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

■ 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 

■ 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)). 

■ 2. In § 51.23, paragraph (a) is revised 

to read as follows: 

§ 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 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 51 

[NRC–2008–0482] 

Waste Confidence Decision Update 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Update and final revision of 

Waste Confidence Decision. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or Commission) is 

updating its Waste Confidence Decision 

of 1984 and, in a parallel rulemaking 

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81038 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

1The NRDC petition asserted that the Atomic 

Energy Act of 1954 (AEA). Public Law 83–703, 68 

Stat. 919 (1954), required NRC to make a finding, 

before issuing an operating license for a reactor, that 

permanent disposal of HLW generated by that 

reactor can be accomplished safely. The 

Commission found that the AEA did not require 

this safety finding to be made in the context of 

reactor licensing, but rather in the context of the 

licensing of a geologic disposal facility. 

proceeding, revising its generic 

determinations in the NRC’s regulations. 

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 O1 

F21, 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 

pdr.resource@nrc.gov. 

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–2008–0482. 

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: 

tison.campbell@nrc.gov; Lisa London, 

Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, telephone: 

301–415–3233, e-mail: 

lisa.london@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 18, 1990 (55 FR 38474), 

the NRC issued a decision reaffirming 

and revising, in part, the five Waste 

Confidence Findings reached in its 1984 

Waste Confidence Decision. The 1984 

Decision and the 1990 update to the 

Decision were products of rulemaking 

proceedings designed to assess the 

degree of assurance that radioactive 

wastes generated by nuclear power 

plants can be safely disposed of, to 

determine when disposal or offsite 

storage would 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. In 2008, the Commission 

decided to undertake a review of its 

Waste Confidence Decision and Rule as 

part of an effort to enhance the 

efficiency of combined license 

proceedings for applications for nuclear 

power plant (NPP) licensees anticipated 

in the near future by ensuring that the 

findings are up to date. 

The Commission has considered 

developments since 1990 and has 

reviewed its five prior findings and 

supporting environmental analysis. As a 

result of this review, the Commission is 

revising the second and fourth findings 

in the Waste Confidence Decision as 

follows: 

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 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 reaffirms the three 

remaining findings. Each finding and 

the reasons for revising or reaffirming 

the finding are discussed below. In 

keeping with revised Findings 2 and 4, 

the Commission is concurrently 

publishing in this issue of the Federal 

Register conforming amendments to 10 

CFR 51.23(a), which provides a generic 

determination of the environmental 

impacts of storage of spent fuel at, or 

away from, reactor sites after the 

expiration of reactor operating licenses, 

and expresses reasonable assurance that 

sufficient geologic disposal capacity 

will be available when necessary. 

In October 1979, the NRC initiated a 

rulemaking proceeding, known as the 

Waste Confidence proceeding, to assess 

its degree of assurance that radioactive 

wastes produced by NPPs ‘‘can be safely 

disposed of, to determine when such 

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’’ (44 FR 61372, 

61373; October 25, 1979). The 

Commission’s action responded to a 

remand from the U.S. Court of Appeals 

for the District of Columbia Circuit in 

State of Minnesota v. NRC, 602 F.2d 412 

(DC Cir.1979). That case questioned 

whether an offsite storage or disposal 

solution would be available for the 

spent nuclear fuel (SNF) produced at 

the Vermont Yankee and Prairie Island 

NPPs at the expiration of the licenses for 

those facilities in 2007–2009 or, if not, 

whether the SNF could be stored at 

those reactor sites until an offsite 

solution was available. 

The Waste Confidence proceeding 

also stemmed from the Commission’s 

statement, in denying a petition for 

rulemaking filed by the Natural 

Resources Defense Council (NRDC), that 

it intended to periodically reassess its 

finding of reasonable assurance that 

methods of safe permanent disposal of 

high-level radioactive waste (HLW) 

would be available when they were 

needed. Further, 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), pet. for rev. dismissed sub 

nom., NRDC v. NRC, 582 F.2d 166 (2d 

Cir. 1978)).1

The Waste Confidence proceeding 

resulted in the following five Waste 

Confidence Findings, which the 

Commission issued on August 31, 1984: 

(1) The Commission finds reasonable 

assurance that safe disposal of HLW and SNF 

in a mined geologic repository is technically 

feasible; 

(2) The Commission finds reasonable 

assurance that one or more mined geologic 

repositories for commercial HLW and SNF 

will be available by the years 2007–2009 and 

that sufficient repository capacity will be 

available within 30 years beyond the 

expiration of any reactor operating license to 

dispose of existing 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 

expiration of that reactor’s operating license 

at that reactor’s spent fuel storage basin, or 

at either onsite or offsite independent spent 

fuel storage installations (ISFSIs); 

(5) The Commission finds reasonable 

assurance that safe independent onsite or 

offsite spent fuel storage will be made 

available if such storage capacity is needed 

(49 FR 34658). 

Based on these findings, the 

Commission promulgated 10 CFR 

51.23(a) to provide a generic 

determination that for at least 30 years 

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81039 

2ADAMS Accession Numbers ML083540096, 

ML083540230, ML083550015, ML083570102, 

ML083570371, ML083570416, ML083570731, 

ML083570732, ML083570741, ML083570761, 

ML083570773, ML083570775, ML083570779, 

ML083570788, ML083570789, ML083590091, 

ML090050465, ML083540836. 

beyond the expiration of reactor 

operating licenses, no significant 

environmental impacts will result from 

the storage of spent fuel in reactor 

facility storage pools or ISFSIs located at 

reactor or away-from-reactor sites and 

that the Commission had reasonable 

assurance that a permanent disposal 

facility would be available by 2007– 

2009. 

The Commission conducted a review 

of its findings in 1989–1990, which 

resulted in the revision of Findings 2 

and 4 to reflect revised expectations for 

the date of availability of the first 

repository, and to clarify that the 

expiration of a reactor’s operating 

license referred to the full 40-year initial 

license for operation, as well as any 

additional term of a revised or renewed 

license: 

(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 

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; 

(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. 

(55 FR 38474; September 18, 1990) 

The Commission similarly amended 

the generic determination in 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 

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]. 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 38472; September 18, 

1990) 

This generic determination is applied 

in licensing proceedings conducted 

under 10 CFR parts 50, 52, 54, and 72. 

See 10 CFR 51.23(b) (2010). 

In 1999, the Commission reviewed its 

Waste Confidence Findings and 

concluded that experience and 

developments since 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 (64 FR 68005; 

December 6, 1999). The Commission has 

not found that the criteria put forth in 

1999 for reevaluating its findings have 

been met. But because the Commission 

is now preparing to conduct a 

significant number of proceedings on 

combined license (COL) applications for 

new reactors, and the issue of waste 

confidence has been raised in some of 

those proceedings and may be raised in 

others, it is prudent to take a fresh look 

at the NRC’s Waste Confidence Findings 

now, before completing the agency’s 

review of new reactor license 

applications. 

On February 14, 2002, the Secretary of 

Energy recommended the Yucca 

Mountain (YM) site for the development 

of a repository to the President thereby 

setting in motion the approval process 

set forth in sections 114 and 115 of the 

Nuclear Waste Policy Act, as amended 

(NWPA). See 42 U.S.C. 10134(a)(1); 

10134(a)(2); 10135(b), 10136(b)(2) 

(2006). On February 15, 2002, the 

President recommended the site to 

Congress. On April 8, 2002, the State of 

Nevada submitted a notice of 

disapproval of the site recommendation. 

Congress responded on July 9, 2002, by 

passing a joint resolution approving the 

development of a repository at YM, 

which the President signed on July 23, 

2002. See Public Law 107–200, 116 Stat. 

735 (2002) (codified at 42 U.S.C. 10135 

note (Supp. IV 2004)). 

On June 3, 2008, the Department of 

Energy (DOE) submitted the ‘‘Yucca 

Mountain Repository License 

Application,’’ seeking NRC’s 

authorization to begin construction of a 

permanent HLW repository at YM. U.S. 

Department of Energy, License 

Application for a High-Level Waste 

Geologic Repository at Yucca Mountain 

(2008), available at http://www.nrc.gov/ 

waste/hlw-disposal/yucca-lic-app.html. 

On September 8, 2008, the NRC staff 

found that the application contained 

sufficient information for the staff to 

begin its detailed technical review, and 

docketed the application (73 FR 53284; 

September 15, 2008). On October 17, 

2008, the Commission issued a ‘‘Notice 

of Hearing and Opportunity to Petition 

for Leave to Intervene’’ (73 FR 63029; 

October 22, 2008). Requests for hearing 

were received from 12 parties and 2 

interested governmental entities; these 

requests included 318 contentions to the 

application.2 The Construction 

Authorization Boards granted 10 of 

these petitions to intervene and 

admitted all but 17 of the 318 

contentions (ADAMS Accession 

Number ML091310479). 

On January 29, 2010, President 

Obama directed the Secretary of Energy 

to create a ‘‘Blue Ribbon Commission on 

America’s Nuclear Future’’ to evaluate 

options for the back-end of the nuclear 

fuel cycle. See Presidential 

Memorandum—Blue Ribbon 

Commission on America’s Nuclear 

Future (January 29, 2009), available at 

http://www.whitehouse.gov/the-pressoffice/presidential-memorandum-blueribbon-commission-americas-nuclearfuture. 

In the YM proceeding, DOE filed a 

‘‘Motion to Stay the Proceeding,’’ on 

February 1, 2010, which stated that the 

President, in the proposed budget for 

fiscal year 2011, ‘‘directed that the 

Department of Energy ‘discontinue its 

application to the U.S. Nuclear 

Regulatory Commission for a license to 

construct a high-level waste geologic 

repository at Yucca Mountain in 2010 

* * *’ ’’ (ADAMS Accession Number 

ML100321641 at 1). The Motion also 

stated that the proposed budget 

indicated that all DOE funding for YM 

would be eliminated in 2011. Id. 

Therefore, DOE stated its intent to 

withdraw the license application by 

March 3, 2010, and requested a stay of 

the proceeding to avoid unnecessary 

expenditure of resources by the Board 

and parties. See Id. at 2. Construction 

Authorization Board 4 granted a stay of 

the proceeding on February 16, 2010 

(ADAMS Accession Number 

ML100470423). 

On February 19, 2010, Aiken County, 

South Carolina filed an action in the 

U.S. Court of Appeals for the District of 

Columbia Circuit, challenging DOE’s 

decision to seek withdrawal of the 

license application. Similar lawsuits 

filed by three individuals living near 

Hanford, Washington (the Ferguson 

Petitioners), the State of South Carolina, 

and the State of Washington were 

consolidated into one proceeding now 

before the District of Columbia Circuit. 

See In re Aiken County, No. 10–1050 

(and consolidated cases) (DC Cir.). 

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81040 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

On March 3, 2010, DOE filed with the 

NRC a Motion to withdraw its license 

application with prejudice (ADAMS 

Accession Number ML100621397). On 

June 29, 2010, Construction 

Authorization Board 4 issued a 

Memorandum and Order (Granting 

Intervention to Petitioners and Denying 

Withdrawal Motion), LBP–10–11, ll 

NRC ll, denying DOE’s motion to 

withdraw as outside its authority under 

the NWPA (ADAMS Accession Number 

ML101800299). The Secretary of the 

Commission invited briefs from all the 

parties in the YM proceeding on 

whether to review and whether to 

uphold or reverse the Board’s decision. 

The Commission has not yet acted on 

these questions. 

Although the proposed updates to the 

Waste Confidence Decision and Rule 

did not consider some of these recent 

developments, the Commission has 

assumed, for the purposes of these 

updates, that YM would not be built. 

Even so, the new YM developments are 

pertinent. The Commission believes that 

the updates to the Waste Confidence 

Decision and Rule reflect the 

uncertainty regarding the timing of the 

availability of a geologic repository for 

SNF and HLW. The Commission, as a 

separate action, has directed the staff to 

develop a plan for a longer-term 

rulemaking and Environmental Impact 

Statement (EIS) to assess the 

environmental impacts and safety of 

long-term SNF and HLW storage beyond 

120 years (SRM–SECY–09–0090; 

ADAMS Accession Number 

ML102580229). This analysis will go 

well beyond the current analysis that 

supports at least 60 years of postlicensed life storage with eventual 

disposal in a deep geologic repository. 

The Commission believes that a more 

expansive analysis is appropriate 

because it will provide additional 

information (beyond the reasonable 

assurance the Commission is 

recognizing in the current rulemaking) 

on whether spent fuel can be safely 

stored for a longer time, if necessary. 

This analysis could reduce the 

frequency with which the Commission 

must, as a practical matter, consider 

waste storage capabilities. The staff’s 

new review will require an analysis and, 

to some extent, a forecast of the safety 

and environmental impacts of storage 

for extended periods of time beyond 

that currently recognized in 10 CFR 

51.23 and the Waste Confidence 

Decision. While storage of spent fuel for 

60 years beyond licensed life has been 

shown through experience or analyses 

to be safe and not to have a significant 

environmental impact, the proposed 

technical analysis will go well beyond 

the time frame of existing requirements. 

Even though the Commission has not 

determined whether this particular 

analysis will result in a different 

conclusion concerning the 

environmental impacts of extended 

spent fuel storage, the Commission 

believes that this unprecedented longterm review should be accompanied by 

an EIS. Preparing an EIS will ensure that 

the agency considers these longer-term 

storage issues from an appropriate 

perspective. The Commission has 

therefore decided to exercise its 

discretionary authority under 10 CFR 

51.20(a)(2) and is directing the staff to 

prepare a draft EIS to accompany the 

proposed rule developed as a result of 

this longer-term analysis. The updates 

to the Waste Confidence Decision in this 

document and the final rule published 

in this issue of the Federal Register rely 

on the best information currently 

available to the Commission and 

therefore are separate from this longterm initiative. The updates to the 

Waste Confidence Decision and Rule are 

not dependent upon the staff 

completing any action outside the scope 

of these revisions to the Waste 

Confidence Decision and Rule. 

Based upon the technical and 

environmental analysis contained in 

this document, and discussed at length 

below, the Commission has prepared 

this update of the Waste Confidence 

Decision and now makes the following 

revisions to Findings 2 and 4: 

(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 nuclear fuel 

generated by any reactor when necessary. 

(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 ISFSIs. 

The update to the Waste Confidence 

Decision restates and supplements the 

bases for the earlier findings and 

addresses the public comments received 

on the proposed revisions to the 

findings. 

The Commission is also concurrently 

publishing in this issue of the Federal 

Register a final rule revising 10 CFR 

51.23(a) to conform to the revisions of 

Findings 2 and 4. 

Responses to Public Comments 

The NRC received comments from 

environmental and other public interest 

organizations; the nuclear industry; 

States, local governments, an Indian 

Tribe, and inter-governmental 

organizations; and individuals. 

Comments from the 158 letters, 

including a late supplemental letter 

from the Attorney General of New York, 

have been categorized and grouped 

under 8 issues for purposes of this 

discussion. The issues include 

comments made in two form letters 

received from 1,990 and 941 

commenters, respectively. 

Issue 1: Compliance of the Waste 

Confidence Decision With the National 

Environmental Policy Act (NEPA) 

Comment 1: A large number of 

commenters stated that the NRC has not 

complied with NEPA in issuing its 

proposed revisions to the Waste 

Confidence Decision and to its generic 

determination in 10 CFR 51.23(a) 

because they believe that the revisions 

need to be supported by a Generic 

Environmental Impact Statement (GEIS). 

The National Resources Defense Council 

(NRDC) argues that these two agency 

actions ‘‘are, in effect, generic licensing 

decisions that allow for the production 

of additional spent reactor fuel and 

other radioactive wastes associated with 

the uranium fuel cycle—essentially in 

perpetuity.’’ Thus, these ‘‘generic 

licensing decisions,’’ in NRDC’s view, 

must ‘‘be accompanied by a [GEIS] that 

fully assesses the environmental 

impacts of the entire uranium fuel cycle, 

including health and environmental 

impacts and costs, and that examines a 

reasonable array of alternatives, 

including the alternative of not 

producing any additional radioactive 

waste.’’ 

Texans for a Sound Energy Policy 

(TSEP) stated that ‘‘the NRC has relied 

on the Waste Confidence Decision to 

license and re-license many nuclear 

power plants, and therefore it 

constitutes a major federal action 

significantly affecting the environment,’’ 

requiring preparation of an EIS. 

The Attorney General of New York 

argued that the NRC should ‘‘require and 

perform a site-specific evaluation of 

environmental impacts of spent fuel 

storage at each reactor location, taking 

into account environmental factors 

including surrounding population 

density, water resources, seismicity, 

subsurface geology, and topography 

along with the design, construction, and 

operating experience of the spent fuel 

pool in question and the layout of the 

fuel assemblies in that pool.’’ The 

Attorney General believes that these 

‘‘new factual conclusions also provide 

compelling evidence to support * * * 

[consideration] in relicensing 

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3This reflects the Commission’s confidence that 

a repository will be made available before the 

storage of the SNF and HLW becomes unsafe or 

would result in significant environmental impacts. 

Finding 2 also reflects the Commission’s belief that 

it cannot have confidence in a target date because 

it cannot predict when the societal and political 

obstacles to a successful repository program will be 

overcome. Once those obstacles are overcome, the 

Commission has confidence that a repository can be 

sited, licensed, and constructed within 25–35 years. 

4The Commission issued a proposed rule 

updating the 1996 GEIS on July 31, 2009 (74 FR 

38117) for a 75-day public comment period; the 

staff is currently preparing responses to the public 

comments. 

proceedings, such as the ongoing 

proceeding for the Indian Point power 

reactors, of any properly presented 

environmental and safety contention 

focused on the adequacy of mitigation 

measures taken or to be taken at that site 

to address the safety and environmental 

impacts flowing from the 20 additional 

years of spent fuel storage at the reactor 

site, the increased volume of spent fuel 

created during those 20 years, and the 

indefinite storage at that reactor site of 

all the waste generated by that reactor.’’ 

Finally a form letter, used by many 

commenters, asserts ‘‘it is appropriate 

that any major Federal action on 

radioactive waste (such as changing the 

Waste Confidence Decision) be 

considered in a generic (programmatic) 

NEPA proceeding’’ that includes all 

aspects of the nuclear fuel chain. 

NRC Response: In considering the 

NRC’s compliance with NEPA in 

revising its Waste Confidence Decision 

and Rule, it is important to keep in 

mind the limited scope of these 

revisions. The NRC 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 Findings 2 and 4 

of the Waste Confidence Decision. 

In revised 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 (rather than 30 years, as 

in the present finding) 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 ISFSIs. The 

revised generic determination in 10 CFR 

51.23(a) is dependent upon the 

environmental analysis supporting 

revised Finding 4. 

The revision also incorporates the 

Commission’s supporting analysis for 

revised Finding 2, which looks at the 

time necessary to develop a repository 

(about 25–35 years) and concludes that 

reasonable assurance exists that 

sufficient mined geologic repository 

capacity will be available when 

necessary to dispose of the commercial 

HLW and SNF originating in such 

reactor and generated up to that time. 

As the Commission indicated in its Staff 

Requirements Memorandum (SRM) 

approving publication of this Decision 

and the final rule, the changes to 

Finding 2 do not mean that the 

Commission has endorsed indefinite 

storage of SNF and HLW.3 See SRM– 

SECY–09–0090; ADAMS Accession 

Number ML102580229. 

The revised generic determination is 

not a generic licensing decision—it 

generically deals with one aspect of 

licensing decisions that have yet to be 

made. It does not authorize the 

operation of a NPP, the renewal of a 

license of a NPP, or the production of 

spent fuel by a NPP. NPPs and renewals 

of operating licenses are licensed in 

individual licensing proceedings. The 

NRC must prepare a site-specific EIS in 

connection with any type of application 

to construct and operate a NPP. See 10 

CFR 51.20(b). For operating license 

renewals, the NRC may rely on NRC’s 

GEIS for License Renewal of Nuclear 

Plants, NUREG–1437, May 1996, for 

issues that are common to all plants and 

must also prepare a Supplemental EIS 

that evaluates site-specific issues not 

discussed in the GEIS or ‘‘new and 

significant information’’ regarding issues 

that are discussed in the GEIS.4 See 10 

CFR part 51, subpart A, appendix B. 

Both types of licensing proceedings 

are supported by both generic and 

specific EISs. The generic determination 

in § 51.23(a) does play a role in the 

environmental analyses of the licensing 

and license renewal of individual NPPs; 

it excuses applicants for those licenses 

and the NRC from conducting an 

additional site-specific environmental 

analysis only within the scope of the 

generic determination in 10 CFR 

51.23(a). Thus, 10 CFR 51.23(b) 

provides: 

Accordingly, * * * within the scope of the 

generic determination in paragraph (a) of this 

section, 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, reactor combined 

license or amendment, or initial ISFSI license 

or amendment for which application is made, 

is required in any environmental report, 

[EIS], [EA], or other analysis prepared in 

connection with the issuance or amendment 

of an operating license for a [NPP] under 

parts 50 and 54 of this chapter, or issuance 

or amendment of a combined license for a 

[NPP] under parts 52 and 54 of this chapter, 

or the issuance of an initial license for 

storage of spent fuel at an ISFSI, or any 

amendment thereto (emphasis added). 

In short, the environmental analysis, 

which is done as part of the licensing or 

license renewals of individual NPPs, as 

well as the initial licensing of an ISFSI, 

does consider the potential 

environmental impacts of storage of 

spent fuel during the term of the license. 

