that 
terrorist attacks are too far removed from the natural or expected 
consequences of agency action to require an environmental impact 
analysis. New Jersey Dept. of Environmental Protection v. U.S. Nuclear 
Regulatory Com'n, 561 F.3d 132 (2009). Even so, the EA for this update 
and rulemaking includes a discussion of terrorism that NRC believes 
satisfies the Ninth Circuit's holding in Mothers for Peace.
    Some commenters believe that this revision of the Waste Confidence 
findings violates the Atomic Energy Act of 1954 (AEA) because the AEA 
precludes NRC from licensing any new NPP or renewing the license of any 
existing NPP if it would be ``inimical * * * to the health and safety 
of the public.'' 42 U.S.C. 2133(d). As explained above, NRC's revised 
Waste Confidence findings and revised generic determination are not 
licensing decisions, but merely generically resolve certain discrete 
issues in licensing proceedings. They are not determinations made as 
part of the licensing proceedings for NPPs or ISFSIs or the renewal of 
those licenses. They do not authorize the storage of SNF in spent fuel 
pools or ISFSIs. The revised findings and generic determination include 
conclusions of the Commission's environmental analyses, under NEPA, of 
the foreseeable environmental impacts stemming from the storage of 
spent fuel after the end of reactor operation.
    Other comments questioned NRC's basis for reaffirming Finding 1 and 
Finding 3 and for the revisions made in Findings 2 and 4. Those 
comments are fully addressed in the final update as well as other, more 
minor, comments. The Commission, below, restates its reasons for 
revising Findings 2 and 4.

Specific Question for Public Comment

    The Waste Confidence Decision Update considers the many comments 
received on the specific question for public comment in the 
Commission's proposals--whether Finding 2 should contain a target date, 
as proposed, or take a more general approach that a repository will be 
available when needed (the alternative approach). The State of Nevada, 
Clark and Eureka Counties in Nevada, and the Nuclear Energy Institute 
favor the alternative approach. They generally believe that a time 
frame involves too much speculation about future events and that 
licensed storage of SNF will be safe no matter what the time needed. 
Several states; State organizations; Nye County, Nevada; environmental 
groups; and other commenters want the Commission to retain a time 
frame. In general, they believe that, in the absence of a time frame, 
the Commission's confidence in the eventual disposal of spent fuel 
would rest on pure speculation; that it would ignore intergenerational 
ethical concerns of this generation reaping the benefits of nuclear 
energy while passing off the problem of waste disposal to future 
generations; and that a time frame is necessary to provide an incentive 
for the Federal Government to meet its responsibilities for the 
disposal of spent fuel and HLW.
    The Commission has confidence that spent fuel can be safely stored 
without significant environmental impact for long periods of time for 
all the reasons described in its discussion of Findings 3, 4, and 5 in 
the update to the Waste Confidence Decision. Further, as discussed in 
Finding 2, the Commission has confidence that sufficient mined geologic 
disposal capacity will be available when necessary. However, there are 
issues beyond the Commission's control, including the political and 
societal challenges of siting a HLW repository, that make it premature 
to predict a date when a repository will become available. The 
Commission has therefore decided not to adopt a specific time frame in 
Finding 2 or its final rule. Instead, the Commission is expressing its 
reasonable assurance that a repository will be available ``when 
necessary.''
    The Commission believes that this standard accurately reflects its 
position, as discussed in the analysis supporting Finding 2, that a 
repository can be constructed within 25-35 years of a Federal decision 
to do so. Further, the Commission continues to have confidence, as 
expressed in Findings 3 and 5, that safe and sufficient onsite or 
offsite storage capacity is available and will be available until a 
repository becomes available for disposal. In addition, revised Finding 
4 supports at least 60 years of safe and environmentally sound onsite 
or offsite storage beyond the end of the licensed life for operation of 
any nuclear power reactor. It necessarily follows from these findings 
that the Commission has reasonable assurance that sufficient repository 
capacity will be available before there are safety or environmental 
issues associated with the SNF and HLW that would require the material 
to be removed from storage and placed in a disposal facility.
    In short, the Commission can express its reasonable assurance that 
disposal capacity will become available when necessary and that there 
will be sufficient safe and environmentally sound storage available for 
all of the SNF until this disposal capacity becomes available.