What is not considered in those 

proceedings—due to the generic 

determination in 10 CFR 51.23(a)—is 

the potential environmental impact of 

storage of spent fuel for a 60-year period 

after the end of licensed operations or 

the potential environmental impacts of 

ultimate disposal. Environmental 

analysis for this period is covered by the 

environmental analysis the NRC has 

done in this update to the Waste 

Confidence Decision, particularly under 

Findings 3, 4, and 5. This analysis 

enables the Commission to generically 

resolve this issue because it 

demonstrates that spent fuel can be 

safely stored and managed under a 10 

CFR part 50 or 10 CFR part 72 license 

after the cessation of reactor operations 

for at least a 60-year period. Further, if 

it becomes clear that a repository will 

not be available by the expiration of the 

60-year post licensed life period, the 

Commission will revisit the Waste 

Confidence Decision and Rule early 

enough to ensure that it continues to 

have reasonable assurance of the safe 

storage without significant 

environmental impacts of the SNF and 

HLW. 

In addition, the NRC’s Waste 

Confidence Decision and Rule do not 

pre-approve any particular waste storage 

or disposal site technology—although 

the Decision does evaluate the technical 

feasibility of deep geologic disposal— 

nor do they require that a specific cask 

design be used for storage. Individual 

licensees and applicants, or in the case 

of a HLW repository, DOE, will have to 

apply for and meet all of the NRC’s 

safety and environmental requirements 

before the NRC will issue a license for 

storage or disposal. 

The NRC must prepare an EIS when 

the proposed action is a major Federal 

action significantly affecting the quality 

of the human environment or when the 

proposed action involves a matter that 

the Commission, in the exercise of its 

discretion, has determined should be 

covered by an EIS. 10 CFR 51.20(a). The 

NRC’s rulemaking action here is to 

incorporate a revised generic 

determination into 10 CFR 51.23(a), 

which expands from at least 30 years to 

at least 60 years after licensed life the 

period during which the Commission 

has confidence that spent fuel can be 

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81042 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

5These political and societal issues are discussed 

in the analysis of Finding 2 in this document. 

safely stored without significant 

environmental impacts and to state its 

confidence that a permanent repository 

will be available when necessary. As the 

Commission explained in 1984 and 

1990, this final rulemaking action 

formally incorporating the revised 

generic determination in the 

Commission’s regulations does not have 

separate independent environmental 

impacts (49 FR 34693; August 31, 1984, 

55 FR 38473; September 18, 1990). The 

environmental analysis that the revised 

generic determination is based on is 

found in this update to the Waste 

Confidence Decision, which serves as 

the Environmental Assessment (EA) for 

the rule. 

The updates to the Waste Confidence 

Decision and Rule, as explained above, 

do not authorize any licensing or other 

Federal action. The rule does have the 

effect of removing from a reactor 

operating license proceeding, license 

renewal proceeding, or initial ISFSI 

licensing proceeding the issue of 

whether safe storage of SNF can be 

accomplished without any significant 

environmental impact for an additional 

30 years beyond the 30 years provided 

by the current generic determination. 

The update to the Waste Confidence 

Decision explains and documents the 

Commission’s continued reasonable 

assurance that this extended storage 

period will have no significant 

environmental impacts. Given this 

conclusion, a finding of no significant 

environmental impact (FONSI) may be 

made and preparation of an EIS is not 

required. 

Comment 2: A number of commenters 

asserted that the NRC, in making its 

FONSI, has not complied with its 

procedural requirements for a FONSI: 

10 CFR 51.32, or with the requirements 

of the Council on Environmental 

Quality: 40 CFR 1508.13. In particular, 

some commenters claim that the NRC 

has not published an EA, as required by 

10 CFR 51.32, and has not identified all 

the documents that the FONSI is based 

on. TSEP asserts that the NRC’s alleged 

failure to comply with its procedural 

requirements for a FONSI also results in 

a violation of the Administrative 

Procedure Act because it means the 

public has not had an opportunity to 

comment on the basis for the FONSI. 

NRC Response: As explained in 

response to Comment 1, the only 

Federal action involved in this 

rulemaking is the amendment of 10 CFR 

51.23(a). This amendment adopts the 

expansion, by 30 years, of the 

Commission’s Finding 4 in its 1990 

Waste Confidence Decision that spent 

fuel generated in any reactor can be 

stored safely and without significant 

environmental impacts after the 

licensed life for operation of the reactor; 

the amendment also captures the 

revisions to Finding 2 in the Waste 

Confidence Decision that deep geologic 

disposal capacity will be available when 

necessary. This is the action described 

in the NRC’s proposed FONSI (See 73 

FR 59550; October 9, 2008). 

The formal incorporation of revised 

Findings 2 and 4 into 10 CFR 51.23(a) 

has no separate independent 

environmental impact from the 

revisions of Findings 2 and 4. The 

update and revision of the Waste 

Confidence Decision is the EA 

supporting the action and the basis for 

the FONSI and, as evidenced by the 

breadth of comments received, the 

findings of the Waste Confidence 

Decision have been made available for 

public review and comment. The update 

was undertaken, as a matter of 

discretion, to ensure the currency of the 

Waste Confidence Findings, which have 

not been changed in nearly 20 years. 

The NRC’s procedural requirements 

for an EA call for a brief discussion of 

the need for the proposed action, 

alternatives to that action, and the 

environmental impacts of the proposed 

action and alternatives as well as a list 

of agencies and persons consulted and 

identification of the sources used. See 

10 CFR 51.30(a). The Commission’s 

proposal explained that the need for an 

update of the 1990 Waste Confidence 

Decision was prompted by a desire to 

make anticipated licensing proceedings 

for new reactors more efficient by 

resolving any concerns that the generic 

determination was out of date and could 

not be relied upon in these licensing 

proceedings (See 73 FR 59553, 59558; 

October 9, 2008). The Commission’s 

proposed rule also explicitly raised the 

question, in the context of revising 

Finding 2, whether it should remove a 

target date from Finding 2 and make a 

general finding of reasonable assurance 

that SNF generated in any reactor can be 

stored safely and without significant 

environmental impacts until a disposal 

facility can reasonably be expected to be 

available (See 73 FR 59561–59562; 

October 9, 2008). 

The Commission explained what the 

basis of this alternative finding would 

be: 

In other words, in response to the court’s 

concerns that precipitated the original Waste 

Confidence proceeding, the Commission 

could now say that there is no need to be 

concerned about the possibility that spent 

fuel may need to be stored at onsite or offsite 

storage facilities at the expiration of the 

license (including a renewed license) until 

such time as a repository is available because 

we have reasonable assurance that spent fuel 

can be so stored for long periods of time, 

safely and without significant environmental 

impact. Such a finding would be made on the 

basis of the Commission’s accumulated 

experience of the safety of long-term spent 

fuel storage with no significant 

environmental impact (see Finding 4) and its 

accumulated experience of the safe 

management of spent fuel storage during and 

after the expiration of the reactor operating 

license (see Finding 3). Id. 

The Commission explicitly sought 

public comment on whether any 

additional information would be needed 

to make this change. The update to the 

Waste Confidence Decision shows that 

there would be no difference between 

the environmental impacts of the 

proposed action of extending the time 

period for safe storage of SNF by 30 

years and the no-action alternative of 

leaving it as it is. The Commission also 

stated in its proposed update and rule 

that the environmental impacts of the 

alternative of indefinite storage may be 

the same, but found no need to make 

this prediction due to its expectation 

that a repository will be available within 

50–60 years of the end of any reactor’s 

license for the disposal of its spent fuel. 

The Commission has, however, now 

reconsidered its position regarding the 

use of the 50–60 year target date: The 

Commission has confidence that spent 

fuel can be safely stored without 

significant environmental impact for 

long periods of time as described in its 

discussion of Findings 3, 4, and 5. But 

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 precise date or 

time frame when a repository will 

become available.5 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 (e.g., congressional 

action or executive order) to start a new 

repository program. The Commission 

continues to have confidence, as 

expressed in Findings 3 and 5, that safe 

and sufficient onsite or offsite storage 

capacity is and will be available until 

the waste is sent to a repository for 

disposal. In addition, revised Finding 4 

supports safe onsite or offsite storage 

without significant environmental 

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81043 

impacts for at least 60 years beyond the 

end of the licensed life for operation of 

any nuclear power reactor. Given that 

long period of time, the current ‘‘BlueRibbon Commission’’ studying options 

for handling SNF, the Commission’s 

direction to the NRC staff to consider 

whether it is feasible to expand the 60- 

year period for safe storage, and a 

continued Federal obligation to site and 

build a repository under the Nuclear 

Waste Policy Act, the Commission has 

reasonable assurance that disposal 

capacity will become available when 

necessary and that there will be 

sufficient safe and environmentally 

sound storage for all of the spent 

nuclear fuel until disposal capacity 

becomes available. 

Further, the Commission has decided 

not to endorse the concept of indefinite 

storage that was discussed with the 

alternative Finding 2 in the proposed 

rule (73 FR 59561–59562; October 9, 

2008). The Commission has determined 

that it is not necessary to endorse 

indefinite storage if there is no target 

date for a repository because the 

Commission has confidence that either 

a repository will be available before the 

expiration of the 60 years post-licensed 

life discussed in Finding 4 or that the 

Waste Confidence Decision and Rule 

will be updated and revised if the 

expiration of the 60-year period 

approaches without an ultimate 

disposal solution for the HLW and SNF. 

With respect to the claim that the 

NRC must make the documents on 

which its FONSI relies available to the 

public, the commenters are correct that 

the NRC must disclose all portions of 

the documents that informed its NEPA 

analysis and that are not exempt from 

public disclosure under the Freedom of 

Information Act (FOIA). The 

Commission acknowledged this fact 

when, in Pacific Gas and Electric Co. 

(Diablo Canyon Power Plant 

Independent Spent Fuel Storage 

Installation), CLI–08–01, 67 NRC 1 

(2008), it directed the NRC staff to 

prepare a complete list of the 

documents on which it relied in 

preparing its EA. 

In the case of the update to the Waste 

Confidence Decision, the NRC has 

complied with this standard—all of the 

documents relied upon in preparing the 

update to the Waste Confidence 

Decision and Rule are referenced. Two 

of the referenced documents are not 

publicly available: reports concerning 

the safety and security of spent fuel pool 

storage issued by Sandia National 

Laboratories and the National Academy 

of Sciences (NAS), which are Classified, 

Safeguards Information, 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 

Sandia study can be found in ADAMS 

at (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 

Decision. 

In sum, the NRC’s FONSI identifies 

the proposed action and relies upon an 

EA that explains at considerable length 

the reasons why this action will not 

have a significant effect on the quality 

of the human environment and 

describes the documents relied upon 

and how these documents may be 

accessed by the public. 

Comment 3: A number of commenters 

asserted that the NRC has failed to 

comply with NEPA because the NRC 

has not prepared a GEIS to review and 

update Table S–3 of 10 CFR 51.51(b). 

Table S–3 lists environmental data to be 

used by applicants and the NRC staff as 

the basis for evaluating the 

environmental effects of the portions of 

the fuel cycle that occur before new fuel 

is delivered to the plant and after spent 

fuel is removed from the plant site for 

light-water reactors. Table S–3 was 

incorporated into the NRC’s regulations 

in 1979 and includes an assumption, 

based on NRC staff’s analysis of disposal 

in a bedded-salt geologic repository, that 

after a repository is sealed there would 

be no further release of radioactive 

materials to the environment (the ‘‘zero 

release assumption’’). The 1979 

rulemaking also included an 

expectation that ‘‘a suitable bedded-salt 

repository site or its equivalent will be 

found’’ (44 FR 45362 and 45368; August 

2, 1979). 

The commenters stated that the NRC’s 

proposed revisions to the Waste 

Confidence Decision acknowledge that 

salt formations are now only being 

considered as hosts for reprocessed 

nuclear materials because heatgenerating waste, like SNF, exacerbates 

a process by which salt can rapidly 

deform (See 73 FR 59555; October 9, 

2008). For this and other reasons, the 

commenters believe that Table S–3 has 

been undermined and is out of date and 

needs to be reviewed in a GEIS. NRDC 

also believes that the Table S–3 Rule’s 

‘‘finding of no significant health impacts 

fundamentally supports the Waste 

Confidence Decision because its 

estimate of zero radioactive releases 

from a repository is based on the 

Commission’s then-current Waste 

Confidence finding, that ‘a suitable 

bedded-salt repository site or its 

equivalent will be found.’ ’’ The 

commenters also note that the 

Commission, in 1990, indicated that it 

would find it necessary to review the 

Table S–3 Rule if it found, in a future 

review of the Waste Confidence 

Decision, that its confidence in the 

technical feasibility of disposal in a 

mined geologic repository had been lost 

(55 FR 38491; September 18, 1990). The 

commenters believe that the 

Commission lacks a basis for continued 

confidence in the technical feasibility of 

safe geologic disposal and that the 

relationship of the Table S–3 rule to the 

Waste Confidence Decision is such that 

a GEIS to review the Table S–3 Rule is 

a necessary prerequisite to a revision of 

the Waste Confidence Findings. 

NRC Response: The Waste Confidence 

Decision does not rely on findings made 

in the context of the Table S–3 Rule. 

Even in 1984, the Commission’s 

confidence that a suitable geologic site 

for a repository would be found was not 

premised on the expectation that a 

bedded-salt site would be located, but 

rather on the fact that DOE’s site 

exploration efforts were ‘‘providing 

information on site characteristics at a 

sufficiently large number and variety of 

sites and geologic media to support the 

expectation that one or more technically 

acceptable sites will be identified.’’ (49 

FR 34668; August 31, 1984). Similarly, 

the issue of concern to the NRC in 

considering waste confidence has not 

been whether a zero-release assumption 

will be met, but rather when 

Environmental Protection Agency (EPA) 

would issue standards ensuring that any 

releases of radioactive materials to the 

environment would not be inimical to 

public health and safety (See 55 FR 

38500; September 18, 1990). 

In 1990, the Commission discussed 

the relationship of the Table S–3 

rulemaking with the Waste Confidence 

proceeding (See 55 FR 38490–38491; 

September 18, 1990). The Commission 

noted that the Table S–3 proceeding was 

the outgrowth of efforts to generically 

address the NEPA requirement for an 

evaluation of the environmental impacts 

of operation of a light water reactor 

(LWR), that Table S–3 assigned 

numerical values for environmental 

costs resulting from uranium fuel cycle 

activities to support one year of LWR 

operation, and that the Waste 

Confidence proceeding was not 

intended to make quantitative 

judgments about the environmental 

costs of waste disposal. The 

Commission stated that unless, ‘‘in a 

future review of the Waste Confidence 

decision, [it] finds that it no longer has 

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81044 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

6As discussed below, Finding 1 deals with the 

general technical feasibility of a repository and is 

not dependent upon a specific site. Further, the 

Commission makes it clear in its discussion of 

Finding 2 that the Findings assume that YM will 

not be used as a geologic repository. 

confidence in the technical feasibility of 

disposal in a mined geologic repository, 

the Commission will not consider it 

necessary to review the S–3 rule when 

it reexamines its Waste Confidence 

Findings in the future’’ (55 FR 38491; 

September 18, 1990). The Commission 

continues to have confidence in the 

technical feasibility of disposal in a 

mined geologic repository (see NRC 

Response to Comment 8 and the 

discussion of Finding 1 later in this 

document) so there is no need to review 

the S–3 rule to support its Waste 

Confidence Findings.6 This does not 

preclude the NRC from taking future 

regulatory action to amend Table S–3 if 

doing so appears to be necessary or 

desirable. In 2008, the Commission 

stated that ‘‘[t]he NRC will continue to 

evaluate, as part of its annual review of 

potential rulemaking activity, the need 

to amend Table S–3.’’ New England 

Coalition on Nuclear Pollution; Denial 

of Petition for Rulemaking (73 FR 

14946, 14949; March 20, 2008). 

Comment 4: The Attorney General of 

California believes that the Waste 

Confidence Decision violates core 

principles of NEPA and the NRC’s 

regulations because it does not allow for 

supplementation of an EIS for an ISFSI 

even when there is significant change in 

the circumstances under which a project 

is carried out or when there is 

significant new information regarding 

the environmental impacts of the 

project. See 10 CFR 51.92(a). He asserts 

that ‘‘NRC has not shown a clearly 

articulated justification, based on 

substantial evidence in the record, for 

the proposed extension of this 

presumption that no change in 

circumstance, and no new information, 

can ever trigger the NEPA duty to 

supplement the environmental analysis 

of the long-term onsite storage of 

nuclear waste.’’ The Attorney General 

also believes that the proposed update 

to the Waste Confidence Decision 

allows NPPs ‘‘to be substantially repurposed and transformed into longterm storage facilities * * * without 

environmental review’’ and that 

therefore supplementation of the initial 

EIS for the NPP may be warranted. 

Similarly, the Attorney General of New 

York, in a supplemental comment, 

argues that the Commission’s proposed 

revision to Finding 2 (originally 

discussed in the Commissioners’ 

September 2009 votes) endorses a policy 

of indefinite storage and that the 

Commission ‘‘has not made a generic 

determination regarding environmental 

and safety issues presented by indefinite 

storage of spent fuel at the site of 

nuclear reactors following shutdown.’’ 

NRC Response: Under 10 CFR 

51.23(b), the NRC does not need to 

prepare a site-specific EA or EIS during 

individual NPP licensing that discusses 

the environmental impacts of spent fuel 

storage for the period following the term 

of the reactor license or initial ISFSI 

license because of the generic 

determination the Commission has 

made in 10 CFR 51.23(a) that spent fuel 

can be stored safely and without 

significant environmental impacts for at 

least 60 years beyond the licensed life 

of the reactor. The generic 

determination is based on the 

environmental analysis conducted in 

the Waste Confidence Decision. 

However, the commenter is not correct 

that this means that an EA or EIS for a 

reactor or an ISFSI may never need to 

be supplemented even if there is a 

significant change in circumstances or 

significant new information that 

demonstrates that the application of the 

generic determination would not serve 

the purposes for which it was adopted. 

Under 10 CFR 51.20(a)(2), the 

Commission, in its discretion, may 

determine that a proposed action 

involves a matter that should be covered 

by an EIS. Further, 10 CFR 2.335(b) 

provides that a party to an adjudicatory 

proceeding may petition for the waiver 

of the application of the rule or for an 

exception for that particular proceeding. 

The sole grounds for a petition for 

waiver or exception is that special 

circumstances with respect to the 

subject matter of the particular 

proceeding exist so that the application 

of the rule would not serve the purposes 

for which it was adopted. 

More fundamentally, as the 

Commission clarified in its SRM 

authorizing publication of this decision 

and final rule in the Federal Register, 

the changes to the Waste Confidence 

Decision and Rule are not intended to 

support indefinite storage. If the time 

frame for safe and environmentally 

sound storage included in Finding 4 

approaches without the availability of 

sufficient repository capacity, the 

Commission will revisit the Waste 

Confidence Decision and Rule. 

Comment 5: Riverkeeper asserts that 

the NRC made its finding of no 

significant impact in its initial 1984 

decision ‘‘without performing an 

environmental review pursuant to 

NEPA, explicitly stating that an [EIS] 

was not necessary,’’ and then has 

continued to make this finding without 

appropriate environmental review. 

NRC Response: Riverkeeper is correct 

that the NRC concluded in 1984 that 

Finding 4—that SNF could be safely 

stored without significant 

environmental impacts for at least 30 

years beyond the expiration of the 

reactor’s operating license—did not 

require the support of an EIS (See 49 FR 

34666; August 31, 1984). This does not 

mean that this finding was made 

without performing the required 

environmental review under NEPA. The 

Commission explained that the Waste 

Confidence Decision itself considered 

the environmental aspects of spent fuel 

storage and did comply with NEPA. Id. 

No EIS was conducted because the 

fourth finding concluded that the 

environmental impacts from extended 

storage of SNF are so insignificant as not 

to require consideration in an EIS. The 

NRC has explained in its response to 

Comment 1 why an EIS is unnecessary 

to support the expansion of its generic 

determination. 

Issue 2: Compliance of the Waste 

Confidence Decision With the Atomic 

Energy Act (AEA) 

Comment 6: Several commenters 

asserted that the updates to the Waste 

Confidence Decision and Rule do not 

comply with the AEA. They stated that 

that 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) 

(2006). They note that the Commission 

continues to state that 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. These commenters 

assert that Finding 1 effectively 

constitutes a licensing determination 

that spent fuel disposal risks are not 

inimical to public health and safety, and 

that Findings 3, 4, and 5 effectively 

constitute a licensing determination that 

spent fuel storage risks are not inimical 

to public health and safety. Because the 

commenters believe that the NRC has 

presented no well-documented safety 

findings supporting its findings, they 

contend that the NRC’s revisions of its 

findings are in violation of the AEA. 

NRC Response: As explained in the 

response to Comment 1, the NRC’s 

update to the Waste Confidence 

Decision and Rule are not licensing 

decisions. 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 are 

conclusions of the Commission’s 

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7 In North Anna, the court considered whether 

the Commission’s ‘‘reasonable assurance’’ standard 

required an applicant for a NPP license to prove 

beyond a reasonable doubt that an earthquake fault 

under the proposed site was not capable. The court 

found that neither the AEA nor the pertinent 

regulations required the Commission to find, under 

its reasonable assurance standard, that the site was 

totally risk-free. See also Power Reactor 

Development Co. v. International Union of 

Electrical, Radio and Machine Workers, 367 U.S. 

396, 414 (1961), where the Supreme Court rejected 

a claim that the Commission’s finding of reasonable 

assurance needed to be based on ‘‘compelling 

reasons’’ when a construction permit for a reactor 

sited near a large population center was being 

considered. 

environmental analyses, under NEPA, of 

the foreseeable environmental impacts 

stemming from the storage of SNF after 

the end of reactor operation. 

As long ago as 1978, the U.S. Court of 

Appeals for the Second Circuit 

considered the question ‘‘whether NRC, 

prior to granting nuclear power reactor 

operating licenses, is required by the 

public health and safety requirement of 

the AEA to make a determination * * * 

that high-level radioactive wastes can be 

permanently disposed of safely.’’ 