Safe Storage of Spent Fuel

    This update reflects the Commission's increased confidence in the 
safety and security of SNF storage, both in spent fuel pools and in 
ISFSIs. In 1990, the Commission determined that experience with spent 
fuel pools continued to

[[Page 81035]]

confirm that pool storage is a benign environment that does not lead to 
significant degradation of spent fuel integrity; that the pools in 
which the assemblies are stored will remain safe for extended periods; 
and that degradation mechanisms are well understood and allow time for 
appropriate remedial action. Similarly, by 1990, the Commission had 
gained experience with dry storage systems that confirmed the 
Commission's 1984 conclusions that material degradation processes in 
dry storage are well understood and that dry storage systems are 
simple, passive, and easily maintained. In fact, one of the bases for 
the Commission's confidence in the safety of dry storage was its August 
19, 1988 (53 FR 31651) amendment to 10 CFR part 72 that addressed spent 
fuel storage in a monitored retrievable storage installation (MRS) for 
a license term of 40 years, with the possibility of renewal. In the EA 
for the MRS rule, the Commission found confidence in the safety and 
environmental insignificance of dry storage for 70 years following a 
period of 70 years of storage in a storage pool, for a total of 140 
years of storage. See NUREG-1092: Environmental Assessment for 10 CFR 
Part 72, ``Licensing Requirements for the Independent Storage of Spent 
Fuel and High-Level Radioactive Waste,'' August 1984. Nothing has 
occurred in the intervening years to call into question the 
Commission's confidence in the long-term safety of both wet and dry 
storage of SNF. Subsequently, the NRC has approved a 20-year license 
renewal for a wet ISFSI and 40-year license renewals for three dry 
ISFSIs.
    Since 1990, the Commission's primary focus has been on potential 
accidents. And since September 11, 2001, this focus has expanded to 
include security events that might lead to a radioactive release from 
stored SNF. Multiple studies of the safety and security of spent fuel 
storage, including the potential for the draining of a spent fuel pool 
leading to a zirconium fire and for an airplane crashing into an ISFSI, 
have been undertaken by NRC and by other entities, such as the NAS. 
These studies and the Commission's regulatory actions have reinforced 
NRC's view that spent fuel storage systems are safe, secure, and 
without significant environmental impacts. See, e.g., Letter to Senator 
Pete V. Domenici from Nils J. Diaz, March 14, 2005, enclosing NRC 
Report to Congress on the [NAS] Study on the Safety and Security of 
Commercial [SNF] Storage, March 2005; (73 FR 46204; August 8, 2008); In 
the Matter of Private Fuel Storage, L.L.C., CLI-05-19; 62 NRC 403 
(2005).
    In sum, the characteristics of spent fuel storage facilities, the 
studies of the safety and security of spent fuel storage (conducted 
both before and after the 1990 update to the Decision and Rule), NRC's 
extensive experience in regulating spent fuel storage and ISFSIs and in 
certifying dry cask storage systems, NRC's actions in approving 40-year 
license renewals for three ISFSIs (meaning that the safety of dry 
storage after licensed operation at these ISFSIs has been approved for 
at least a 60-year period), and an additional 20 years of experience 
with safely storing spent fuel support the Commission's confidence in 
the long-term safety and security of spent fuel storage.