Natural Resources Defense Council v. 

NRC, 582 F. 2d 166, 170 (1978) 

(emphasis in original). The court found 

that the NRC was not required to make 

a finding under the AEA that SNF could 

be disposed of safely at the time a 

reactor license was issued, but that it 

was appropriate for the Commission to 

make this finding in considering a 

license application for a geologic 

repository. Similarly, the U.S. Court of 

Appeals for the District of Columbia 

Circuit did not vacate amendments to 

NPP operating licenses permitting the 

reracking of spent fuel storage pools 

because it was concerned about the 

availability of storage or disposal 

facilities at the end of licensed 

operation. State of Minnesota v. NRC, 

602 F. 2d 412 (DC Cir. 1979). Rather, 

that court was concerned that the 

Commission’s confidence in these 

matters had not been subjected to public 

scrutiny, so it directed the Commission 

to conduct a rulemaking proceeding to 

assess its degree of confidence on these 

issues, leading to the original Waste 

Confidence proceeding. 

The Commission will make the safety 

finding with respect to SNF disposal 

envisioned by the commenters in the 

context of a licensing proceeding for a 

geologic repository. The Commission 

does make the safety findings with 

respect to storage of SNF envisioned by 

the commenters in the context of 

licensing proceedings for NPPs and 

ISFSIs for the terms of those licenses. 

Issue 3: What is the meaning of 

‘‘reasonable assurance’’ in the waste 

confidence Findings? 

Comment 7: One commenter 

expressed the view that the NRC should 

continue to take a position of 

suspending the licensing of reactors if it 

does not have confidence beyond a 

reasonable doubt that wastes can and 

will be disposed of safely. Another 

commenter criticized the NRC for 

‘‘fail[ing] to define the standard for 

reasonable assurance—what level of 

assurance that they found in making 

their determination—90%, 51%, 5%.’’ 

NRC Response: The ‘‘reasonable 

assurance’’ standard is not equivalent to 

the ‘‘beyond a reasonable doubt’’ 

standard used in the criminal law. 

North Anna Environmental Coalition v. 

NRC, 533 F.2d 655, 667 (DC Cir. 1976) 

(North Anna).7 It is more akin to a ‘‘clear 

preponderance of the evidence’’ 

standard, and what constitutes 

‘‘reasonable assurance’’ depends on the 

particular circumstances of the issue 

being examined. In a 2009 decision 

affirming the license renewal of the 

Oyster Creek NPP, the Commission 

explained: ‘‘Reasonable assurance is not 

quantified as equivalent to a 95% (or 

any other percent) confidence level, but 

is based on sound technical judgment of 

the particulars of a case and on 

compliance with our regulations 

* * * .’’ In re Amergen Energy Co. 

(License Renewal for Oyster Creek 

Nuclear Generating Station), CLI–09–07, 

69 NRC 235 (April 1, 2009). 

Thus, the Commission’s reasonable 

assurance that, if necessary, spent fuel 

generated in any reactor can be stored 

safely without significant environmental 

impacts for at least 60 years beyond the 

licensed life for operation of that reactor 

is based on a clear preponderance of the 

technical and scientific evidence 

described in the discussion of Finding 

4. The Commission’s reasonable 

assurance in Finding 2, that sufficient 

repository capacity will be available 

when necessary, is somewhat different; 

it does not include a specific date for 

when a repository will be available and 

is supported by an analysis that 

considers how long it may take to 

successfully complete the process to 

select a site, license, and build a 

repository. This analysis is not purely 

scientific, and thus the evidence has 

more qualitative content than evidence 

considered for strictly scientific or 

technical issues. 

Issue 4: Whether the Commission Has 

an Adequate Basis for Reaffirming 

Finding 1 

Comment 8: TSEP believes that the 

Commission lacks a sound basis for 

reaffirming Finding 1: that there is 

reasonable assurance that safe disposal 

of HLW and SNF in a mined geologic 

repository is technically feasible. In 

support of its view, TSEP provides the 

comments of the Institute for Energy 

and Environmental Research (IEER) by 

Dr. Arjun Makhijani. IEER stated that 

‘‘the Waste Confidence Decision 

presents a safety finding, under the 

Atomic Energy Act, that the NRC has 

reasonable assurance that disposal of 

spent fuel will not pose an undue risk 

to public health and safety. It does so 

via the finding that disposal is 

technically feasible and can be done in 

conformity with the assumption of zero 

releases in Table S–3 * * *.’’ IEER 

believes that the NRC has failed to 

address available information, which 

shows that the NRC currently does not 

have an adequate technical basis for a 

reasonable level of confidence that 

spent fuel can be isolated in a geologic 

repository. 

IEER defines ‘‘safe disposal’’ as 

involving ‘‘(i) the safety of building the 

repository, putting the waste in it, and 

backfilling and sealing it, and (ii) the 

performance relative to health and 

environmental protection standards for 

a long period after the repository is 

sealed * * *. [I]t is essential to show a 

reasonable basis for confidence that the 

public and the environment far into the 

future will be adequately protected from 

the effects of disposal at a specific site 

and a specific engineered system built 

there.’’ Further, IEER believes that 

‘‘reasonable assurance’’ requires ‘‘a 

statistically valid argument based on 

real-world data that would show (i) that 

all the elements for a repository exist 

and (ii) that they would work together 

as designed, as estimated by validated 

models. The evidence must be sufficient 

to provide a reasonable basis to 

conclude that the durability of the 

isolation arrangements would be 

sufficient to meet health and 

environmental standards for long 

periods of time * * * with a high 

probability.’’ IEER believes that the NRC 

does not have the requisite reasonable 

assurance because the NRC ‘‘has not 

taken into account a mountain of data 

and analysis’’ derived from the YM 

repository program and from the French 

program at the Bure site, which 

illustrate the problems these programs 

have encountered and thus show, in 

IEER’s view, ‘‘that it is far from assured 

that safe disposal of spent fuel in a 

geologic repository is technically 

feasible.’’ IEER also cites to the historical 

difficulty the EPA has had in 

formulating radiation protection 

standards and notes that ‘‘[w]ithout a 

final standard that is clear of court 

challenges, performance assessment 

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must necessarily rest on guesses about 

what it might be; this is not a basis on 

which ‘reasonable assurance’ of the 

technical feasibility of ‘safe disposal’ 

can be given, for the simple reason that 

there is no accepted definition of safe in 

relation to Yucca Mountain as yet.’’ 

NRC Response: IEER confuses the 

safety finding that the NRC must make 

under the AEA when considering an 

application for a license to construct 

and operate a repository at an actual site 

with the Waste Confidence Findings 

made under NEPA, including the 

finding that there is reasonable 

assurance that safe disposal of HLW and 

SNF is technically feasible. See 

response to Comment 6. The NRC 

currently has before it DOE’s 

application for a construction 

authorization at the YM site and, if the 

proceeding moves forward, will 

consider information submitted with 

admitted contentions that may call into 

question DOE’s ability to safely dispose 

of HLW and SNF at that site. However, 

it is very important that the Commission 

preserve its adjudicatory impartiality 

and not consider ex parte 

communications of the type proffered 

by IEER outside of the YM licensing 

proceeding, and it has been careful not 

to do so in the context of reviewing its 

Waste Confidence Decision. See 10 CFR 

2.347. 

Webster’s Third New International 

Dictionary (1993) defines ‘‘feasible’’ as 

‘‘capable of being done, executed, or 

effected: possible of realization.’’ The 

Commission began its discussion of 

Finding 1 in its original 1984 decision 

by stating that ‘‘[t]he Commission finds 

that safe disposal of [HLW and SNF] is 

technically possible and that it is 

achievable using existing technology’’ 

(49 FR 34667; August 31, 1984) 

(emphasis added). The Commission 

then went on to say: ‘‘Although a 

repository has not yet been constructed 

and its safety and environmental 

acceptability demonstrated, no 

fundamental breakthrough in science or 

technology is needed to implement a 

successful waste disposal program.’’ Id. 

This focus on whether a fundamental 

breakthrough in science or technology is 

needed has guided the Commission’s 

consideration of the feasibility of the 

disposal of HLW and SNF. 

The Commission identified three key 

technical problems that would need to 

be solved: the selection of a suitable 

geologic setting, the development of 

waste packages that can contain the 

waste until the fission product hazard is 

greatly reduced, and engineered barriers 

that can effectively retard migration of 

radionuclides out of the repository. Id. 

In 1984, the Commission reviewed 

evidence indicating that there are 

geologic media in the United States in 

many locations potentially suitable for a 

waste repository; that the chemical and 

physical properties of HLW and SNF 

can be sufficiently understood to permit 

the design of a suitable waste package; 

and that DOE’s development work on 

backfill materials and sealants provided 

a reasonable basis to expect that backfill 

materials and long-term seals can be 

developed. In 1990, the Commission 

noted that the NRC staff had not 

identified any fundamental technical 

flaw or disqualifying factor for any of 

the nine sites DOE had identified as 

potentially acceptable for a repository, 

even though the HLW program was then 

focused exclusively on the YM site (55 

FR 38486; September 18, 1990). 

Similarly, the Commission found no 

reason to abandon its confidence in the 

technical feasibility of developing a 

suitable waste package and engineered 

barriers, even though DOE’s scientific 

programs were focused on Yucca 

Mountain (See 55 FR 38488–38490; 

September 18, 1990). Both the EPA and 

the NRC have standards in place that 

would have to be met by either the 

proposed repository at YM or a 

repository at any other site. See 40 CFR 

parts 190 and 197 and 10 CFR parts 60 

and 63. 

IEER does not assert that the need for 

a scientific or technical breakthrough 

stands in the way of establishing any 

possible repository; IEER believes that 

the evidence it has offered shows that a 

repository at YM will not be capable of 

meeting the EPA’s standards and the 

NRC’s performance objectives. This 

could turn out to be the case, but this 

does not mean that safe disposal of 

HLW and SNF in some repository is not 

possible. 

Issue 5: Whether the Commission Has 

an Adequate Basis To Revise Finding 2 

Comment 9: Many commenters 

responded to the Commission’s request 

for comments on whether the 

Commission should revise Finding 2 to 

predict that repository capacity will be 

available within 50–60 years beyond the 

licensed life for operation of all reactors 

or whether the Commission should 

adopt a more general finding of 

reasonable assurance that SNF 

generated in any reactor can be stored 

safely and without significant 

environmental impacts until a disposal 

facility can reasonably be expected to be 

available. 

Specific Question for Public 

Comment: In its proposed rule and its 

proposed revisions to the Waste 

Confidence Decision, the Commission 

explicitly requested public comment on 

an alternative approach to Finding 2 (73 

FR 59550 and 73 FR 59561; March 20, 

2008). The Commission recognized that 

its proposed revision of Finding 2, to 

include a time frame for availability of 

repository capacity within 50–60 years 

beyond the licensed life for operation of 

all reactors, is based on its assessment 

not only of its understanding of the 

technical issues involved, but also 

predictions of the time needed to bring 

about the necessary societal and 

political acceptance for a repository site. 

Recognizing the inherent difficulties 

in making this prediction, the 

Commission outlined an alternative 

approach wherein it would adopt a 

more general finding of reasonable 

assurance that SNF generated in any 

reactor can be stored safely and without 

significant environmental impacts until 

a disposal facility can reasonably be 

expected to be available. This finding 

would be made on the basis of the 

Commission’s accumulated experience 

of the safety of long-term spent fuel 

storage with no significant 

environmental impact (see Finding 4) 

and its accumulated experience of the 

safe management and storage of spent 

fuel during and after the expiration of 

the reactor operating license (see 

Finding 3). The Commission also asked 

whether additional information is 

needed for this approach or whether 

accompanying changes should be made 

to its other findings on the long-term 

storage of spent fuel if this approach is 

adopted. 

The State of Nevada (NV), Clark and 

Eureka Counties in NV, and the Nuclear 

Energy Institute (NEI) provided 

comments supporting the alternative 

approach to Finding 2. NV supports the 

approach because it believes that 

specifying a time frame involves too 

much speculation about public 

acceptance, future technology, a 

possible redirection of the waste 

disposal program, adequate funding, 

and the outcome of the NRC licensing 

proceedings. NV believes that ‘‘whatever 

the NRC’s period of safe storage might 

be, it is long enough for the Commission 

to generally conclude that, even if 

Yucca Mountain fails, one or more other 

repository sites (or some other form of 

disposition) would be available before 

dry storage of reactor spent fuel * * * 

could pose any significant safety or 

environmental problem.’’ Further, NV 

suggested that if the Commission 

followed this approach, it could 

dispense with Finding 2 altogether since 

Finding 3 provides reasonable assurance 

that HLW and SNF will be managed in 

a safe manner until sufficient repository 

capacity is available. Clark and Eureka 

Counties believe that focusing waste 

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8The Commission’s September 2009 votes, along 

with the September 2010 votes, are available at 

http://www.nrc.gov/reading-rm/doc-collections/ 

commission/cvr/2009/2009–0090vtr.pdf. 

9The license renewal period for operating 

reactors in 10 CFR part 54 is 20 years. 

confidence on management of SNF 

allows for consideration of a more 

systemic approach to waste 

management that considers an array of 

options and takes into account evolving 

energy policy at the national and 

international level, technology 

enhancements, and scientific research 

that could lead to new approaches and 

alternatives. NEI stated that ‘‘identifying 

the exact number of years involved is 

not necessary because, for whatever 

length of time is needed, the NRC’s 

regulations will continue to provide a 

high standard of safety in the storage of 

spent nuclear fuel, and industry is 

compelled to comply with these 

regulations.’’ 

Many comments from States, State 

organizations, one NV county, 

environmental groups and individuals 

opposed the alternative approach and 

want the Commission to retain a time 

frame. These commenters believe that a 

time frame is necessary to provide an 

incentive to the Federal Government to 

meet its responsibilities for the disposal 

of HLW. One commenter favored only a 

slight extension of the repository 

availability date to 2035 in the belief 

that a further extension or removal of a 

time frame would remove virtually all 

societal incentives for the United States 

to develop a geologic repository. Some 

commenters feared that removal of a 

time frame, which would remove any 

pressure on the Federal Government to 

resolve the SNF disposal issue, would 

lead to added costs to taxpayers due to 

the accumulating damages incurred by 

DOE because of its failure to honor its 

contracts for accepting SNF. Nye 

County, NV believes that removal of the 

time frame implies that there is no 

urgency in implementing the NWPA. 

Nye County believes that waste 

confidence would better be achieved if 

Finding 2 included a reaffirmation of 

the need for a repository for ultimate 

waste confidence and for its role in the 

nation’s commitment to support the 

environmental cleanup of weapons 

program sites because a repository will 

be needed even if other options for 

spent fuel management, such as 

recycling, are adopted. 

Some commenters believe that 

removal of a time frame does not 

acknowledge the intergenerational 

ethical concerns of this generation 

reaping the benefits of nuclear energy, 

and passing off the nuclear waste 

products to future generations without 

providing them with any ultimate 

disposal solution. Nye County believes 

that intergenerational equity is still the 

primary international basis for the 

policy of geologic disposal. The Western 

Interstate Energy Board, in urging 

retention of a time frame, states that the 

NRC should be concerned about the 

possibility of indefinite storage of SNF 

because it undermines support for a 

plan for disposal of nuclear waste, 

noting that approval of a new generation 

of NPPs should be contingent on a 

credible plan by which the Federal 

Government meets its responsibilities. 

The Attorneys General of New York, 

Vermont, and Massachusetts believe 

that ‘‘NRC has admitted that its original 

thirty-year time estimation was based on 

no scientific or technical facts, but 

instead on the period of time in which 

it expected a repository to be available. 

* * * The NRC’s reasoning—that 

because no problems significant in 

NRC’s eyes have [yet] occurred * * *, 

no problems will occur no matter how 

long spent fuel remains on reactor 

sites—is antithetical to science, the laws 

of time, and common sense. For 

example, over an indefinite period of 

storage, the probability of a severe 

earthquake increases.’’ They believe that 

the NRC’s alternative approach is 

arbitrary because there is no basis for 

unconditional confidence in the 

indefinite onsite or offsite storage of 

waste. Further, the Attorney General of 

New York argues (in supplemental 

comments) that the Commission’s 

September 2009 votes on the draft final 

rule, which would remove a target date 

from Finding 2 (and which the 

Commission decided to do in September 

2010), support the idea that fuel will 

have to be stored indefinitely.8

Similarly, another commenter asserted 

that it is questionable whether the 

storage of SNF at current sites for 150 

years or more ‘‘is safe and feasible 

merely on the basis of the much more 

limited experience involving SNF 

storage to date, particularly at ISFSIs, 

and at fewer locations with lower 

quantities of SNF, compared to what 

would exist over such a long time span.’’ 

In addition, the Attorneys General 

believe that in proposing to revise the 

generic determination in 10 CFR 

51.23(a) without reference to any time 

frame, the NRC has prematurely and 

inappropriately adopted the alternative 

approach without waiting for public 

comments. Similarly, the Prairie Island 

Indian Community believes that, in the 

absence of a time frame, ‘‘the Waste 

Confidence Rule would be premised on 

the pure speculation that a disposal 

facility will be available at some 

unknown point in the future.’’ NRDC 

believes that the NRC’s alternative 

approach ‘‘is contrary to the NRC’s longstanding policy of [having] at least some 

minimal time limitation on the actions 

of its licensees with respect to active 

institutional controls at nuclear 

facilities,’’ e.g., 10 CFR 61.59(b), which 

prohibits reliance on institutional 

controls for more than 100 years by the 

land owner or custodial agency of a lowlevel waste disposal site. 

NRC Response: In 1990, the 

Commission explained that it had not 

identified a date by which health and 

safety reasons require that a repository 

must be available (55 FR 38504; 

September 18, 1990). The Commission 

noted that in 1984 it had found under 

Finding 3 that SNF would be safely 

managed until sufficient repository 

capacity is available, but that safe 

management would not need to 

continue for more than 30 years beyond 

the expiration of any reactor’s operating 

license because sufficient repository 

capacity was expected to become 

available within those 30 years. The 

Commission also reached the 

conclusion under Finding 4 that SNF 

could be safely stored for at least 30 

years beyond the expiration of the 

operating license. Id. 

In 1990, the Commission considered a 

license renewal term of 30 years in its 

analysis supporting Findings 2 and 4 9

and explained its reasons for believing 

that ‘‘there is ample technical basis for 

confidence that spent fuel can be stored 

safely and without significant 

environmental impact at these reactors 

for at least 100 years’’ (55 FR 38506; 

September 18, 1990). Thus, it is not 

correct to say that ‘‘NRC has admitted 

that its original thirty-year time 

estimation was based on no scientific or 

technical facts.’’ Rather, the NRC’s 

estimate was based on both when it 

expected a repository to be available 

and all the scientific and technical facts 

it discussed under Findings 3 and 4 that 

support a conclusion that SNF can be 

safely managed and stored for at least 

that period of time. In fact, the 

Commission considered a comment 

urging it to find that SNF can be stored 

safely in dry storage casks for 100 years 

(55 FR 38482; September 18, 1990). The 

Commission did not ‘‘dispute a 

conclusion that dry spent fuel storage is 

safe and environmentally acceptable for 

a period of 100 years,’’ but rejected this 

suggestion because it found that safe 

storage without significant 

environmental impact could take place 

for ‘‘at least’’ 30 years beyond the 

licensed life for operation of the reactor, 

and because it supported ‘‘timely 

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disposal of [SNF and HLW] in a geologic 

repository, and by this Decision does 

not intend to support storage of spent 

fuel for an indefinitely long period.’’ Id. 

The fact that the Commission, in 1990 

and now, has confidence that SNF can 

be safely stored for long periods of time 

does not mean, however, that the 

Commission has examined scientific 

and technological evidence supporting 

indefinite storage. The commenters 

supporting alternative Finding 2 did not 

provide evidence supporting indefinite 

storage, nor has the Commission 

adopted findings that support indefinite 

storage. The State of Nevada, in its 2005 

petition for rulemaking, requested, inter 

alia, that the NRC define ‘‘availability’’ 

by presuming that some acceptable 

disposal site would be available at some 

undefined time in the future. In denying 

the petition, the Commission said ‘‘[w]e 

find this approach inconsistent with 

that taken in the 1984 [WCD] because it 

provides neither the basis for assessing 

the degree of assurance that radioactive 

waste can be disposed of safely nor the 

basis for determining when such 

disposal will be available’’ (70 FR 48333; 

August 17, 2005). 

As explained in response to Comment 

1, the Commission’s action in this 

update of the 1990 Waste Confidence 

Decision is to expand its generic 

determination in 10 CFR 51.23(a) by 30 

years, an action that results in no 

significant environmental impacts and 

therefore does not require an EIS. 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. The Commission’s 

removal of a target date from Finding 2 

does not mean that the Commission has 

approved indefinite storage; Finding 4 

still contains a time frame for the length 

of post-licensed life storage. But a time 

frame in Finding 4 does not mean that 

the Commission has to include a target 

date in Finding 2; instead, the 

Commission has adopted a revised 

Finding 2 that expresses the 

Commission’s reasonable assurance that 

repository capacity will be available 

when necessary. This Finding does not 

contemplate indefinite storage of SNF 

and HLW; Finding 4 has not been 

changed, and only considers ‘‘at least 60 

years’’ of storage beyond the licensed 

life for operation, including a license 

renewal period, and the analysis 

supporting Finding 2 considers the time 

needed to construct a repository. 