The Availability of a Repository

    On June 3, 2008, the Department of Energy (DOE) submitted the Yucca 
Mountain (YM) application to NRC and on September 8, 2008, NRC staff 
notified DOE that it found the application acceptable for docketing (73 
FR 53284; September 15, 2008). Although the licensing proceeding for 
the YM repository is still pending, the current Administration and DOE 
leadership have made it clear that they oppose the construction of the 
YM repository. The President's 2010 budget proposal stated that the 
``Administration proposes to eliminate the Yucca Mountain repository 
program.'' Terminations, Reductions, and Savings: Budget of the U.S. 
Government, Fiscal Year 2010, Page 68 available at http://www.gpoaccess.gov/usbudget/fy10/pdf/trs.pdf (last visited on November 
9, 2010).
    On March 3, 2010, DOE filed a Notice of Withdrawal with the Atomic 
Safety and Licensing Board (Board) that is presiding over the YM 
licensing proceeding (ADAMS Accession Number ML100621397). On June 29, 
2010, the Board denied DOE's motion; and on June 30, 2010, the 
Secretary of the Commission invited the parties to file briefs 
regarding whether the Commission should review, reverse, or uphold the 
Board's decision (ADAMS Accession Numbers ML101800299 and ML101810432). 
The Commission has not yet issued its decision.
    Recent events, coupled with its ongoing analysis of the target date 
approach used in Finding 2, have caused the Commission to reconsider 
its position regarding the use of a target date in Finding 2. As 
discussed above, the Commission continues to have confidence that a 
repository can be constructed in 25-35 years, but it is uncertain 
whether the social and political consensus necessary for a successful 
repository program will be reached in the near future. Therefore, the 
Commission has adopted the approach proposed in the Additional Question 
for Public Comment, and has removed the target date from Finding 2 (73 
FR 59561; October 9, 2008).
    This modification to Finding 2 does not mean that the Commission is 
endorsing indefinite storage of HLW and SNF; Finding 4 has not been 
changed, and only considers ``at least 60 years'' of storage beyond the 
licensed life for operation. If the expiration of this time nears 
without the availability of a repository, the Commission will revisit 
the Waste Confidence Decision and Rule. The Commission's current Waste 
Confidence Decision and Rule reflect the NRC's best information and 
judgment. But the longer-term rulemaking and study of storage for more 
than 120 years that the Commission directed the staff to start in its 
Staff Requirements Memorandum (SRM) (SRM-SECY-09-0090, M100915; 
September 15, 2010) will result in the Commission having more 
information in a timely fashion should additional adjustments to the 
Waste Confidence Decision and Rule prove necessary.
    The Commission remains confident that disposal of SNF and HLW in a 
geologic repository is technically feasible and that DOE should be able 
to locate a suitable site for repository development in no more time 
than was needed for the YM repository program (about 20 years). Both 
domestic and international developments have made it clear that 
confidence in the technical feasibility of a repository alone is not 
sufficient to bring about the broader societal and political acceptance 
of a repository. Achieving this broader support for construction of a 
repository at a particular site requires a broad public outreach 
program. In some countries community acceptance has taken 25-35 years.
    For example, if a new repository program starts in 2025, it could 
be reasonable to expect that a repository would become available by 
2050-2060. But the Commission cannot express reasonable assurance in 
2025 as the start date for a new program because it is not possible to 
predict when a political and social consensus will be reached. The 
Commission believes that there is no specific date by which a 
repository must be available for safety or environmental reasons; the 
Commission did not define a period when a repository will be needed for 
safety or environmental reasons in 1990 and it is not doing so now--it 
is only explaining its view of when a repository could reasonably be

[[Page 81036]]

expected to be available after a Federal decision to construct a 
repository.

Availability of Repository Capacity for Disposal of Spent Fuel From All 
Reactors