The Commission has removed the 

target date from Finding 2 because 

recent events have demonstrated that 

the Commission is unable to predict 

with confidence when a successful 

program to construct a repository will 

start. Instead, the Commission has 

reasonable assurance that sufficient 

repository capacity will be available 

when necessary, which means that 

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. As made clear in the 

analysis that supports Finding 2, the 

Commission continues to have 

confidence that a repository can be 

constructed within 25–35 years of a 

Federal decision to do so, which is 

much shorter than the time frame 

considered in revised Finding 4. 

Further, if it becomes clear that a 

repository or some other disposal 

solution will not be available by the end 

of 60 years after licensed life for 

operation, the Commission will revisit 

and reassess its Waste Confidence 

Decision and Rule if a revision has not 

already occurred for other reasons. 

As the Attorneys General, as well as 

other commenters, noted, the proposed 

rule was phrased differently from the 

proposed revision of Finding 2; the 

proposed rule made a generic 

determination of safe storage of SNF 

‘‘until a disposal facility can reasonably 

be expected to be available’’ whereas 

proposed Finding 2 predicted repository 

availability ‘‘within 50–60 years beyond 

the licensed life for operation,’’ and 

proposed Finding 4 made a finding of 

reasonable assurance of safe storage of 

SNF ‘‘for at least 60 years beyond the 

licensed life for operation.’’ 

The Commission did not intend to 

cause confusion by adopting different 

language in the Findings and the rule. 

The basis for the rule is identical to the 

basis for the findings, no matter how the 

rule itself is phrased; the Commission 

has therefore decided to adopt similar 

language for Findings 2 and 4 and the 

rule. As discussed above, the 

Commission has reconsidered Finding 2 

and, in recognition of recent 

developments, has concluded that it 

would be inappropriate to include a 

target date in the Finding. The 

Commission has therefore made a 

conforming change to the rule to 

incorporate the revised language from 

Finding 2. 

Further, as discussed in the proposed 

rule, the Commission has updated the 

rule language to include the time frame 

for safe and environmentally sound 

storage from Finding 4. The final rule 

now limits the generic determination 

regarding safe and environmentally 

sound storage to ‘‘at least 60 years 

beyond the licensed life for operation 

(which may include the term of a 

revised or renewed license).’’ 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 it clear that Finding 4 

does not contemplate indefinite storage 

and to underscore the fact that the 

Commission has confidence that mined 

geologic repository capacity will be 

available when necessary. 

Comment 10: TSEP claims that the 

survey of various international HLW 

disposal programs that the NRC 

provided to review the issue of social 

and political acceptability of a 

repository shows that there can be no 

confidence that the necessary social and 

political conditions exist in the United 

States to provide any assurance that a 

repository can be developed in any 

foreseeable time frame. TSEP also 

believes that the NRC’s survey is 

inaccurate and essentially incomplete 

because it omits the country that is often 

held up as being exemplary for nuclear 

power—France. 

NRC Response: The NRC rejects the 

commenter’s assertion that the NRC’s 

examination of international experience 

shows that there can be no confidence 

that a repository will be developed in 

the United States in any foreseeable 

time frame. The NRC’s discussion of the 

HLW programs of other countries was 

included to show that those countries 

have programmed into their plans 

various methodologies for securing 

social and political acceptance of a 

repository. This has been a trial-anderror process that has led to both 

failures and successes. The processes, 

especially in Finland and Sweden, show 

that this focus on deliberate attempts to 

gain public support can lead to success 

given a sufficiently inclusive process 

and enough time. 

The commenter believes that the 

NRC’s survey is partly inaccurate 

because the NRC incorrectly implies 

that the United Kingdom (UK) ended a 

program for developing a repository for 

HLW and SNF in 1997 when, in fact, the 

program was for disposal of 

intermediate-level waste (ILW). The 

NRC agrees with the commenter that 

one sentence describing the UK program 

is misleading. This is because of a 

typographical error where ‘‘HLW’’ was 

inserted instead of ‘‘ILW’’. This error is 

corrected in this update. 

With respect to the omission of 

France, the NRC did not seek to provide 

an exhaustive survey or complete 

history of all foreign repository 

programs. The NRC examined a number 

of international examples for the 

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purpose of reasonably estimating the 

minimum time needed to ‘‘develop 

* * * societal and political acceptance 

in concert with essential technical, 

safety and security assurances.’’ The 

NRC noted that France was among ten 

nations that have established target 

dates (France expects that its repository 

will commence operation in 2025.), and 

among seven nations, of those ten, that 

plan disposal of reprocessed SNF and 

HLW (73 FR 59558; October 9, 2008). A 

brief examination of the progress of 

France’s waste disposal program 

suggests a time frame that is consistent 

with a range of 25–35 years for 

achieving societal and political 

acceptability of a repository. Initial 

efforts in France in the 1980s failed to 

identify potential repository sites using 

solely technical criteria. Failure of these 

attempts led to the passage of nuclear 

waste legislation that prescribed a 

period of 15 years of research. Reports 

on generic disposal options in clay and 

granite media were prepared and 

reviewed by the safety authorities in 

2005. In 2006, conclusions from the 

public debate on disposal options, held 

in 2005, were published. Later that year, 

the French Parliament passed new 

legislation designating a single site for 

deep geologic disposal of intermediate 

and HLW. This facility, to be located in 

the Bure region of northeastern France, 

is scheduled to open in 2025, some 34 

years after passage of the original 

Nuclear Waste Law of 1991. 

Comment 11: Several commenters 

believe that the history of the U.S. 

repository program demonstrates that 

there should be no assurance that the 

political and social acceptance needed 

to support development of a repository 

in the time frame envisioned in Finding 

2 will be realized. 

NRC Response: The Commission 

acknowledges the difficulties that the 

U.S. HLW program has encountered 

over the years from the failed attempt to 

locate a repository in a salt mine in 

Lyons, Kansas, through the strong and 

continuous opposition to the proposed 

repository at YM. Nevertheless, the 

commenters overlook a number of key 

developments that support the 

Commission’s confidence that a 

repository will be available when 

necessary. 

First, the comments assume that any 

repository program must start over from 

the beginning. But any new repository 

program would build upon the lessons 

learned from the YM and other 

repository programs. Other countries are 

working toward development of a 

repository, and some have settled upon 

a process that is designed to deal with 

many of the societal and political issues 

that have delayed the U.S. program. See 

Finding 2 below. 

Second, the Secretary of Energy 

established the Blue Ribbon 

Commission on America’s Nuclear 

Future. Department of Energy, Blue 

Ribbon Commission on America’s 

Nuclear Future, Advisory Committee 

Charter (2010), available at http:// 

brc.gov/pdfFiles/BRC_Charter.pdf. The 

Blue Ribbon Commission ‘‘will provide 

advice, evaluate alternatives, and make 

recommendations for a new plan to 

address’’ a number of issues associated 

with the back-end of the nuclear fuel 

cycle. Id. Specifically, the Blue Ribbon 

Commission will evaluate the existing 

fuel cycle technologies and research and 

development cycles; look at options for 

the safe storage of SNF while final 

disposal pathways are prepared; look at 

options for the permanent disposal of 

SNF and HLW; evaluate options to make 

legal and commercial arrangements for 

the management of SNF and HLW; 

prepare flexible, adaptive, and 

responsive options for decision-making 

processes related to the disposal and 

management of SNF and HLW; look at 

options to ensure that any decisions are 

open and transparent, with broad 

participation; evaluate the possible need 

for additional legislation or 

amendments to existing laws; and any 

additional issues that the Secretary of 

Energy deems appropriate. Id. 

The NWPA still mandates by law a 

national repository program, and 

decades of scientific studies support the 

use of a repository for disposal of HLW 

and SNF. Federal responsibility for 

siting and building a repository remains 

controlling national policy. Finding 2 is 

a prediction that a repository will be 

available when the societal and political 

obstacles to a repository are overcome 

and sufficient resources are dedicated to 

the siting, licensing, and construction of 

a repository. It necessarily follows from 

the Waste Confidence Decision 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. If this 

were not the case, the Commission 

would be unable to express its 

reasonable assurance in the continued 

safe, secure, and environmentally sound 

storage of SNF and HLW. 

Finally, the Commission reiterates 

Finding 1, which states that the 

Commission finds reasonable assurance 

that safe disposal of HLW and SNF in 

a mined geologic repository is 

technically feasible. This finding has 

remained unchanged since 1984. The 

more difficult problem challenging a 

repository program is achieving political 

and social acceptance, but the 

Commission has confidence that this 

problem can be solved. By applying the 

lessons learned in the YM program and 

in the different methodologies for 

achieving acceptance used in 

international HLW programs, the 

Commission remains confident that 

these issues impeding the construction 

of a repository can be resolved. 

Comment 12: One commenter worried 

that ‘‘a decision in favor of this proposed 

rule change could prejudice a licensing 

decision in favor of the Yucca Mountain 

project simply because it would 

announce confidence in a waste site and 

that is the only one there.’’ The 

commenter also fears that this 

rulemaking could bias a decision to lift 

or eliminate the statutory capacity limit 

on YM, which would be necessary for 

the repository to accept SNF from new 

reactors. Further, the commenter 

believes that if the YM project fails, 

there will be no basis for confidence 

that a waste site will be available in the 

future. 

NRC Response: The Commission’s 

reaffirmation of Finding 1—that 

disposal of HLW and SNF is technically 

feasible—and its revision of Finding 2, 

which states confidence that repository 

capacity will be available when 

necessary, are not tied to any particular 

site. In fact, the Commission’s proposal 

assumed that YM would not go forward 

and become available as a repository. 

Moreover, the Waste Confidence 

Decision and Rule have no legal effect 

in the YM licensing proceeding. See 

Nevada v. NRC, No. 05–1350, 199 Fed. 

Appx. 1 (DC Cir. 2006). Therefore, the 

NRC does not believe that adopting 

these findings will prejudice a licensing 

decision on Yucca Mountain. In a 2008 

report DOE predicted that by 2010 SNF 

would exceed the 70,000 metric tons of 

heavy metal (MTHM) statutory limit for 

YM, and that if all existing reactors 

continue to operate for a total of 60 

years through license renewals, SNF 

will exceed 130,000 MTHM. See The 

Report to the President and the 

Congress by the Secretary of Energy on 

the Need for a Second Repository, DOE/ 

RW–0595, December, 2008. Thus, even 

if YM were to obtain NRC approval and 

be built, the amount of SNF from 

current reactors alone would require a 

change in the statutory limit or a second 

repository. Finally, as stated above, the 

proposed revision of Finding 2 assumed 

that YM would not go forward. The 

NRC’s basis for continued confidence 

that a repository will be available when 

necessary is explained in its response to 

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81050 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

Comment 11 and its discussion of 

Finding 2. 

Comment 13: The State of Nevada 

favored the Commission’s alternative 

approach to Finding 2, but also 

suggested that 10 CFR 51.23(a) be 

reworded as follows: 

The Commission has made a generic 

determination that there is reasonable 

assurance all licensed reactor spent fuel will 

be removed from storage sites to some 

acceptable disposal site well before storage 

causes any significant safety or 

environmental impacts. This generic finding 

does not apply to a reactor or storage site if 

the Commission has found, in the 10 CFR 

Part 50, Part 52, Part 54 or Part 72 specific 

licensing proceeding, that storage of spent 

fuel during the term requested in the license 

application will cause significant safety or 

environmental impacts. 

Nevada explains that the last sentence 

is added to be consistent with 10 CFR 

51.23(c), which provides that 10 CFR 

51.23(a) does not alter any requirement 

to consider environmental impacts 

during the requested license terms in 

specific reactor or spent fuel storage 

license cases. Nevada states that ‘‘NRC 

should not prejudge this review of 

potential safety or environmental 

impacts from storage during the 

requested license term in any pending 

or future licensing proceeding.’’ Nevada 

also states that in the event the 

Commission adopts Finding 2 as 

proposed, ‘‘it needs to clear up the 

ambiguity inherent in the reference to 

the 50–60 year time period. Presumably 

the Commission means it expects a 

repository within 60 years.’’ 

NRC Response: For the reasons 

explained in response to Comment 9, 

the Commission has decided to adopt a 

revised Finding 2 that states its 

confidence in the availability of a 

repository ‘‘when necessary.’’ 10 CFR 

51.23(c) points out that the generic 

determination in 10 CFR 51.23(a) only 

applies to the period following the term 

of the reactor operating license, reactor 

combined license or amendment, or 

initial ISFSI license or amendment in 

proceedings held under 10 CFR Parts 

50, 52, 54 and 72. Nevada is concerned 

that in a case where the environmental 

impacts during the term of the license 

were judged to be significant, there 

would be reason to doubt the 

applicability of a generic determination 

that the impacts occurring after the 

requested license term would not be 

significant and so has proposed 

inclusion of a second sentence in 10 

CFR 51.23(a). The Commission already 

has a rule, 10 CFR 2.335, that allows a 

party to an adjudicatory proceeding to 

seek a waiver or exception to a rule 

where its application would not serve 

the purposes for which the rule was 

adopted. Thus, the Commission 

declines to adopt this additional 

sentence. 

Issue 6: Whether the Commission Has 

an Adequate Basis To Reaffirm Finding 

3 

Comment 14: One commenter stated 

that the NRC appears to ignore the 

reality that available legal and corporate 

strategies exist that can provide for the 

transfer of NPPs and ISFSIs, and the 

SNF itself, to unfunded separate limited 

liability companies that can easily 

abandon SNF at existing sites once the 

economic value of the generating plants 

is exhausted. 

NRC Response: The transfer of a 

license for a NPP is governed by 10 CFR 

50.80. An applicant for transfer of its 

license must provide the same 

information on financial and technical 

qualifications for the proposed 

transferee as is required for the initial 

license. Therefore, the entity intended 

to receive the license must demonstrate 

its ability to meet the financial 

obligations of the license. Both general 

and specifically licensed ISFSIs are 

required to demonstrate financial 

qualifications before they are issued a 

license. The requirements for general 

licensees are in 10 CFR part 50, while 

the financial qualifications for 

specifically licensed ISFSIs are in 10 

CFR part 72. 

A general license is issued to store 

spent fuel at an ISFSI ‘‘[a]t power reactor 

sites to persons authorized to possess or 

operate nuclear power reactors under 10 

CFR part 50 or 10 CFR part 52.’’ 10 CFR 

72.210. Under 10 CFR 50.54(bb), NPP 

licensees must have a program to 

manage and provide funding for the 

management of spent fuel following 

permanent cessation of operations until 

title to and possession of the fuel is 

transferred to the Secretary of Energy. 

As required in 10 CFR 72.30(c), all 

general licensees must provide financial 

assurance for sufficient funds to 

decommission the ISFSI. In addition, 

general licensees who have 

decommissioned their site, with the 

exception of the ISFSI and support 

facilities, must demonstrate that they 

have sufficient funds to decommission 

the ISFSI after the spent fuel is 

permanently transported offsite. 

Applicants for a specific license to 

store spent fuel under 10 CFR part 72 

are required to demonstrate their 

financial qualifications. See 10 CFR 

72.22(e). To meet the financial 

requirements, the applicant must show 

that it either possesses the necessary 

funds or has reasonable assurance of 

obtaining the necessary funds to cover 

ISFSI construction, operating, and 

decommissioning costs. In addition, a 

specific licensee that wants to transfer 

its license must submit an application 

that demonstrates that the proposed 

transferee meets the same financial 

qualifications as the initial license. See 

10 CFR 72.50. Most specific licensees 

are financially backed by a utility with 

either an operating or shutdown NPP 

and are required under 10 CFR 

50.54(bb) to have sufficient resources for 

spent fuel management after cessation of 

operations. Other specific licensees, not 

located at a NPP site, that are currently 

storing spent fuel are backed either by 

a large corporation, such as General 

Electric (the GE Morris ISFSI), or by the 

DOE, in the case of the Three Mile 

Island Unit 2, and Ft. Saint Vrain 

ISFSIs. 

Issue 7: Whether the Commission Has 

an Adequate Basis for Finding That SNF 

Generated in Any Reactor Can Be Stored 

Safely and Securely and Without 

Significant Environmental Impact for at 

Least 60 Years (Finding 4) 

Comment 15: Several commenters 

posited that the NRC does not have an 

adequate technical basis for finding 

reasonable assurance that SNF can be 

stored safely and without significant 

environmental impact because they 

believe that high-density spent fuel 

storage pools (SFPs) are vulnerable to 

catastrophic fires that may be caused by 

accidents or intentional attacks. These 

commenters do not believe that the NRC 

has properly assessed this risk. TSEP 

submitted a report, ‘‘Environmental 

Impacts of Storing Spent Nuclear Fuel 

and High-Level Waste from Commercial 

Nuclear Reactors: A Critique of NRC’s 

Waste Confidence Decision and 

Environmental Impact Determination,’’ 

prepared by Dr. Gordon R. Thompson, 

the Executive Director of the Institute 

for Resource and Security Studies 

(Thompson Report), which describes the 

potential risks associated with a fire in 

a SFP following a loss of water from the 

pool. The Thompson Report takes the 

view that the NRC documents published 

on the risk of SFP fires are inadequate 

and objects to the fact that some of the 

more recent documents rely on ‘‘secret 

studies,’’ which cannot be verified by 

the public. The Attorney General of 

California requests that the NRC 

reconsider the information on the risks 

of SFP fires that California and 

Massachusetts submitted with their 

rulemaking petitions, which the NRC 

denied. See The Attorney General of 

Commonwealth of Massachusetts, The 

Attorney General of California; Denial of 

Petitions for Rulemaking (73 FR 46204; 

August 8, 2008) (MA and CA Petitions). 

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10NRC’s reexamination of safety and security 

issues included consideration of reports issued by 

Sandia National Laboratories and the National 

Academy of Sciences, which are classified, SGI, or 

official-use-only security-related information, and 

thus cannot be released to the public; public 

versions of these reports are available. See response 

to comment 2 above. 

Dr. Thompson also questioned the 

analyses and assumptions that support 

the staff’s conclusions regarding 

terrorist attacks on ISFSIs. Dr. 

Thompson defined four types of 

potential attack scenarios and noted that 

the staff’s previous analyses, specifically 

the Diablo Canyon EA, focus only on 

Type III scenarios and ignore the far less 

dramatic, but far more effective, Type IV 

releases. Thompson Report at 47–48. 

Type I releases are those caused by the 

vaporization of the ISFSI by a nuclear 

explosion and are not considered by Dr. 

Thompson in his analysis. Thompson 

Report at Table 7–8. Type II releases 

deal with an attack by aerial bombing, 

artillery, rockets, etc., resulting in 

rupture of the ISFSI and large dispersal 

of the contents of the cask. Id. Type III 

events are similar to Type II, but involve 

small dispersal of the contents of the 

cask, and are caused by vehicle bombs, 

impact by commercial aircraft, or 

perforation by a shaped charge. Id. 

Finally, Type IV events are caused by 

missiles with tandem warheads, closeup use of shaped charges and 

incendiary devices, or removal of the 

overpack lid. Id. This type of attack 

results in scattering and plume 

formation similar to that of a Type III 

event, but the release of material far 

exceeds that of a Type III event. Id. Dr. 

Thompson claims that the staff’s 

analysis does not consider the 

environmental impacts of a Type IV 

attack on an ISFSI. Id. at 48. 

NRC Response: The NRC’s 1990 

Waste Confidence Decision described 

the studies of the catastrophic loss of 

reactor SFP water possibly resulting in 

a fuel fire in a dry pool that the NRC 

staff had undertaken prior to that time 

(55 FR 38511; September 18, 1990). The 

proposed update further details the 

considerable work that the NRC has 

done in evaluating the safety of SFP 

storage, including the scenario of a SFP 

fire, and notes that following the 

terrorist attacks of September 11, 2001, 

the NRC undertook a complete 

reexamination of SFP safety and 

security issues (73 FR 59564–59565; 

October 9, 2008).10 The proposed 

update discusses, in particular, the 

Commission’s careful consideration of 

this issue in responding to the MA and 

CA Petitions. The petitions asserted that 

spent fuel stored in high-density SFPs is 

more vulnerable to a zirconium fire than 

the NRC had concluded in the GEIS for 

renewal of NPP licenses. The petitioner 

raised the possibility of a successful 

terrorist attack as increasing the 

probability of a SFP zirconium fire. The 

petitions claimed that they were 

proffering ‘‘new and significant 

information’’ on this issue, including a 

study by Dr. Thompson, see Risks and 

Risk-Reducing Options Associated with 

Pool Storage of Spent Nuclear Fuel at 

the Pilgrim and Vermont Yankee 

Nuclear Power Plants, May 25, 2006 

(Thompson 2006 Report), and a report 

by the National Academies Committee 

on the Safety and Security of 

Commercial Spent Nuclear Fuel Storage, 

see Safety and Security of Commercial 

Spent Nuclear Fuel Storage (National 

Academies Press: 2006) (NAS Report). 

The Commission considered all of 

this information and concluded that 

‘‘[g]iven the physical robustness of SFPs, 

the physical security measures, and SFP 

mitigation measures, and based upon 

NRC site evaluations of every SFP in the 

United States * * * the risk of an SFP 

zirconium fire, whether caused by an 

accident or a terrorist attack, is very 

low’’ (73 FR 46208; October 9, 2008). 

Later, the United States Court of 

Appeals for the Second Circuit rejected 

a challenge to the Commission’s denial 

of the CA and MA petitions. New York 

v. NRC, 589 F.3d 551 (2d Cir. 2009). The 

court said that the ‘‘relevant studies 

cited by the NRC in this case constitute 

a sufficient ‘basis in fact’ for its 

conclusion that the overall risk is low.’’ 

Id. at 555. 

The commenters are dissatisfied with 

the NRC’s analysis of this issue, but the 

only new information they have 

provided is Dr. Thompson’s 2009 

Report. The NRC has reviewed the 2009 

Report and has found no information 

not previously considered by the NRC. 

The Attorney General of California 

contends that the NRC should have 

considered the information supplied by 

the petitioners with the MA and CA 

Petition. The NRC did consider this 

information and explained that the 

information was neither new nor 

significant and would not lead to an 

environmental impact finding different 

from that set forth in the GEIS for 

license renewal. Dr. Thompson’s 

contention that the NRC did not 

consider credible threats to ISFSIs that 

would cause significant environmental 

impacts has already been addressed by 

the Commission in Pacific Gas and 

Electric Co. (Diablo Canyon 

Independent Spent Fuel Storage 

Installation), 67 NRC 1, CLI–08–01 

(2008). In that case, the San Luis Obispo 

Mothers for Peace submitted an affidavit 

and report by Dr. Thompson, which 

argued that the NRC staff should have 

considered, but failed to consider, 

‘‘scenarios with much larger releases of 

radiation [that] are also plausible and 

should have been considered. * * * 

[for] example [a scenario] * * * where 

the penetrating device is accompanied 

by an incendiary component that ignites 

the zirconium cladding of the spent fuel 

inside the storage cask, causing a much 

larger release of radioactive material 

than posited in scenarios where the 

cases sustain minimal damage.’’ Id. at 

19. The Commission considered this 

argument and found that ‘‘[a]djudicating 

alternate terrorist scenarios is 

impracticable. The range of conceivable 

(albeit highly unlikely) terrorist 

scenarios is essentially limitless, 

confined only by the limits of human 

ingenuity.’’ Id. at 20. Further, the 

Commission found that the staff’s 

approach to its terrorism analysis, 

‘‘grounded in the NRC Staff’s access to 

classified threat assessment information, 

is reasonable on its face.’’ Id. In his 

comment, Dr. Thompson attempts to 

revisit the Diablo Canyon proceeding by 

claiming that ‘‘the Staff limited its 

examination to Type III releases.’’ 

Thompson Report at 48. Not only has 

this issue already been addressed by the 

Commission, but some of the specifics 

of Dr. Thompson’s ‘‘Type IV’’ releases 

are discussed and dismissed by the 

Commission. Thompson Report Table 

7–8; Diablo Canyon at 19–20. 

Comment 16: A number of 

commenters urged the Commission to 

consider the increasing frequency of 

spent fuel pool leaks as evidence calling 

into question the NRC’s confidence in 

the safety of SNF storage in the normal 

operation of spent fuel pools. Comments 

submitted by the Attorneys General of 

the States of New York and Vermont, a 

supplemental comment from the 

Attorney General of New York, and the 

Commonwealth of Massachusetts 

described leaks of tritium at reactor sites 

around the country. They believe that 

increased onsite storage increases the 

opportunity for human error resulting in 

unauthorized releases. They are 

concerned about the lack of monitoring 

requirements or guidelines for these 

spent fuel leaks. 

NRC Response: The NRC’s proposed 

update of the Waste Confidence 

Decision acknowledged incidents of 

groundwater contamination originating 

from spent fuel pool leaks. The Liquid 

Radioactive Releases Lessons Learned 

Task Force, created in response to these 

incidents, reported that near-term health 

impacts resulting from the leaking spent 

fuel pools that the NRC had examined 

were negligible but also that measures 

should be taken to avoid leaks in the 

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81052 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

future. The Task Force provided 26 

specific recommendations for 

improvements to The NRC’s regulatory 

programs regarding unplanned 

radioactive liquid releases. See Report 

Nos. 05000003/2007010 and 05000247/ 

2007010, May 13, 2008 (ADAMS 

Accession Number ML081340425), as 

well as ‘‘Liquid Release Task Force 

Recommendations Implementation 

Status as of February 26, 2008,’’ 

(ADAMS Accession Number 

ML073230982). 

The NRC has also revised several 

guidance documents as well as an 

Inspection Procedure to address issues 

associated with leaking spent fuel pools. 

The NRC will continue to follow this 

issue and the NRC’s regulatory oversight 

will continue to ensure safety and 

appropriate environmental protection. 

Thus, the Commission remains 

confident that storage of SNF in pools 

will not have any significant 

environmental impacts. 

Comment 17: A number of 

commenters expressed the view that the 

NRC’s updates to the Waste Confidence 

Decision and Rule do not comply with 

the holding of the Ninth Circuit Court 

of Appeals in San Luis Obispo Mothers 

for Peace v. NRC, 449 F. 3d 1016 (9th 

Cir. 2006), cert. denied, 127 S. Ct. 1124 

(2007), that environmental analysis 

under NEPA requires an examination of 

the environmental impacts that would 

result from an act of terrorism against an 

ISFSI because an attack is reasonably 

foreseeable and not remote and 

speculative as the NRC had argued 

before the court. 

NRC Response: Finding 4 considers 

the potential risks of accidents and acts 

of sabotage at spent fuel storage 

facilities. In 1984 and 1990, the NRC 

provided some discussion of the reasons 

why it believed that the possibility of a 

major accident or sabotage with offsite 

radiological impacts at a spent fuel 

storage facility was extremely remote. In 

the proposed update to the Waste 

Confidence Decision, the Commission 

gave considerable attention to the issue 

of terrorism and spent fuel management 

(See 73 FR 59567–59568; October 9, 

2008). The Commission concluded that 

‘‘[t]oday spent fuel is better protected 

than ever. The results of security 

assessments, existing security 

regulations, and the additional 

protective and mitigative measures 

imposed since September 11, 2001, 

provide high assurance that the spent 

fuel in both spent fuel pools and in dry 

storage casks will be adequately 

protected.’’ Id. 

Some commenters believe that the 

NRC’s environmental analysis of the 

security of spent fuel storage facilities is 

deficient because it does not include 

consideration of the environmental 

impacts of a successful terrorist attack. 

The commenters recognize that the 

Commission continues to disagree with 

the Ninth Circuit and believes that, 

outside of the Ninth Circuit, the 

environmental effects of a terrorist 

attack do not need to be considered in 

its NEPA analyses. Amergen Energy Co., 

LLC (Oyster Creek Nuclear Generating 

Station), CLI–07–08, 65 NRC 124 (2007). 

Recently, the Third Circuit U.S. Court of 

Appeals upheld the NRC’s view that 

terrorist attacks are too far removed 

from the natural or expected 

consequences of agency action to 

require an environmental impact 

analysis. New Jersey Department of 

Environmental Protection v. U.S. 

Nuclear Regulatory Commission, 561 

F.3d 132 (3d Cir. 2009). The Third 

Circuit stated: 

In holding that there is no ‘‘reasonably 

close causal relationship’’ between a 

relicensing proceeding and the 

environmental effects of an aircraft attack on 

the licensed facility, we depart from the 

reasoning of the Ninth Circuit * * *. The 

Mothers for Peace court held that, given ‘‘the 

policy goals of NEPA and the rule of 

reasonableness that governs its application, 

the possibility of terrorist attack is not so 

‘remote and highly speculative’ as to be 

beyond NEPA’s requirements.’’ * * *. We 

note, initially, that Mothers for Peace is 

distinguishable on the ground that it 

involved the proposed construction of a new 

facility—a change to the physical 

environment arguably with a closer causal 

relationship to a potential terrorist attack 

than the mere relicensing of an existing 

facility. .... More centrally, however, we 

disagree with the rejection of the ‘reasonably 

close causal relationship’ test set forth by the 

Supreme Court and hold that this standard 

remains the law in this Circuit. We also note 

that no other circuit has required a NEPA 

analysis of the environmental impact of a 

hypothetical terrorist attack. Id. at 142 

(citations and footnote omitted). 

But even though, outside of the Ninth 

Circuit, the NRC continues to adhere to 

its traditional view that the 

environmental impacts of a terrorist 

attack do not need to be considered 

outside of the Ninth Circuit, the 

environmental assessment for this 

update and rule amendment includes a 

discussion of terrorism in the discussion 

of the revision to Finding 4 that the NRC 

believes satisfies the Ninth Circuit’s 

holding in Mothers for Peace v. NRC, as 

the decision explicitly left to agency 

discretion the precise manner in which 

the NRC undertakes a NEPA-terrorism 

review. See Pacific Gas and Electric Co. 

(Diablo Canyon Power Plant 

Independent Spent Fuel Storage 

Installation), CLI–08–01, 67 NRC 1 

(2008), petition for judicial review 

pending, No. 09–1268 (9th Cir.). 

Comment 18: TSEP and the Attorney 

General of New York (in a supplemental 

comment) point out that the NRC has 

treated the risk of a catastrophic fuel fire 

caused by an attack or an accident that 

leads to partial or complete drainage of 

a high-density SFP as a site-specific 

issue, imposing orders requiring NPPs 

to enhance security and improve their 

capabilities to respond to terrorist 

attack. Some of these orders required 

licensees to develop specific guidance 

and strategies to maintain or restore 

spent fuel pool cooling capabilities (See 

73 FR 59567; October 9, 2008). TSEP 

and the Attorney General believe that 

this demonstrates that the NRC 

considers the risk of a pool fire to be 

specific to each nuclear plant and that 

site-specific measures to reduce these 

risks to an acceptable level must be 

taken at each plant. TSEP and the 

Attorney General believe that this is 

inconsistent with the NRC’s reliance on 

its generic determination in 10 CFR 

51.23(a) to deny hearing requests 

regarding the safety and environmental 

impacts of spent fuel storage, on 

contentions that are within the scope of 

the generic determination, in individual 

licensing cases. Because the NRC has 

(allegedly) acknowledged that its 

findings regarding the safety and 

security of spent fuel storage are sitespecific and not generic in nature, TSEP 

and the Attorney General believe that 

the NRC should withdraw its generic 

finding. 

NRC Response: After the terrorist 

attacks of September 11, 2001, the 

Commission issued orders to NPP and 

ISFSI licensees requiring enhanced 

protective measures under its Atomic 

Energy Act authority to ‘‘establish by 

rule, regulation, or order, such 

standards and instructions to govern the 

possession and use of [nuclear 

materials] as the Commission may deem 

necessary or desirable to promote the 

common defense and security or to 

protect health or to minimize danger to 

life or property. * * *’’ 42 U.S.C. 2201 

(2006). These orders were site-specific 

and required each licensee to buttress 

its security arrangements to achieve the 

revised standards set by the 

Commission. Additionally, the orders 

were used as an expedient method to 

impose new security requirements on 

licensees. Subsequently, some of these 

new requirements and other additional 

requirements were codified in 

rulemaking (See 72 FR 56287; October 

3, 2007, 73 FR 19443; April 10, 2008, 73 

FR 51378; September 3, 2008, 73 FR 

63546; October 24, 2008; 74 FR 13926; 

March 27, 2009, 74 FR 17115; April 14, 

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2009). The NRC’s determination that 

SNF can be stored safely and without 

significant environmental impacts 

beyond the licensed life for operation of 

the reactor for at least 60 years is a 

generic determination that satisfies both 

the NRC’s NEPA responsibilities and 

evaluates the safety of the ongoing 

storage of SNF and HLW. The 

determination considers reasonably 

foreseeable risks that could threaten the 

safety of SNF storage and the 

environmental impacts of these risks. 

There is no inconsistency between the 

NRC’s orders enhancing security at each 

plant and its generic determination that 

SNF can be safely stored because the 

requirements imposed by the orders and 

rulemakings help to ensure the safety 

and security of the SNF. As the Third 

Circuit said in its decision upholding 

the NRC’s determination that NEPA did 

not require that the NRC consider the 

environmental effects of an aircraft 

attack on a licensed facility, the fact that 

the NRC does not have a particular 

obligation under NEPA does not mean 

that the NRC ‘‘has no obligation to 

consider how to strengthen nuclear 

facilities to prevent and minimize the 

effects of a terrorist attack; indeed, the 

AEA gives broad discretion over the 

safety and security of nuclear facilities.’’ 

New Jersey Department of 

Environmental Protection v. U.S. 

Nuclear Regulatory Commission, 561 

F.3d 132, 142 fn 9 (3d Cir. 2009). As 

discussed in the Response to Comment 

17, the NRC’s analysis satisfies the 

Ninth Circuit’s holding in San Luis 

Obispo Mothers for Peace. 

Comment 19: A commenter stated that 

the NRC’s implication that aboveground storage may be safely conducted 

for 60 years beyond the operating 

license of a reactor does not seem to 

account for probably rapidly changing 

climactic conditions in the next few 

decades. This is very critical since most 

reactor sites are located near large 

bodies of water. 

NRC Response: The earliest impact to 

spent fuel storage casks from climate 

change is not from submergence of 

structures by rising ocean levels, but 

rather from an increased risk of 

potential flooding from storm surge and 

high winds caused by extreme weather 

events. Current NRC regulations for 

design characteristics specifically 

address severe weather events. Before 

certification or licensing of a dry storage 

cask or ISFSI, the NRC requires that the 

vendor or licensee include design 

parameters on the ability of the storage 

and spent fuel storage facilities to 

withstand severe weather conditions 

such as hurricanes, tornadoes, and 

floods. 

The NRC’s regulations, 10 CFR 72.236 

(for casks) and 72.122 (for facilities), 

require that applications for a Certificate 

of Compliance (COC) for a dry storage 

cask and a license to store spent fuel in 

an ISFSI evaluate the effects of a design 

basis flood on the facility. The 

evaluation of a design basis flood 

includes both static pressure from 

standing water and the force from a 

uniform flood-current. In addition, all 

storage casks approved for use with the 

general license provisions in 10 CFR 

part 72 have been evaluated for static 

pressure and uniform flood-current in 

the same manner as those for a specific 

licensee. The NRC has published 

regulatory guidance that describes 

acceptable approaches to assessing these 

impacts; further, the staff is addressing 

climate change in updates to its 

guidance. Based on the NRC’s activities 

related to climate change, and the 

relatively slow rate of this change, the 

NRC is confident that any regulatory 

action that may be necessary will be 

taken in a timely manner to ensure the 

safety of all nuclear facilities regulated 

by the NRC. 

Based on the models discussed in the 

NAS study (Potential Impact of Climate 

Change on U.S. Transportation: Special 

Report 290), none of the U.S. NPPs 

(operational or decommissioned) will be 

under water or threatened by water 

levels by 2050. The climate change 

models used in the NAS study are based 

on work by the Intergovernmental Panel 

on Climate Change. Climate changes 

over the next century are expected to 

result in a sea-level rise of 

approximately 0.8 meters; see J.A. 

Church et al., Climate Change 2001: 

Impacts, Adaptation, and Vulnerability, 

Intergovernmental Panel on Climate 

Change, 642 (2001). Recently, the 

Intergovernmental Panel on Climate 

Change published a report confirming 

an accelerated sea-level rise in North 

America and concluding there will be 

further accelerated sea-level rise; the 

report found that the global mean sealevel is projected to rise by 0.35 ± 0.12 

meters from the 1980 to 1999 period to 

the 2090 to 2099 period (http:// 

www.ipcc.ch/ipccreports/ar4-wg2.htm). 

This conclusion is supported by the 

findings of the U.S. Global Change 

Research Program report published in 

2009 (http:// 

downloads.globalchange.gov/ 

usimpacts/pdfs/climate-impactsreport.pdf). Based on these reports, sealevel rise is controlled by complex 

processes, and estimated to rise less 

than 1 meter by 2100. In addition to sealevel rise, NRC facilities may be affected 

by increased storm surges, erosion, 

shoreline retreat, and inland flooding. 

Impacts to coastal areas may be further 

exacerbated by the land subsiding, as is 

currently observed in some central Gulf 

Coast areas. NRC facilities, including 

ISFSIs, are designed to be robust. The 

facilities are evaluated to ensure that 

performance of their safety systems, 

structures, and components is 

maintained during flooding events, and 

are monitored when in use. The lowest 

grade above sea-level of concern for an 

NRC licensed facility is currently about 

4.3 m (14 feet). In the event of climate 

change induced sea-level rise the NRC 

regulations require licensees to 

implement corrective actions to identify 

and correct or mitigate conditions 

adverse to safety. 

Comment 20: A commenter stated that 

two events—the July 16, 2007, 

earthquake in Niigata Province, Japan, 

and an April 2008 earthquake in 

Michigan—and an August 2008 study, 

which discusses a newly-discovered 

fault line that could significantly 

increase estimates of the probability of 

an earthquake in New York City, 

undermine confidence in the safety of 

spent fuel storage. Further, the 

commenter believes that given the 

differing seismology of various plants 

around the country, a generic 

determination that SNF can be stored 

safely without significant environmental 

impacts for long periods of time is 

inappropriate. 

NRC Response: 

Japan Earthquake of July 2007: 

Staff reviewed a report on the 2007 

Japan Earthquake by the International 

Atomic Energy Agency (IAEA) in 

December 2008. See 2d Follow-up IAEA 

Mission in Relation to the Findings and 

Lessons Learned from the 16 July 2007 

Earthquake at Kashiwazaki-Kariwa NPP, 

The Niigataken Chuetsu-oki 

Earthquake, Tokyo and KashiwazakiKariwa NPP, Japan, 1–5 December 2008. 

The report was the third in a series 

issued by an IAEA-led team of 

international experts that completed the 

mission in December 2008. According to 

this report, ‘‘the safe performance of the 

Kashiwazaki-Kariwa nuclear power 

plant during and after the earthquake 

that hit Japan’s Niigata and Nagano 

prefectures on 16 July 2007 has been 

confirmed.’’ The head of the IAEA’s 

Division of Installation Safety, and the 

leader of the mission, also stated that 

‘‘[t]he four reactors in operation at the 

time in the seven unit complex—the 

world’s largest nuclear power plant— 

shut down safely and there was a very 

small radioactive release well below 

public health and environmental safety 

limits.’’ The lessons learned from the 

results of the plant integrity evaluation 

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process will be reviewed by the NRC 

and may be incorporated, as necessary, 

to improve the approaches for design 

and evaluation criteria currently used 

for NPPs in the United States. 

The Michigan Earthquake in April 

2008: 

NRC Staff reviewed NRC’s 

Preliminary Notification of Event or 

Unusual Occurrence, PNO–III–08– 

004A, April 18, 2008 (ADAMS 

Accession Number ML081090639) on 

the April 2008 earthquake in Michigan. 

This Notification revealed that licensee 

personnel and NRC inspectors at the 

D.C. Cook and Palisades NPPs, both of 

which experienced onsite seismic 

activity, conducted independent 

equipment walkdowns after the initial 

earthquake and aftershock, and 

identified no issues. In addition, 

licensee personnel and NRC inspectors 

conducted equipment walkdowns at all 

operating power reactors that felt 

seismic activity and also identified no 

issues. The NRC staff concluded that the 

earthquake will have little overall 

influence on the postulated seismic 

hazard estimates at ISFSIs located in the 

CEUS. 

The seismic design requirements for 

spent fuel pools are the same as for 

NPPs; these events do not undermine 

confidence in the safety of storage of 

spent fuel in spent fuel pools. With 

respect to dry storage, under 10 CFR 

72.210, a general license for the storage 

of spent fuel in an ISFSI is granted to 

all holders of a license issued under 10 

CFR Part 50 to possess or operate a NPP. 

The conditions of this general license 

are given in 10 CFR 72.212. The 

conditions of the license require a 

general licensee to perform written 

evaluations prior to use that establish 

that: (a) Conditions set forth in the 

Certificate of Compliance (CoC) have 

been met; (b) cask storage pads and 

areas have been designed to adequately 

support the static and dynamic loads of 

the stored casks, considering potential 

amplification of earthquakes through 

soil-structure interaction, and soil 

liquefaction potential or other soil 

instability due to vibratory ground 

motion; and (c) the requirements of 10 

CFR 72.104 (dose limitations for normal 

operation and anticipated occurrences) 

have been met. Additionally, the ISFSI 

foundation analysis must include soilstructure interaction and must address 

liquefaction potential. See 10 CFR 

72.212(b)(2). Further, 10 CFR 

72.212(b)(3) requires that a general 

licensee ‘‘[r]eview the Safety Analysis 

Report (SAR) referenced in the [CoC] 

and the related NRC Safety Evaluation 

Report, prior to use of the general 

license, to determine whether or not the 

reactor site parameters, including 

analyses of earthquake intensity and 

tornado missiles, are enveloped by the 

cask design bases considered in these 

reports.’’ 

In the continental United States, 

geographic areas located east of the 

Rocky Mountain Front (east of 

approximately 104 degrees west 

longitude) are generally known as 

‘‘CEUS.’’ For NPP sites that have been 

evaluated under the criteria of 10 CFR 

part 100, appendix A, the Design 

Earthquake must be equivalent to the 

safe shutdown earthquake for the NPP, 

but in no case less than 0.10g. For the 

existing NPPs in the United States, the 

design basis response spectra used for 

the design of dry cask storage systems 

are based on the response spectrum 

defined in NRC Regulatory Guide 1.60, 

‘‘Design Response Spectra for Seismic 

Design of Nuclear Power Plants,’’ Rev. 1, 

December 1973, anchored at a Peak 

Ground Acceleration of 0.3g in the 

horizontal direction and 0.2g in the 

vertical direction. 

As a condition for using a general 

license to operate an ISFSI, licensees are 

required to perform written evaluations 

to establish, for their site-specific 

conditions, that the conditions set forth 

in the CoC have been met and that cask 

storage pads and areas have been 

designed to adequately support the 

static and dynamic loads of the stored 

casks, considering potential 

amplification of earthquakes through 

soil-structure interaction, and soil 

liquefaction potential or other soil 

instability due to vibratory ground 

motion. The Indian Point, Vermont 

Yankee, and Palisades NPPs, which 

were specifically cited in the comment, 

have ISFSIs co-located at their existing 

NPPs and are operating their ISFSIs 

under an NRC general license. Entergy 

Nuclear Generation Company has 

informed the NRC of its intentions to 

store spent fuel in dry casks at the 

Pilgrim NPP. 