    The Commission's generic determination of no significant 
environmental impact from the temporary storage of spent fuel after 
cessation of reactor operation has included a prediction that 
sufficient repository capacity for a reactor's fuel will be available 
within 30 years beyond the licensed life for operation of that reactor. 
This prediction was not based on safety or environmental 
considerations; it was based on finding that 30 years beyond the 
licensed life for operation of even the earliest reactors would not 
occur until after 2025. Thus, the Commission's confidence that a 
repository would be available by 2025 still meant that no reactor would 
need to store its SNF for more than 30 years beyond its licensed life 
for operation. If it is assumed that a repository will not be available 
until well after 2025, then this prediction can no longer be maintained 
(the analysis supporting Finding 2 indicates that if the political and 
societal roadblocks were resolved today, a repository would not be 
available until at least 2035-2045). According to NRC's ``High-Value 
Datasets,'' there are 14 reactor operating licenses that will expire 
between 2012 and 2020 and an additional 36 licenses that will expire 
between 2021 and 2030. NRC High-Value Datasets, http://www.nrc.gov/public-involve/open.html#datasets (last visited November 9, 2010).
    For licenses that are not renewed, some spent fuel will need to be 
stored for more than 30 years beyond the licensed life for operation. 
There are 23 reactors that were formerly licensed to operate by the NRC 
or the Atomic Energy Commission (the NRC's predecessor agency) and have 
been permanently shut down. Id. For most of these plants, 30 years 
beyond the licensed life for operation will fall in the 2030s and 
2040s. Thus, for virtually all of these plants, spent fuel will have to 
be stored beyond 30 years from the expiration of the license if a 
repository is not available until well after 2025. Further, the 
Commission has concerns about the use of the target date approach used 
in proposed Finding 2 and the proposed rule and has decided not to 
adopt this approach. A target date requires the Commission to have 
reasonable assurance of when a repository will become available; but, 
because the Commission cannot predict when this societal and political 
acceptance will occur, it is unable to express reasonable assurance in 
a specific target date for the availability of a repository. The 
Commission does, however, believe that a repository can be constructed 
within 25-35 years of a Federal decision to construct a repository.
    Given the ongoing activities of the Blue-Ribbon Commission on 
America's Nuclear Future, events in other countries, the viability of 
safe long-term storage for at least 60 years (and perhaps longer) after 
reactor licenses expire, and the Federal Government's statutory 
obligation to develop a HLW repository, the Commission has confidence 
that a repository will be made available well before any safety or 
environmental concerns arise from the extended storage of spent nuclear 
fuel and high-level waste. In other words, a repository will be 
available when necessary. For these reasons, the Commission is amending 
its generic determination that sufficient repository capacity will be 
available ``within 30 years of the expiration of the licensed life for 
operation of all reactors'' to reflect its reasonable assurance that 
sufficient repository capacity will be available when necessary.
    As stated above, this is not a safety finding, and the amendment is 
made solely to be consistent with an assumption that a repository will 
not be available until 25-35 years after the resolution of the 
political and societal issues associated with a repository. As 
explained in the update to the Waste Confidence Decision, the 
Commission's confidence that a repository will be available when 
necessary rests on a number of factors, including (for example) the 
options being considered by the Blue-Ribbon Commission, the time it 
likely will take to site, license, and build a repository, the Federal 
Government's commitment, by law (the Nuclear Waste Policy Act) to 
dispose of spent fuel, and developments in other countries.

Summary of Amendments by Section

    The Commission is adopting the proposed revision, with some 
changes. The rule is being revised to more closely track the language 
in final Findings 2 and 4; the basis for the rule is identical to the 
basis for the findings, no matter how the rule itself is phrased. But 
to avoid confusion and respond to the issues raised in the comments, 
the Commission has reconsidered the phrasing of the proposed rule, and 
the generic determination in the final rule now is made identical to 
Finding 4.
    Section 51.23(a) is also revised to reinsert a version of the 
second sentence in the present rule that was excluded from the proposed 
rule. This statement was added to make clear that Finding 4 does not 
contemplate indefinite storage and to underscore that the 60-year 
storage period is related to the Commission's expectation that 
sufficient repository capacity will be available when necessary. 
Accordingly, the added sentence provides that there is ``reasonable 
assurance that sufficient mined geologic repository capacity will be 
available to dispose of the commercial high-level radioactive waste and 
spent fuel generated in any reactor when necessary.''
    Section 51.23(a) is also revised to provide the Commission's 
generic determination that, if necessary, spent fuel generated in any 
reactor can be stored safely and without significant environmental 
impacts for at least 60 years beyond the licensed life for operation 
(which may include the term of a revised or renewed license) of that 
reactor in a combination of storage in its spent fuel storage basin or 
at either onsite or offsite ISFSIs. The time period of ``at least 30 
years'' beyond the licensed life for operation is deleted. This 
amendment also deletes the predictions that at least one mined geologic 
repository will be available within the first quarter of the twenty-
first century and that sufficient repository capacity will be available 
within 30 years beyond the licensed life for operation of any reactor 
to dispose of the commercial HLW and SNF originating in such reactor 
and generated up to that time. The amendment adds the expectation that 
sufficient mined geologic repository capacity will be available to 
dispose of the commercial HLW and spent fuel originating in any reactor 
when necessary.

Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113) requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. In this final rule, NRC is modifying its generic 
determination on the consideration of environmental impacts of 
temporary storage of spent fuel after cessation of reactor operations 
to provide that, if necessary, spent fuel generated in any reactor can 
be stored safely and without significant environmental impacts for at 
least 60 years beyond the licensed life for operation (which may 
include the term of a revised or renewed license) of that

[[Page 81037]]

reactor in a combination of storage in its spent fuel storage basin and 
at either onsite or offsite ISFSIs. This action does not constitute the 
establishment of a standard that establishes generally applicable 
requirements.

Finding of No Significant Environmental Impact: Availability

    This final rule amends the generic determination in 10 CFR 51.23 to 
state that, if necessary, spent fuel generated in any reactor can be 
stored safely and without significant environmental impacts for at 
least 60 years beyond the licensed life for operation (which may 
include the term of a revised or renewed license) of that reactor in a 
combination of storage in its spent fuel storage basin and at either 
onsite or offsite ISFSIs. The environmental assessment on which the 
revised generic determination is based is the revision and update to 
the Waste Confidence findings published elsewhere in this Federal 
Register. Based on this analysis, the Commission finds that this final 
rulemaking has no significant environmental impacts. The final 
revisions and update to the Waste Confidence findings are available as 
specified in the ADDRESSES section of this document.

Paperwork Reduction Act Statement

    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget (OMB) approval number 3150-0021.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

Regulatory Analysis

    A regulatory analysis has not been prepared for this regulation 
because this regulation does not establish any requirements that would 
place a burden on licensees.

Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the 
Commission certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. This final 
rule describes a revised basis for continuing in effect the current 
provisions of 10 CFR 51.23(b), which provides that no discussion of any 
environmental impact of spent fuel storage in reactor facility storage 
pools or ISFSIs for the period following the term of the reactor 
operating license or amendment or initial ISFSI license or amendment 
for which application is made is required in any environmental report, 
environmental impact statement, environmental assessment, or other 
analysis prepared in connection with certain actions. This rule affects 
only the licensing and operation of nuclear power plants or ISFSIs. 
Entities seeking or holding Commission licenses for these facilities do 
not fall within the scope of the definition of ``small entities'' set 
forth in the Regulatory Flexibility Act or the size standards 
established by the NRC at 10 CFR 2.810.

Backfit Analysis

    The NRC has determined that the backfit rule (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) does not apply to this final rule because this 
amendment does not involve any provisions that would impose backfits as 
defined in the backfit rule. Therefore, a backfit analysis is not 
required.

Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs of OMB.

List of Subjects in 10 CFR Part 51

    Administrative practice and procedure, Environmental impact 
statement, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements.

0
For the reasons set out in the preamble and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the 
following amendment to 10 CFR part 51.

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106 
Stat. 2951, 2952, 2953 (42 U.S.C. 2201, 2297(f)); secs. 201, as 
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A 
also issued under National Environmental Policy Act of 1969, secs. 
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 
4335), and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; and sec. 
193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 
51.20, 51.30, 51.60, 41.80, and 51.97 also issued under secs. 135, 
141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-
203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section 
51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 
Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act 
of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). Sections 51.43, 
51.67, and 51.109 also under Nuclear Waste Policy Act of 1982, sec. 
114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134 (f)).


0
2. In Sec.  51.23, paragraph (a) is revised to read as follows:


Sec.  51.23  Temporary storage of spent fuel after cessation of reactor 
operation--generic determination of no significant environmental 
impact.

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

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

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-31624 Filed 12-22-10; 8:45 am]
BILLING CODE 7590-01-P


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