Based on currently available 

information, the NRC concludes that the 

storage casks being used at Indian Point, 

Vermont Yankee, and Palisades (all 

located in CEUS) demonstrate an 

adequate margin of safety for any 

design-basis earthquake loads 

postulated at these respective sites. 

There is no safety concern; however, 

there were a few limitations to the risk 

methodology employed and 

uncertainties associated with the data 

used. As a result, licensees of operating 

power reactors and ISFSI facilities in 

the CEUS may need to evaluate whether 

the updated seismic hazard estimates 

will have any adverse impact on their 

current design/licensing basis. This is 

currently being considered as part of the 

NRC’s Generic Issue Resolution Process. 

Additionally, the storage cask analyses 

and designs at operating ISFSIs provide 

an adequate safety margin and comply 

with the requirements in 10 CFR part 

72. Since Generic Issue No. 199, 

‘‘Implications of Updated Probabilistic 

Seismic Hazard Estimates in Central and 

Eastern United States on Existing 

Plants,’’ November 17, 2008, is still an 

open issue, implications of any new 

information and its effects, if any, on 

CEUS–ISFSI seismic design for the 

storage casks and support pads will be 

evaluated as part of the resolution of 

that issue. 

On September 2, 2010, the NRC 

issued Information Notice (IN) 2010–18, 

‘‘Implications of Updated Probabilistic 

Seismic Hazard Estimates in Central and 

Eastern United States on Existing 

Plants’’ to all operating reactors 

licensees. IN 2010–18 discusses recent 

updates to estimates, which apply to 

ISFSIs as well as existing plants, of the 

seismic hazard in the central and 

eastern United States. In summary, the 

information provided by the 

commenters has little overall influence 

on the postulated seismic hazard 

estimates in the CEUS. 

August 2008 Study of Seismic Hazard 

Estimates in the Eastern United States: 

In August 2008, a technical paper, 

Observations and Tectonic Setting of 

Historic and Instrumentally Located 

Earthquakes in the Greater New York 

City—Philadelphia Area by Lynn R. 

Sykes et al. was published in the 

Bulletin of the Seismological Society of 

America, Vol. 98, No. 4. NRC staff from 

the Office of Nuclear Regulatory 

Research (RES) reviewed this paper to 

assess the impacts, if any, of this new 

information on the existing design basis 

seismic hazard estimates used for NPPs 

located in this area of Central and 

Eastern United States (CEUS). RES’s 

assessment was as follows: 

In addition to publishing a seismicity map 

of the area covering the time period from 

1677 to 2006, the paper identifies for the first 

time a boundary in seismicity, with 

earthquakes with magnitudes less than 3 

occurring south of the boundary but not 

north of it. The boundary intersects the 

Ramapo Fault on the northwest near 

Peekskill, NY, and this point appears to 

coincide with an offset in the Hudson River. 

The southeast terminus of the boundary is 

near Stamford, CT, with a length of about 30 

miles (50 km). The authors inferred that the 

boundary is a fault. 

If the boundary is a fault, it is only about 

30 miles long and much shorter than the 

Ramapo Fault, which has already been 

considered in the seismic hazard of the area 

and in the seismic design of the Indian Point 

NPPs. The Ramapo Fault was already 

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considered in a probabilistic seismic hazard 

assessment (PSHA) covering the Indian Point 

area. The newly identified boundary/fault 

would not change the maximum magnitude 

in the PSHA calculations; the Ramapo 

already controls that. The vast majority of 

earthquakes identified in the paper and the 

general seismicity of the area were known 

and were used in the US Geological Survey 

PSHA. Thus, the rate of seismicity used in 

their PSHA is little changed by the paper. 

Thus, with the maximum magnitude and the 

rate of seismicity little changed or unchanged 

by the paper, the PSHA assessment is not 

expected to have changed. 

This means that the paper would have 

little overall influence on the perceived 

hazard near Buchanan, NY. E-mail from 

Andrew Murphy to Scott Burnell, Diane 

Screnci, and Neil Sheehan, August 22, 2008 

(ADAMS Accession Number ML091530483). 

The rate of seismicity of the area used 

in the USGS PSHA is little changed by 

the information published in the paper. 

As the maximum magnitude and the 

rate of seismicity changed little or was 

practically unchanged by the 

information in the paper, the USGS 

PSHA assessment is not expected to 

change. 

Comment 21: A commenter believes 

that the NRC, in judging the safety and 

security of onsite storage for time 

periods extending to the middle of the 

next century, should seriously consider 

the safety of subsequent pick-up and 

transport of the SNF. 

NRC Response: The NRC’s regulations 

establish the safety standards for the 

design, construction and use of spent 

fuel transportation packages. See 10 

CFR part 71. The NRC conducts rigorous 

independent reviews to certify that 

spent fuel transportation packages meet 

the design standards and test conditions 

in the regulations. In addition, the NRC 

reviews and approves the operational 

procedures and conditions for use of the 

transport package. These requirements 

include maintenance of the transport 

package in full compliance with the 

NRC-approved package design and 

material conditions, and the 

requirements include strict adherence to 

the NRC-approved operating procedures 

for the preparation for and loading of 

the spent fuel transport package. The 

requirements for use of an NRCapproved spent fuel transport package 

apply irrespective of how long the spent 

fuel may have been in interim storage. 

Packages that are designed, tested, 

operated and maintained according to 

NRC requirements will provide for the 

safe transport of spent fuel. Spent fuel 

packages are very robust and are 

designed to withstand severe accidents. 

Numerous studies and physical testing 

programs have demonstrated that the 

safety standards that the NRC uses to 

certify transportation packages provide 

a very high degree of protection against 

real world accidents. See NUREG/CR– 

4829, Shipping Container Response to 

Severe Highway and Railway Accident 

Conditions; NUREG/CR–6894, Spent 

Fuel Transportation Package Response 

to the Caldecott Tunnel Fire Scenario; 

NUREG/CR–6886, Spent Fuel 

Transportation Package Response to the 

Baltimore Tunnel Fire Scenario; 

NUREG–0170, Final Environmental 

Statement on the Transportation of 

Radioactive Material by Air and Other 

Modes; ‘‘Going the Distance? The Safe 

Transport of Spent Nuclear Fuel and 

High-Level Radioactive Waste in the 

United States,’’ National Research 

Council of the National Academies, 

National Academies Press, Washington 

DC, 2006, available at http:// 

www.nap.edu/ 

catalog.php?record_id=11538. 

Additionally, the NRC periodically 

reviews the basis for the transportation 

regulations to ensure that the 

regulations continue to provide an 

adequate level of safety for the shipment 

of spent fuel. These reviews account for 

changes in analytical methods, 

materials, package contents, and 

operating history. The last periodic 

review confirmed that initial 

transportation studies done in the 1970s 

(which are the basis for the NRC’s 

regulations) contained very conservative 

assumptions and that the risk to the 

public from transportation of spent fuel 

is very low. See NUREG/CR–6672, 

Reexamination of Spent Fuel Shipment 

Risk Estimates, March 2000. The same 

robust design features that make spent 

fuel packages safe also make them 

secure from terrorist attack. 

Comment 22: The Decommissioning 

Plant Coalition (DPC) noted that in 1990 

the Commission expressed support for 

timely disposal of SNF and HLW and 

stated that it did not intend to support 

storage of spent fuel for an indefinitely 

long period (See 55 FR 38482; 

September 18, 1990). The DPC urges the 

Commission to explicitly reaffirm this 

position and, further, express its 

expectation that the Federal 

Government will soon provide a 

demonstration that it can reach a 

consensus on a plan to take title to and 

remove SNF and Greater-Than-Class-C 

(GTCC) waste from permanently shutdown, single-site facilities. The DPC 

outlines the burdens imposed on 

decommissioned sites by continuing 

long-term onsite storage, such as 

restricting the property owners and 

other local stakeholders from other 

potential uses for the site. The National 

Association of Regulatory Utility 

Commissioners agrees with the NRC 

that today SNF is better protected than 

ever, but also believes that the SNF will 

be even more secure in a centralized 

interim storage or permanent disposal 

facility. Similarly, a number of 

commenters expressed the view that a 

centralized interim storage facility 

would be a safe and cost-effective 

option for managing and storing SNF 

until a repository is available. The DPC 

also takes exception to the NRC’s 

‘‘analysis’’ of difficulties that may block 

the opening of the Private Fuel Storage 

(PFS) ISFSI and the NRC’s ‘‘analysis’’ of 

a February 2006 NAS study, in footnote 

24 of the proposed update to the Waste 

Confidence Decision, and would like 

the footnote eliminated or rewritten. 

NRC Response: The Commission 

continues to support timely disposal of 

HLW and SNF, but recognizes in this 

Waste Confidence Decision that storage 

of SNF may safely continue for at least 

60 years beyond the licensed life for 

operation of a reactor. The Commission 

agrees that centralized interim storage 

would be an acceptable method for 

managing and storing SNF until a 

repository is available, but determining 

when DOE will take spent fuel and 

GTCC wastes from reactor sites and how 

waste will then be managed are issues 

for DOE to resolve. 

The NRC’s proposed update noted 

that the issuance of a license for the PFS 

ISFSI confirmed the feasibility of 

licensing an away-from-reactor ISFSI 

under 10 CFR Part 72, but also noted 

that several issues would have to be 

resolved before the PFS ISFSI could be 

built and operated (See 73 FR 59566; 

October 9, 2008). Footnote 24 identified 

these issues as two approvals from the 

Department of the Interior and a NAS 

Report on the transportation of SNF in 

the United States (National Research 

Council 2006, Going the Distance: The 

Safe Transport of [SNF and HLW] in the 

United States). The footnote is not an 

analysis of these issues; it simply 

acknowledges issues raised by the 

Department of the Interior and NAS that 

need to be addressed. With respect to 

PFS, the DPC states: ‘‘The Commission 

would do well to comment that it is 

THE safe and secure licensed facility 

that should be utilized to reduce waste 

confidence concerns. You can observe, 

consistent with historical Commission 

concerns about dual and multiple 

regulation, that legislation can effect a 

reduction in the multiple and redundant 

political and regulatory jurisdictions 

over use of such facilities.’’ The license 

issued to PFS demonstrates that the 

Commission believes that the facility 

can be constructed and operated 

without jeopardizing public health and 

safety, but it is up to the licensee and 

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11Congress must make annual appropriations for 

the HLW program from the Fund, so the amount 

actually available to DOE in any given year is 

dependent upon the amount appropriated. 

12NRC is aware that there is a pending DC Circuit 

case—National Association of Regulatory Utility 

Commissioners v. DOE, Nos. 10–1074 and 10–1076 

(consolidated) (DC Cir.)—where petitioners have 

asked the court of appeals to suspend further 

payments to the nuclear waste fund. The pending 

DC Circuit litigation relates to Yucca Mountainrelated developments. Whatever that litigation’s 

outcome, DOE’s fee-adjustment authority would 

remain in the NWPA, available to be exercised in 

appropriate circumstances. 

other agencies to resolve issues within 

their purview that may block 

construction of the facility. 

Issue 8: Miscellaneous Comments 

Comment 23: One commenter stated 

that the proposed rulemaking appears to 

countenance the stranding of SNF at or 

near plant sites for up to 150 years or 

more and contains no effective or 

reasonable time frame in 20 or so years 

to revisit this matter, or to contain any 

form of limitations, guidelines, or other 

provisions to ensure the ultimate safe 

and proper disposal of SNF. 

NRC Response: The Commission, in 

its 1999 review of the Waste Confidence 

Decision, stated that it would consider 

undertaking a comprehensive 

reevaluation of the Waste Confidence 

Findings when the impending 

repository development and regulatory 

activities run their course or if 

significant and pertinent unexpected 

events occur, raising substantial doubt 

about the continuing validity of the 

Waste Confidence Findings (See 64 FR 

68005; December 6, 1999). Although 

those criteria have not triggered this 

update, it is apparent that the ultimate 

disposition of the YM application is 

uncertain. This update reflects the 

uncertainty regarding the ultimate grant 

or denial of the YM license by 

considering the possibility that the 

license is not granted. For this reason, 

termination of the YM program would 

not be a basis for a further review of the 

Waste Confidence Decision. However, if 

significant and pertinent unexpected 

events that raise substantial doubt about 

the continuing validity of the Waste 

Confidence Findings occur, the 

Commission will consider undertaking 

another review of the Waste Confidence 

Decision. Further, the Commission has 

directed the NRC staff to begin an EIS 

to consider the long-term (greater than 

120 years) storage of SNF and HLW and 

to consider further rulemaking in 

accordance with the findings of this 

review. The Commission will revisit the 

criteria for reopening the Waste 

Confidence Decision and Rule as part of 

this longer-term effort. 

Comment 24: A commenter stated that 

the cost of the proposed rule change is 

only briefly and minimally discussed 

and expressed the view that there would 

be significant costs to both ratepayers 

and taxpayers stemming from storage of 

this waste for an additional 50 to 60 

years at plant sites. The commenter 

recommended that the full cost of 

implementing this rule be completely 

evaluated by the NRC under the NRC’s 

Regulatory Analyses Guidelines and the 

requirements for assessing the impacts 

of proposed rules which have a certain 

threshold cost. TSEP believes it is not 

reasonable to assume that the present 

1.0 mil per kWh fee will suffice to pay 

for the U.S. repository program. 

NRC Response: The Commission’s 

action of enlarging its generic 

determination in 10 CFR 51.23(a) by 30 

years is not a licensing decision and 

does not give permission to reactor 

licensees to store spent fuel that they do 

not already possess (or may not obtain) 

under a 10 CFR Part 72 general or 

specific license. See Response to 

Comment 6. Finding 4 only states the 

Commission’s reasonable assurance that 

SNF can be stored safely and without 

significant environmental impact for at 

least 60 years beyond the licensed life 

for operation of any reactor, if 

necessary. The NRC generally provides 

a Regulatory Analysis for actions that 

‘‘would affect a change in the use of 

resources by its licensees.’’ Regulatory 

Analysis Guidelines of the U.S. Nuclear 

Regulatory Commission, NUREG/BR– 

0058, 5 (September 2004). A Regulatory 

Analysis may be appropriate when the 

NRC is considering placing burdens on 

its licensees through a licensing or 

regulatory action (e.g., in the 

prospective ISFSI security rulemaking), 

but that is not the case here. The NRC 

recognizes that many commenters are 

concerned about the burden placed on 

ratepayers charged by utilities for the 

cost of continued storage of SNF at 

reactor sites and on taxpayers paying 

the cost of DOE’s default in failing to 

remove SNF from reactor sites as 

specified in DOE’s contracts with the 

utilities. However, until DOE is able to 

fulfill its contracts, these burdens will 

exist irrespective of these updates to the 

Waste Confidence Decision and Rule; 

and NRC licensees still have to comply 

with the NRC’s regulations, which 

continue to provide reasonable 

assurance that SNF and HLW will be 

stored safely. 

The fee mandated by the NWPA that 

reactor licensees must pay into the 

Nuclear Waste Fund to provide for 

eventual disposal of HLW and SNF has 

so far been more than adequate to 

support DOE’s HLW program with 

approximately $25 billion in the Fund 

as of July 2010. See Statement of 

Kristina M. Johnson, Undersecretary of 

Energy, before the Committee on the 

Budget, U.S. House of Representatives, 

1 (July 27, 2010).11 Moreover, the 

NWPA provides a mechanism for 

increasing the fee if the current fee 

becomes inadequate to cover costs. See 

Section 302(a)(4) of NWPA, 42 U.S.C. 

10222 (2006). DOE has periodically 

issued a total system cost estimate for 

the disposal program to provide a basis 

for assessing the adequacy of the 

fee.12See, e.g., 2008 Fee Adequacy 

Assessment Letter Report, (January 13, 

2009). 

Comment 25: A commenter raised the 

question of how the Commission’s 

expectation that repository capacity can 

reasonably be expected to be available 

within 50–60 years beyond the licensed 

life for operation of any reactor would 

be met in the case of the Humboldt Bay 

3 NPP which was decommissioned in 

1976, meaning that 50 years beyond its 

decommissioning would be 2026. The 

commenter asked if this meant that SNF 

would be removed from Humboldt Bay 

3 by 2026 and, if so, what is the need 

for amending Finding 2. 

NRC Response: The commenter has 

confused the end of operation of the 

reactor with the end of the licensed life 

for operation. Humboldt Bay 3 was 

issued a 40-year operating license in 

1962. The end of its licensed life for 

operation, therefore, was 2002 and 50 

years beyond that would be 2052. Even 

if a reactor is retired prematurely, 

resulting in the need to manage and 

store SNF for a longer period after the 

end of reactor operation, the 

Commission is confident, for all the 

reasons expressed in reaching Findings 

3 and 4, that the management and 

storage of the SNF will be conducted 

safely and securely without significant 

impact to the environment. 

Comment 26: The Attorney General of 

New York submitted supplemental 

comments, many of which are discussed 

above. These comments did, however, 

raise an issue that, although similar to 

other comments, the NRC is addressing 

here: ‘‘Recent actions by the 

Commission, particularly since 2001, 

have demonstrated that a significant 

number of substantial environmental 

and safety issues related to indefinite 

storage of spent fuel at the site of 

shutdown nuclear reactors are specific 

to the particular reactor and site and 

cannot be addressed on a generic basis.’’ 

More generally, the Attorney General 

argues that there are environmental and 

safety issues associated with spent fuel 

storage (not just indefinite storage) that 

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81057 

13On July 8, 2010, the Commission directed the 

ASLB to deny admission of two new contentions 

regarding waste confidence in the Indian Point 

proceeding. The Commission explained that it has 

been longstanding policy to preclude initiating 

litigation on issues that will soon be resolved 

generically. See In the Matter of Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating 

Units 2 and 3), CLI–10–19, 2010 WL 2753785 

(2010). 

are site and facility-specific and 

therefore cannot be addressed through a 

generic rulemaking. The Attorney 

General believes that the NRC could 

address these concerns by permitting 

States to raise site-specific concerns 

with respect to issues that are now 

foreclosed by the Waste Confidence 

Decision and Rule. 

NRC Response: The Attorney General 

is correct that there may be some issues 

that cannot be addressed through a 

generic process like the Waste 

Confidence Decision. The Commission 

has long recognized this, even in cases 

where issues are resolved through a 

generic rulemaking. Site-specific 

circumstances may require a sitespecific analysis; the Commission has 

provided for these situations through its 

regulations in 10 CFR 2.335, which 

allows parties to adjudicatory 

proceedings to petition for the waiver of 

or an exception to a rule in a particular 

proceeding. These requests require the 

petitioning party to demonstrate that 

special circumstances exist so that the 

application of the rule or regulation 

would not serve the purposes for which 

the rule or regulation was adopted. 

Further, in the case of license renewal 

proceedings, the licensee is required to 

look for and identify ‘‘new and 

significant’’ information that would put 

the facility outside of the generic 

assessment in the GEIS for license 

renewal; the NRC staff also looks for 

new and significant information as part 

of its review. If no new and significant 

information is found, the staff concludes 

that the issue is generic and within the 

environmental impacts of the GEIS. 

With respect to the ongoing Indian Point 

license renewal proceeding, where the 

State of New York is a party, and has 

raised similar issues in the context of 

that proceeding, the license renewal 

proceeding is the proper venue in which 

to seek a waiver to the Waste 

Confidence Rule. If the State believes 

that there are site-specific issues 

associated with the Indian Point license 

renewal proceeding, the State should 

seek a waiver of the rule through that 

proceeding using the procedures in 10 

CFR 2.335.13 But the potential that one 

or more sites might not fall under the 

generic determination in the Waste 

Confidence Decision and Rule is not 

sufficient reason for the Commission to 

require to a site-specific analysis for all 

sites. The 10 CFR 2.335 waiver process 

is intended to address the circumstances 

that the Attorney General claims are 

present at Indian Point; and the 

adjudicatory proceeding for the Indian 

Point license renewal, not this 

rulemaking, is the proper venue to raise 

these issues. 

Comment 27: The Attorney General of 

New York’s supplemental comments 

raised two new ‘‘conclusions’’ to support 

its original comments: 

Subsequent to 2001, the Commission has 

abandoned any attempt to treat safety and 

environmental issues associated with spent 

fuel storage at reactor sites on a generic basis. 

Rather, the Commission, operating through 

its regulatory staff, has ordered 

implementation of site-specific mitigation 

measures for each reactor to address concerns 

with spent fuel storage. NRC has 

acknowledged that there are differences in 

spent fuel pool designs and capabilities. NRC 

has also required the implementation of sitespecific mitigation measures in response to 

Congressional directives to NRC to develop 

site-specific analyses and measures for each 

spent fuel pool. Moreover, while these 

mitigation measures have been the subject of 

extensive discussion between NRC and 

industry, their details have not been 

disclosed to the States, and there has not 

been any opportunity for public input 

regarding the adequacy of the measures being 

taken or even whether measures are being 

taken to address all the potential 

environmental and safety issues associated 

with spent fuel storage at reactors sites or 

whether more effective alternatives are 

available. 

And 

Previous indications that the Yucca 

Mountain waste repository would never 

come to fruition have now become more 

certain as the funding for the program has 

been removed from the proposed federal 

budget and DOE staff have publicly stated 

that the project will not go forward. 

NRC Response: Contrary to the State’s 

assertion, the NRC continues to treat 

some issues associated with spent fuel 

storage on a generic basis; the 

Commission’s approval of these updates 

to the Waste Confidence Decision and 

Rule are evidence of that fact. To the 

extent that the Attorney General’s 

comments relate to the license renewal 

process at Indian Point, the Commission 

has a process in place to ensure that 

generic issues at specific sites under 

review for license renewal are, in fact, 

generic. Although spent fuel storage is 

a Category 1 (generic) issue and does not 

require a site-specific evaluation, the 

licensee and the staff both evaluate 

these generic issues to ensure that there 

is no new and significant information 

that would require a site-specific 

analysis for these issues. To the extent 

that the rest of the Attorney General’s 

conclusion raises issues associated with 

the Indian Point license renewal, this 

rulemaking is not the appropriate venue 

to raise these issues; the State should 

raise these concerns in its capacity as a 

party to the Indian Point relicensing 

proceeding. 

As acknowledged in the Attorney 

General’s conclusion, the Commission 

discussed the relationship between the 

YM repository and the draft final 

updates to the Waste Confidence 

Decision and Rule in the attachments to 

SECY–09–0090. In these documents (the 

draft final Decision and Rule), the 

Commission discussed how the Waste 

Confidence Decision and Rule assume 

that YM will not be opened as a 

repository. This conclusion continues in 

these documents: The Waste Confidence 

Decision and Rule assume that YM is 

not an option. As the Commission states 

throughout this document and has 

stated on multiple occasions, the 

availability of the YM repository has no 

bearing on the outcome of this 

rulemaking or update to the Waste 

Confidence Decision. 

Evaluation of Waste Confidence 

Findings 

Having considered and addressed the 

comments received on the 

Commission’s proposed updates to the 

Waste Confidence Decision and Rule, 

the Commission now reexamines the 

1984 and 1990 bases for its findings and 

supplements those bases with an 

evaluation of events and issues that 

have arisen since 1990 and affect the 

findings. 

Table of Contents 

I. Finding 1: The Commission finds 

reasonable assurance that safe disposal 

of high-level radioactive waste and spent 

fuel in a mined geologic repository is 

technically feasible. 

A. Bases for Finding 1 

B. Evaluation of Finding 1 

II. Finding 2 (1990): 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 

high-level radioactive waste and spent 

fuel originating in such reactor and 

generated up to that time. 

A. Bases for Finding 2 

B. Evaluation of Finding 2 

C. Finding 2 

III. Finding 3: The Commission finds 

reasonable assurance that HLW and 

spent fuel will be managed in a safe 

manner until sufficient repository 

capacity is available to assure the safe 

disposal of all HLW and spent fuel. 

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81058 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

14Under the program established by the initial 

NWPA, DOE had nominated sites at Hanford WA, 

Yucca Mountain, NV, Deaf Smith County, TX, Davis 

Canyon, UT, and Richton Dome, MS, and had 

recommended the first 3 sites for site 

characterization. 

15Tuff is a type of rock consisting of successive 

layers of fine-grained volcanic ash. See DOE/RW– 

0573, Rev. 0 Yucca Mountain Repository GI. 

(ADAMS Accession Numbers ML081560408, 

ML081560409, and ML081560410). 

A. Bases for Finding 3 

B. Evaluation of Finding 3 

IV. Finding 4 (1990): 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 independent 

spent fuel storage installations. 

A. Bases for Finding 4 

B. Evaluation of Finding 4 

C. Finding 4 

V. Finding 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. 

A. Bases for Finding 5 

B. Evaluation of Finding 5 

I. Finding 1: The Commission Finds 

Reasonable Assurance That Safe 

Disposal of High-Level Radioactive 

Waste and Spent Fuel in a Mined 

Geologic Repository Is Technically 

Feasible 

A. Bases for Finding 1 

The Commission reached this finding 

in 1984 and reaffirmed it in 1990. The 

focus of this finding is on whether safe 

disposal of HLW and SNF is technically 

possible using existing technology and 

without a need for any fundamental 

breakthroughs in science and 

technology. To reach this finding, the 

Commission considered the basic 

features of a repository designed for a 

multi-barrier system for waste isolation 

and examined the problems that the 

DOE would need to resolve as part of a 

final design for a mined geologic 

repository. The Commission identified 

three major technical problems: (1) The 

selection of a suitable geologic setting as 

host for a technically acceptable 

repository site; (2) the development of 

waste packages that will contain the 

waste until the fission products are 

greatly reduced; and (3) the 

development of engineered barriers, 

such as backfilling and sealing of the 

drifts and shafts of the repository, which 

can effectively retard migration of 

radionuclides out of the repository (49 

FR 34667; August 31, 1984). 

DOE’s selection of a suitable geologic 

setting is governed by the NWPA. DOE 

explored potential repository sites 

before the NWPA was enacted, but that 

Act set in place a formal process and 

schedule for the development of two 

geologic repositories. The following 

brief summary of key provisions of this 

Act may assist readers in understanding 

DOE’s process for locating a suitable 

geologic setting. 

As initially enacted, the Nuclear 

Waste Policy Act of 1982 directed DOE 

to issue guidelines for the 

recommendation of sites and then to 

nominate at least five sites as suitable 

for site characterization for selection as 

the first repository site and, not later 

than January 1, 1985, to recommend 

three of those sites to the President for 

characterization as candidate sites. 

Nuclear Waste Policy Act of 1982, § 112, 

96 Stat. 2201 (1983) (current version at 

42 U.S.C. 10132 (2006)). Not later than 

July 1, 1989, DOE was to again nominate 

five sites and recommend three of them 

to the President for characterization for 

selection as the second repository. Id. 

DOE was then to carry out site 

characterization activities for the 

approved sites. Nuclear Waste Policy 

Act of 1982, § 113, 96 Stat. 2201 (1983) 

(current version at 42 U.S.C. 101323 

(2006)). Following site characterization, 

DOE was to recommend sites to the 

President as suitable for development as 

repositories and the President was to 

recommend one site to the Congress by 

March 31, 1987, and another site by 

March 31, 1989, for development as the 

first two repositories. Nuclear Waste 

Policy Act of 1982, § 114, 96 Stat. 2201 

(1983) (current version at 42 U.S.C. 

10134 (2006)). States and affected 

Indian tribes were given the opportunity 

to object, but if the recommendations 

were approved by Congress, DOE was to 

submit applications for a construction 

authorization to the NRC. Id. The NRC 

was given until January 1, 1989, to reach 

a decision on the first application, and 

until January 1, 1992, on the second. 

The Commission was directed to 

prohibit the emplacement in the first 

repository of more than 70,000 MTHM 

until a second repository was in 

operation. Id. The NWPA, inter alia, 

restricted site characterization solely to 

a site at Yucca Mountain, NV (YM) and 

terminated the program for a second 

repository. The NWPA provided that if 

DOE at any time determines Yucca 

Mountain to be unsuitable for 

development as a repository, DOE must 

report to Congress its recommendations 

for further action to ensure the safe, 

permanent disposal of SNF and HLW, 

including the need for new legislation. 

Section 113 of NWPA, 42 U.S.C. 10133 

(2006). 

In 1984, the Commission reviewed 

DOE’s site exploration program and 

concluded that it was providing 

information on site characteristics at a 

sufficiently large number and variety of 

sites and geologic media to support the 

expectation that one or more technically 

acceptable sites would be identified (49 

FR 34668; August 31, 1984). In 1990, the 

Commission noted that the 1987 

amendment of the Nuclear Waste Policy 

Act of 1982, which focused solely on 

the YM site, could cause considerable 

delay in opening a repository if that site 

were found not suitable for licensing. 

But the possibility of that delay did not 

undermine the Commission’s 

confidence that a technically acceptable 

site would be located, either at YM or 

elsewhere. The Commission observed 

that the NRC staff had provided 

extensive comments on DOE’s draft 

environmental assessments of the nine 

sites it had identified as being 

potentially acceptable and on the final 

environmental assessments for the five 

sites nominated.14 The NRC had not 

identified any fundamental technical 

flaws or disqualifying factors that would 

render any of the sites unsuitable for 

characterization or potentially 

unlicenseable, although the NRC noted 

that many issues would need to be 

resolved during site characterization for 

YM or any other site (55 FR 38486; 

September 18, 1990). 

With respect to the development of 

effective waste packages, the 

Commission, in 1984, reviewed DOE’s 

scientific and engineering program on 

this subject. The Commission also 

considered whether the possibility of 

renewed reprocessing of SNF could 

affect the technical feasibility of the 

waste package because it would need to 

consider waste form other than spent 

fuel. The Commission concluded that 

the studies by DOE and others 

demonstrated that the chemical and 

physical properties of SNF and HLW 

can be sufficiently understood to permit 

the design of a suitable waste package 

and that the possibility of commercial 

reprocessing would not substantially 

affect this conclusion (49 FR 34671; 

August 31, 1984). In 1990, the 

Commission reviewed DOE’s continued 

research and experimentation on waste 

packages, which primarily focused on 

work in Canada and Sweden. The NRC 

noted that the DOE had narrowed the 

range of waste package designs to a 

design tailored for unsaturated tuff 15 at 

the YM site due to the 1987 redirection 

of the HLW program. The NRC also 

noted that some reprocessing wastes 

from the defense program and the West 

Valley Demonstration Project were now 

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81059 

16NRC’s regulations at 10 CFR part 63 apply only 

to the proposed repository at YM. NRC’s regulations 

at 10 CFR part 60, ‘‘Disposal of High-Level 

Radioactive Wastes in Geologic Repositories,’’ 

govern the licensing of any repository other than 

one located at YM. However, at the time part 63 was 

proposed, the Commission indicated it would 

consider revising Part 60 if it seemed likely to be 

used in the future. (64 FR 8640, 8643; February 22, 

1999). 

anticipated to be disposed of in the 

repository. The NRC remained confident 

that, given a range of waste forms and 

conservative test conditions, the 

technology is available to design 

acceptable waste packages (55 FR 

38489; September 18, 1990). 

With respect to the development of 

effective engineered barriers, the 

Commission’s confidence in 1984 rested 

upon its consideration of DOE’s ongoing 

research and development activities 

regarding backfill materials and 

borehole and shaft sealants, which led 

the Commission to conclude that these 

activities provided a basis for reasonable 

assurance that engineered barriers can 

be developed to isolate or retard 

radioactive material released by the 

waste package (49 FR 34671; August 31, 

1984). In 1990, although DOE’s research 

had narrowed to focus on YM, the 

Commission continued to have 

confidence that backfill or packing 

materials can be developed as needed 

for the underground facility and waste 

package and that an acceptable seal can 

be developed for candidate sites in 

different geologic media (55 FR 38489– 

38490; September 18, 1990). 

B. Evaluation of Finding 1 

Today, the scientific and technical 

community engaged in waste 

management continues to have high 

confidence that safe geologic disposal is 

achievable with currently available 

technology. See, e.g., National Research 

Council, ‘‘Technical Bases for Yucca 

Mountain Standards,’’ 1995. No 

insurmountable technical or scientific 

problem has emerged to disturb this 

confidence that safe disposal of SNF 

and HLW can be achieved in a mined 

geologic repository. To the contrary, 

there has been significant progress in 

the scientific understanding and 

technological development needed for 

geologic disposal over the past 18 years. 

There is now a much better 

understanding of the processes that 

affect the ability of repositories to 

isolate waste over long periods. Id. at 

71–72; International Atomic Energy 

Agency (IAEA), ‘‘Scientific and 

Technical Basis for the Geologic 

Disposal of Radioactive Wastes, 

Technical Reports Series No. 413,’’ 2003. 

The ability to characterize and 

quantitatively assess the capabilities of 

geologic and engineered barriers has 

been repeatedly demonstrated. NRC, 

‘‘Disposal of High-Level Radioactive 

Wastes in a Proposed Geologic 

Repository at Yucca Mountain, Nevada; 

Proposed Rule,’’ (64 FR 8640, 8649; 

February 22, 1999); Organization for 

Economic Cooperation and 

Development, Nuclear Energy Agency, 

‘‘Lessons Learned from Ten Performance 

Assessment Studies,’’ 1997. Specific 

sites have been investigated and 

extensive experience has been gained in 

underground engineering. IAEA, 

‘‘Radioactive Waste Management 

Studies and Trends, IAEA/WMDB/ST/ 

4,’’ 2005; IAEA, ‘‘The Use of Scientific 

and Technical Results from 

Underground Research Laboratory 

Investigations for the Geologic Disposal 

of Radioactive Waste, IAEA–TECDOC– 

1243,’’ 2001. These advances and others 

throughout the world continue to 

confirm the soundness of the basic 

concept of deep geologic disposal. 

IAEA, ‘‘Joint Convention on Safety of 

Spent Fuel Management and on Safety 

of Radioactive Waste Management, 

INFCIRC/546,’’ 1997. 

In the United States, the technical 

approach for safe HLW disposal has 

remained unchanged for several 

decades: Use a deep geologic repository 

containing natural barriers to hold 

canisters of HLW with additional 

engineered barriers to further retard 

radionuclide release. Although some 

elements of this technical approach 

have changed in response to new 

knowledge (e.g., engineered backfill was 

removed as a design concept for YM in 

the late 1990s in response to enhanced 

understandings of heat and water 

transfer processes in the near-field drift 

environment), safe disposal still appears 

to be feasible with current technology. 

In 1998, DOE conducted assessments for 

long-term performance of a potential 

repository at YM (DOE/RW–0508, 

Viability Assessment) and 2002 (DOE/ 

RW–0539, Site Recommendation). 

These assessments used existing 

technology and available scientific 

information and did not identify areas 

where fundamental breakthroughs in 

science or technology were needed to 

support safe disposal. 

With respect to the issue of 

identifying a suitable geologic setting as 

host for a technically acceptable site, 

DOE made its suitability determination 

for the YM site in 2002. On June 3, 

2008, DOE submitted the application for 

construction authorization to the NRC 

and on September 8, 2008, NRC staff 

notified DOE that it found the 

application acceptable for docketing (73 

FR 53284; September 15, 2008). 

Whether YM is technically acceptable 

must await the outcome of an NRC 

licensing proceeding, which, if 

completed, would rule on the technical 

acceptability of a repository at YM. Even 

if DOE does not construct a repository 

at YM, this would not change the fact 

that the Commission continues to have 

reasonable assurance that the 

technology exists today to safely dispose 

of SNF and HLW in a geologic 

repository. Although the 1987 

amendments to NWPA barred DOE from 

continuing site investigations 

elsewhere, the U.S. Congress’s decision 

to focus solely on YM was not based on 

any finding that any of the other sites 

were unsuitable for technical reasons; 

rather, the decision was aimed at 

controlling the costs of the HLW 

program (55 FR 38486; September 18, 

1990). 

Repository programs in other 

countries, which could inform the U.S. 

program, are actively considering 

crystalline rock, clay, and salt 

formations as repository host media. 

IAEA, ‘‘Radioactive Waste Management 

Status and Trends, IAEA/WMDB/ST/4,’’ 

2005; IAEA, ‘‘The Use of Scientific and 

Technical Results from Underground 

Research Laboratory Investigations for 

the Geologic Disposal of Radioactive 

Waste, IAEA–TECDOC–1243,’’ 2001. 

Many of these programs have researched 

these geologic media for several 

decades. Although there are relative 

strengths to the capabilities of each of 

these potential host media, no geologic 

media previously identified as a 

candidate host, with the exception of 

salt formations for SNF, has been ruled 

out based on technical or scientific 

information. Salt formations are being 

considered as hosts only for reprocessed 

nuclear materials because heatgenerating waste, like SNF, exacerbates 

a process by which salt can rapidly 

deform. This process could cause 

problems with keeping drifts stable and 

open during the operating period of a 

repository. 

In 2001, the NRC amended its 

regulations to include a new 10 CFR 

part 63, ‘‘Disposal of High-Level 

Radioactive Wastes in a Geologic 

Repository at Yucca Mountain, Nevada,’’ 

(66 FR 55732; November 2, 2001). 

Part 63 requires use of both natural 

and engineered barriers to meet overall 

total system performance objectives 

without pre-determined subsystem 

performance requirements, which are 

required in 10 CFR part 60.16

Accordingly, U.S. research and 

development activities have focused on 

understanding the long-term capability 

of natural and engineered barriers, 

which can prevent or substantially 

reduce the release rate of radionuclides 

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81060 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

17The Commission amended Vermont Yankee’s 

operating license on January 23, 1991, to extend the 

expiration date of the license to 2012. (56 FR 2568; 

January 24, 1991). Vermont Yankee has applied for 

a license renewal, which is being reviewed by the 

Commission and would extend the plant’s 

operating license for 20 years. http://www.nrc.gov/ 

reactors/operating/licensing/renewal/ 

applications.html (last visited September 15, 2010). 

18The Commission amended Prairie Island 1 and 

2’s operating licenses on September 23, 1986, to 

extend the expiration date of the licenses to August 

9, 2013, and October 29, 2014 (ADAMS Accession 

Number ML022200335). Prairie Island 1 and 2 have 

applied for license renewals, which are being 

reviewed by the Commission and would extend the 

plants’ operating licenses for 20 years. http:// 

www.nrc.gov/reactors/operating/licensing/renewal/ 

applications.html (last visited September 15, 2010). 

19Under the court remand that precipitated the 

initial waste confidence review, NRC was required 

to consider whether there was reasonable assurance 

that an offsite storage solution would be available 

by the years 2007–2009 and, if not, whether there 

was reasonable assurance that the spent fuel could 

be stored safely at those sites beyond those dates. 

See State of Minnesota v. NRC, 602 F.2d 412, 418 

(DC Cir. 1979). 

from a potential repository system. 

Although the performance of individual 

barriers may change over time, the 

overall performance of the total system 

is required to be acceptable throughout 

the performance period of the 

repository. In this context of total 

system performance, research and 

development has found that it appears 

technically possible to design and 

construct a waste package and an 

engineered barrier system that, in 

conjunction with natural barriers, could 

prevent or substantially reduce the 

release rate of radionuclides from a 

potential repository system during the 

performance period. NRC, ‘‘Disposal of 

High-Level Radioactive Wastes in a 

Proposed Geologic Repository at Yucca 

Mountain, Nevada; Proposed Rule,’’ (64 

FR 8649; February 22, 1999); IAEA, 

‘‘Joint Convention on Safety of Spent 

Fuel Management and on Safety of 

Radioactive Waste Management, 

INFCIRC/546,’’ 1997. 

Since the Commission last considered 

Waste Confidence, the NRC has issued 

design certifications for new reactors 

under its regulations at 10 CFR part 52, 

‘‘Early Site Permits; Standard Design 

Certifications; and Combined Licenses 

for Nuclear Power Plants,’’ and is 

currently reviewing several plant 

designs in response to applications for 

design certifications. The NRC is also 

considering COL applications for 

nuclear power plants that reference 

these certified and under-review 

designs. These facilities would use the 

same or similar fuel assembly designs as 

the nuclear power plants currently 

operating in the United States. If these 

new facilities use a new fuel type or 

different cladding, then it may be 

necessary to modify the design of a 

repository to accommodate these 

changes. But if limited reliance is 

placed on the barrier capabilities of 

cladding or fuel type to comply with 

repository safety requirements, then 

minimal design changes may be needed 

to accommodate new types of SNF or 

cladding. As such, the new reactor 

designs and specific license 

applications currently under review 

would not raise issues as to the 

technical feasibility of repository 

disposal. 

The NRC is also engaged in 

preliminary interactions with DOE and 

possible reactor vendors proposing 

advanced reactor designs that are 

different from the currently operating 

light-water reactors. Some of these 

advanced reactors use gas-cooled or 

liquid metal cooled technologies and 

have fuel and reactor components that 

might require different transportation 

and storage containers. Geometric, 

thermal, and criticality constraints 

could conceivably require a design 

modification to disposal containers from 

those currently proposed for YM. 

Nevertheless, the technical 

requirements for disposal of advanced 

reactor components appear similar to 

the requirements for disposal of 

components for current light-water 

reactors. For example, DOE had planned 

to dispose of spent fuel at YM from both 

gas-cooled (Peach Bottom 1) and liquidmetal cooled (Fermi 1) reactors, using 

the same basic technological approach 

as for SNF from light-water reactors. 

Although radionuclide inventory, fuel 

matrix, and cladding characteristics for 

advanced fuels might be different from 

current light-water reactors, the safe 

disposal of advanced fuel appears to 

involve the same scientific and 

engineering knowledge as used for fuel 

from current light-water reactors. 

There is currently a high uncertainty 

regarding the growth of advanced 

reactors in the U.S. In the licensing 

strategy included in a joint report to 

Congress in August 2008 from the NRC 

and the DOE for the next generation 

nuclear plant (NGNP) program, the 

agencies found that an aggressive 

licensing approach may lead to 

operation of a prototype facility in 2021. 

(ADAMS Accession Number 

ML082290017). Based on comparison 

with current disposal strategies for fuel 

from existing gas cooled or liquid-metal 

cooled reactors, the NRC is confident 

that current technology is adequate to 

support the safe disposal of spent fuel 

from a potential prototype facility. 

Small modular light-water reactors 

being developed will use fuel very 

similar in form and materials to the 

existing operating reactors and will not, 

therefore, introduce new technical 

challenges to the disposal of spent fuel. 

In addition to the NGNP activities 

related to the prototype reactor, various 

activities, such as DOE’s Fuel Cycle 

Research and Development Program, are 

underway to evaluate fuel cycle 

alternatives that could affect the volume 

and form of waste from the prototype 

reactor or other nuclear reactor designs. 

The need to consider waste disposal as 

part of the overall research and 

development activities for advanced 

reactors is recognized and included in 

the activities of designers, the DOE, and 

the NRC. See, e.g., DOE Nuclear Energy 

Research Advisory Committee and the 

Generation IV International Forum, ‘‘A 

Technology Roadmap for Generation IV 

Nuclear Energy Systems,’’ December 

2002. 

Based on the above discussion, 

including its response to the public 

comments, the Commission reaffirms 

Finding 1. 

II. Finding 2 (1990): 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 High-Level Radioactive 

Waste and Spent Fuel Originating in 

Such Reactor and Generated Up to That 

Time 

A. Bases for Finding 2 

In the 1984 and 1990 Waste 

Confidence Decisions, the dual 

objectives of this finding were to predict 

when a repository will be available for 

use and to predict how long spent fuel 

may need to be stored at a reactor site 

until repository space is available for 

the spent fuel generated at that reactor. 

With respect to the first prediction, the 

Commission’s focus in 1984 was on the 

years 2007–2009—the years during 

which the operating licenses for the 

Vermont Yankee 17 and Prairie Island 18

nuclear power plants would expire.19 In 

1984, DOE anticipated that the first 

repository would begin operation in 

1998 and the second in 2004. But the 

NRC concluded that technical and 

institutional uncertainties made it 

preferable to focus on the 2007–2009 

time period. The technical uncertainties 

involved how long it would take DOE to 

locate a suitable geologic setting for a 

potentially technically acceptable 

repository and how long it would take 

to develop an appropriate waste package 

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20NRC identified Dresden 1, licensed in 1959, as 

the earliest licensed power reactor and noted that 

30 years beyond its licensed life for operation 

would be 2029 and that it was possible, if a 

repository were to become available by 2025, for all 

the Dresden 1 SNF to be removed from that facility 

by 2029 (55 FR 38502; September 18, 1990). 

21 DOE was statutorily required to report to the 

President and to Congress on the need for a second 

repository between January 1, 2007, and January 1, 

2010. Section 161 of NWPA, 42 U.S.C. 10172a. DOE 

submitted the report to Congress in December 2008. 

The report recommended that Congress remove the 

70,000 MTHM limit for the YM repository, but 

Congress has not yet responded to the 

recommendation. The Report to the President and 

the Congress by the Secretary of Energy on the Need 

for a Second Repository, 1, (2008) available at 

http://www.energy.gov/media/ 

Second_Repository_Rpt_120908.pdf (last visited 

October 16, 2010). 

and engineered barriers. The 

Commission expressed the view that 

despite early delays, DOE’s program was 

on track and, under the impetus given 

by the recently-enacted NWPA, would 

timely resolve the technical problems 

(49 FR 34674–34675; August 31, 1984). 

The Commission also identified 

institutional uncertainties that needed 

to be resolved: (1) Measures for dealing 

with Federal-state disputes; (2) An 

assured funding mechanism that would 

be sufficient over time to cover the 

period for developing a repository; (3) 

An organizational capability for 

managing the HLW program; and (4) A 

firm schedule and establishment of 

responsibilities. The Commission 

expressed its confidence in the ability of 

the provisions of the then recentlypassed NWPA to timely resolve these 

uncertainties (49 FR 34675–34679; 

August 31, 1984). 

With respect to the second prediction, 

the NRC reviewed DOE’s estimates of 

the amount of installed generating 

capacity of commercial nuclear power 

plants in the year 2000 and concluded 

that the total amount of spent fuel that 

would be produced during the operating 

lifetimes of these reactors would be 

about 160,000 MTHM. To accommodate 

this volume of spent fuel, the NRC 

assumed that two repositories would be 

needed. The NRC calculated that if the 

first repository began to receive SNF in 

2005 and the second in 2008, then all 

the SNF would be emplaced by about 

2026. This would mean that sufficient 

repository capacity would be available 

within 30 years beyond the expiration of 

any reactor license for disposal of its 

SNF (49 FR 34679; August 31, 1984). 

In reviewing these predictions in 

1990, the Commission faced a 

considerably changed landscape. First, 

DOE’s schedule for the availability of a 

repository had slipped several times so 

that its then-current projection was 

2010. Second, Congress’s 1987 

amendment of NWPA had confined site 

characterization to the YM site, meaning 

that there were no ‘‘back-up’’ sites being 

characterized in case the YM site was 

found unsuitable or unlicenseable. 

Finally, site characterization activities at 

YM had not proceeded without 

problems, notably in DOE’s schedule for 

subsurface exploration and in 

development of its quality assurance 

program. Given these considerations, 

the Commission found it would not be 

prudent to reaffirm its confidence in the 

availability of a repository by 2007– 

2009 (55 FR 38495; September 18, 

1990). 

Instead, the Commission found that it 

would be reasonable to assume that 

DOE could make its finding whether 

YM was suitable for development of a 

repository by the year 2000. The 

Commission was unwilling to assume 

that DOE would make a finding of 

suitability (which would be necessary 

for a repository to be available by 2010). 

To establish a new time frame for 

repository availability, the Commission 

made the assumption that DOE would 

find the YM site unsuitable by the year 

2000 and that (as DOE had estimated) it 

would take 25 years for a repository to 

become available at a different site. The 

Commission then considered whether it 

had sufficient bases for confidence that 

a repository would be available by 2025 

using the same technical and 

institutional criteria it had used in 1984. 

The Commission found no reason to 

believe that another potentially 

technically acceptable site could not be 

located if the YM site were found 

unsuitable. The development of a waste 

package and engineered barriers was 

tied to the question of the suitability of 

the YM site, but the NRC found no 

reason to believe that a waste package 

and engineered barriers could not be 

developed for a different site by 2025, 

if necessary (55 FR 38495; September 

18, 1990). 

The institutional uncertainties were 

perhaps more difficult to calculate. The 

Commission acknowledged that DOE’s 

efforts to address the concerns of states, 

local governments, and Indian tribes 

had met with mixed results. 

Nevertheless, the Commission retained 

its confidence that NWPA had achieved 

the proper balance between providing 

for participation by affected parties and 

providing for the exercise of 

Congressional authority to carry out the 

national program for waste disposal (55 

FR 38497; September 18, 1990). 

Similarly, the Commission believed that 

management and funding issues had 

been adequately resolved by NWPA and 

would not call into question the 

availability of a repository by 2025 (55 

FR 38497–38498; September 18, 1990). 

Thus, except for the schedule, the 

Commission was confident that the 

HLW program set forth in the NWPA 

would ultimately be successful. 

The Commission also considered 

whether the termination of activities for 

a second repository, combined with the 

70,000 MTHM limit for the first 

repository, together with its new 

projection of 2025 as the date for the 

availability for a repository, undermined 

its assessment that sufficient repository 

capacity would be available within 30 

years beyond expiration of any reactor 

operating license to dispose of the SNF 

originating in such reactor and 

generated up to that time (55 FR 38501– 

38504; September 18, 1990). The 

Commission noted that almost all 

reactor licenses would not expire until 

sometime in the first three decades of 

the twenty-first century and license 

renewal was expected to extend the 

terms of some of these licenses. Thus, a 

repository was not needed by 2007– 

2009 to provide disposal capacity 

within 30 years beyond expiration of 

most operating licenses.20 The 

Commission acknowledged, however, 

that it appeared likely that two 

repositories would be needed to dispose 

of all the SNF and HLW from the 

current generation of reactors unless 

Congress provided statutory relief from 

the 70,000 MTHM limit for the first 

repository and unless the first repository 

had adequate capacity to hold all the 

SNF and HLW generated. This was 

because DOE’s 1990 spent fuel 

projections, which assumed that no new 

reactors would be constructed, called 

for 87,000 MTHM to be generated by 

2036. The Commission believed that 

that assumption probably 

underestimated the expected total spent 

fuel discharges due to the likelihood of 

reactor license renewals. 

Further, the Commission expressed 

the belief that if the need for a second 

repository was established, Congress 

would provide the needed institutional 

support and funding, as it had for the 

first repository.21 The Commission 

reasoned that if work began on the 

second repository program in 2010, that 

repository could be available by 2035. 

Two repositories available in 

approximately 2025 and 2035, each 

with acceptance rates of 3400 MTHM/ 

year within several years after 

commencement of operations, would 

provide assurance that sufficient 

repository capacity will be available 

within 30 years of operating license 

expiration for reactors to dispose of the 

spent fuel generated at their sites up to 

that time. The Commission concluded 

that a second repository, or additional 

capacity at the first repository, would be 

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81062 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

22The Commission conservatively assumed that 

licenses would be renewed for 30-year terms (55 FR 

38503; September 18, 1990). Thus, the initial 40- 

year term of the operating license, plus 30 years for 

the renewed operating license term and 30 years 

beyond the expiration of the renewed license 

amounts to storage for at least 100 years. 

23On February 14, 2002, the Secretary of Energy 

recommended the YM site for the development of 

a repository to the President thereby setting in 

motion the approval process set forth in sections 

114 and 115 of the NWPA. See 42 U.S.C. 

10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2) 

(2006). On February 15, 2002, the President 

recommended the site to Congress. On April 8, 

2002, the State of Nevada submitted a notice of 

disapproval of the site recommendation to which 

Congress responded on July 9, 2002, by passing a 

joint resolution approving the development of a 

repository at YM, which the President signed on 

July 23, 2002. See Public Law 107–200, 116 Stat. 

735 (2002) (codified at 42 U.S.C. 10135 note (Supp. 

IV 2004)). 

24Section 114(b) of NWPA directs the Secretary 

of Energy to submit a construction authorization 

application to NRC within 90 days of the date the 

site designation becomes effective. 42 U.S.C. 

10134(b). 

25Challenges to 10 CFR 51.23 in individual COL 

proceedings would likely be addressed through 

application of 10 CFR 2.335, ‘‘Consideration of 

Commission rules and regulations in adjudicatory 

proceedings.’’ This rule generally prohibits attacks 

on NRC rules during adjudicatory proceedings, but 

does allow a party to an adjudicatory proceeding to 

petition that application of a specified rule be 

waived or an exception made for the particular 

proceeding. 10 CFR 2.335(b). The sole grounds for 

a waiver or exception is that ‘‘special circumstances 

with respect to the subject matter of the particular 

proceeding are such that the application of the rule 

needed only to accommodate the 

additional quantity of spent fuel 

generated during the later years of 

reactors operating under a renewed 

license. The Commission stated that the 

availability of a second repository 

would permit spent fuel to be shipped 

offsite well within 30 years after 

expiration of these reactors’ operating 

licenses and that the same would be 

true of the spent fuel discharged from 

any new generation of reactor designs 

(55 FR 38503–38504; September 18, 

1990). 

The Commission acknowledged that 

there were several licenses that had 

been prematurely terminated where it 

was possible that SNF would be stored 

more than 30 years beyond the effective 

expiration of the license and that there 

could be more of these premature 

terminations. But the Commission 

remained confident that in these cases 

the overall safety and environmental 

impacts of extended spent fuel storage 

would be insignificant. The Commission 

found that spent fuel could be safely 

stored for at least 100 years (Finding 

4) 22 and that spent fuel in at-reactor 

storage would be safely maintained 

until disposal capacity at a repository 

was available (Finding 3). The 

Commission emphasized that it had not 

identified a date by which a repository 

must be available for health and safety 

reasons. Under the second part of 

Finding 2, safe management and safe 

storage would not need to continue for 

more than 30 years beyond expiration of 

any reactor’s operating license because 

sufficient repository capacity was 

expected to become available within 

those 30 years (55 FR 38504; September 

18, 1990). 

B. Evaluation of Finding 2 

As explained previously, the 

Commission based its estimate in 

1990—that at least one geologic 

repository would be available within the 

first quarter of the twenty-first century— 

on an assumption that DOE would make 

its suitability determination under 

section 114 of NWPA around 2000. To 

avoid being put in the position of 

assuming the suitability of the YM site, 

the Commission then assumed that DOE 

would find that site unsuitable and, as 

DOE had estimated, that it would take 

25 years before a repository could 

become available at an alternate site. 

The DOE made its suitability 

determination in early 2002 and found 

the YM site suitable for development as 

a repository.23 Although DOE’s 

application for a construction 

authorization for a repository was 

considerably delayed from the schedule 

set out in the NWPA,24 on June 3, 2008, 

the DOE submitted the application to 

the NRC and on September 8, 2008, the 

NRC staff notified the DOE that it found 

the application acceptable for docketing 

(73 FR 53284; September 15, 2008). 

Although the licensing proceeding for 

the YM repository is ongoing, DOE and 

the Administration have made it clear 

that they do not support construction of 

Yucca Mountain. On March 3, 2010, the 

DOE filed its Notice of Withdrawal with 

the Atomic Safety and Licensing Board 

(ASLB) that is presiding over the Yucca 

Mountain licensing proceeding 

(ADAMS Accession Number 

ML100621397). On June 29, 2010, the 

ASLB denied the Department’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 ASLB’s decision (ADAMS 

Accession Numbers ML101800299 and 

ML101810432). The Commission has 

not yet issued its decision. 

In 2005, the State of Nevada filed a 

petition for rulemaking with the NRC 

(PRM–51–8) that questioned whether 

continued use of the 2025 date, in effect, 

indicated prejudgment of the outcome 

of any licensing proceeding that might 

be held. The Commission rejected this 

notion in its denial of the petition: 

Even if DOE’s estimate as to when it will 

tender a license application should slip 

further, the 2025 date would still allow for 

unforeseen delays in characterization and 

licensing. It also must be recognized that the 

Commission remains committed to a fair and 

comprehensive adjudication and, as a result, 

there is the potential for the Commission to 

deny a license for the Yucca Mountain site 

based on the record established in the 

adjudicatory proceeding. That commitment is 

not jeopardized by the 2025 date for 

repository availability. The Commission did 

not see any threat to its ability to be an 

impartial adjudicator in 1990 when it 

selected the 2025 date even though then, as 

now, a repository could only become 

available if the Commission’s decision is 

favorable. Should the Commission’s decision 

be unfavorable and should DOE abandon the 

site, the Commission would need to 

reevaluate the 2025 availability date, as well 

as other findings made in 1990. State of 

Nevada; Denial of a Petition for Rulemaking 

(70 FR 48329, 48333; August 17, 2005); 

affirmed, Nevada v. NRC, 199 Fed. Appx. 1 

(DC Cir., Sept. 22, 2006). 

In the absence of an unfavorable NRC 

decision or DOE’s abandonment of the 

site, the Commission found no reason to 

reopen its Waste Confidence Decision. 

Now that it appears uncertain whether 

the YM project will ever be constructed, 

the Commission would have adequate 

reasons to reopen the Waste Confidence 

Decision; but the Commission, in any 

event, had already decided to revisit its 

decision before DOE filed its motion to 

withdraw. 

The initial decision to revisit the 

Waste Confidence Decision was 

supported by the recommendations of 

the Combined License Review Task 

Force Report. In its June 22, 2007 SRM 

on that report, the Commission 

approved rulemaking to resolve generic 

issues associated with combined license 

applications. SRM–COMDEK–07–0001/ 

COMJSM–07–0001—Report of the 

Combined License Review Task Force 

(ADAMS Accession Number 

ML071760109). In a subsequent SRM, 

issued on September 7, 2007, the 

Commission expressed the view that a 

near-term update to the Waste 

Confidence Findings was appropriate. 

SRM—Periodic Briefing on New Reactor 

Issues (ADAMS Accession Number 

ML072530192). The staff, in its response 

to these SRMs, recognized that there 

would likely be long-term inefficiencies 

in combined license application 

proceedings due to the need to respond 

to potential questions and petitions 

directed to the existing Waste 

Confidence Decision and committed to 

evaluate possible updates to the 

decision.25 See Memorandum from Luis 

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or regulation * * * would not serve the purposes 

for which the rule or regulation was adopted.’’ Id. 

Thus, a review of the Waste Confidence findings 

and rule now might be expected to obviate such 

challenges in individual COL proceedings. 

A. Reyes, Executive Director for 

Operations, to the Commissioners, 

‘‘Rulemakings that Will Provide the 

Greatest Efficiencies to Complete the 

Combined License Application Reviews 

in a Timely Manner,’’ December 17, 

2007, at 3 (ADAMS Accession Number 

ML073390094). 

Based upon these and more recent 

developments, undertaking a public 

rulemaking proceeding now to consider 

revisions to the Waste Confidence 

Decision and Rule is appropriate and 

has allowed sufficient time to conduct 

a studied and orderly reassessment and 

to revise and update the findings and 

rule. In particular, the Commission has 

been able to consider alternative time 

frames (including no specific time 

frame) that would provide reasonable 

assurance for the availability of a 

repository. Further, the Commission 

does not believe that any of the 

developments since it issued its 

proposed update and proposed rule 

would require it to revise any of its 

proposed findings—the alternative to 

proposed Finding 2 that the 

Commission approves in this update to 

the Waste Confidence Decision was 

proposed as part of the initial proposed 

rulemaking and update (73 FR 59561; 

October 9, 2008). Although none of the 

developments in the last year requires 

the Commission to revise any of the 

proposed findings, the Commission 

does believe that recent developments 

make it imprudent to continue to 

include a target date in Finding 2. 

Therefore, as discussed in the response 

to Comment 9, the Commission has 

decided to remove the target date from 

Finding 2 and to express its confidence 

that a repository will be available when 

necessary. The proposed findings 

assumed that YM would not be built 

and that DOE would have to select a 

new repository site. The proposal to 

eliminate the YM project simply 

reinforces the appropriateness of 

revisiting the 1990 decision at this time. 

In response to developments 

involving YM, as well as for other 

reasons, the Secretary of Energy 

appointed the Blue Ribbon Commission 

on America’s Nuclear Future to assess 

the state of SNF storage and disposal in 

the United States. Because of the 

decades of scientific studies supporting 

the use of a geologic repository for the 

disposal of HLW and SNF, the 

Commission believes that the Blue 

Ribbon Commission could conclude 

that geologic disposal remains the 

preferred course of action. Further, the 

NWPA still mandates a national 

repository program, and until the law is 

changed disposal in a repository 

remains the controlling policy. But if 

the Blue Ribbon Commission were to 

recommend an option that does not 

involve eventual geologic disposal of 

waste in a repository and the Congress 

were to amend the NWPA to change the 

national policy, then the Commission 

would likely have to revisit the Waste 

Confidence Decision. 

One possible approach to revising 

Finding 2 might be to set the expected 

availability of a new repository at a time 

around 25 years after the conclusion of 

the YM licensing process in accordance 

with DOE’s 1990 estimate of the time it 

would take to make a repository 

available at a different site. But the 

Commission rejected this approach 

when denying the Nevada petition: 

[T]he use of a Commission acceptability 

finding as the basis for repository availability 

is impossible to implement because it would 

require the Commission to prejudge the 

acceptability of any alternative to Yucca 

Mountain in order to establish a reasonably 

supported outer date for the Waste 

Confidence finding. That is, if the 

Commission were to assume that a license for 

the Yucca Mountain site might be denied in 

2015 and establish a date 25 years hence for 

the ‘‘availability’’ of an alternative repository 

(i.e., 2040), it would still need to presume the 

‘‘acceptability’’ of the alternate site to meet 

that date (70 FR 48333; August 17, 2005). 

Another approach, which the 

Commission included in its proposed 

Finding 2, would be to revise the 

finding to include a target date or time 

frame for which it now seems 

reasonable to assume that a repository 

would be available. A target date for 

when a disposal facility can reasonably 

be expected to be available would result 

from an examination of the technical 

and institutional issues that would need 

to be resolved before a repository could 

be available. The target date approach 

would be consistent with the HLW 

disposal programs in other countries, as 

explained below. 

But the Commission has concerns 

about the use of this approach and has 

not adopted it. A target date requires the 

Commission to have reasonable 

assurance of when a repository will 

become available, and without the 

resolution of the political and societal 

issues associated with the siting and 

construction of a repository, the 

Commission cannot reasonably predict 

that a repository can and will become 

available within a specific time frame. 

The Commission does, however, believe 

that a repository can be constructed 

within 25–35 years of a Federal decision 

to construct a repository. Further, given 

the ongoing activities of the BlueRibbon Commission, 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 highlevel waste. In other words, a repository 

will be available when necessary. 

It must be emphasized that the 

removal of a target date from Finding 2 

should not be interpreted as a 

Commission endorsement of indefinite 

storage. Instead, the Commission has 

confidence that the SNF and HLW can 

continue to be safely stored without 

significant environmental impacts for at 

least 60 years beyond the licensed life 

for operation of any nuclear power 

plant. The Commission is therefore 

amending Finding 2 to state that a deep 

geologic repository will be available 

when necessary. 

This change to Finding 2 does not 

affect the Commission’s confidence that 

spent fuel can be safely stored with 

minimal environmental impacts. This 

revision reflects the Commission’s 

inability to predict with precision when 

the societal and political uncertainties 

associated with the construction of a 

repository can be resolved; the 

Commission is unwilling to predict a 

starting point for a new repository 

program—the time to complete a 

repository program remains unchanged 

from the discussion in the proposed 

rule. As discussed below, the 

Commission continues to have 

confidence that a deep geologic disposal 

facility can be completed within a 

reasonable time (25–35 years) and that 

disposal capacity for HLW and SNF will 

be available when necessary. 

Most countries possessing HLW and 

SNF plan to eventually confine these 

wastes using deep geologic disposal. 

Currently, there are 24 other countries 

considering disposal of spent or 

reprocessed nuclear fuel in deep 

geologic repositories. From the vantage 

point of near-term safety, there has been 

little urgency in these countries for 

implementing disposal facilities because 

of the perceived high degree of safety 

provided by interim storage, either at 

reactors or at independent storage 

facilities. Of these 24 countries, 10 have 

established target dates for the 

availability of a repository. Most of the 

14 countries that have not established 

target dates rely on centralized interim 

storage, which may include a protracted 

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26The three countries with target dates that plan 

direct disposal of SNF are: Czech Republic (2050), 

Finland (2020), and Sweden (2025). The seven 

countries with target dates for disposal of 

reprocessed SNF and HLW are: Belgium (2035), 

China (2050), France (2025), Germany (2025), Japan 

(2030s), Netherlands (2013), Switzerland (2042). 

27These countries are: Brazil, Canada, Hungary, 

Lithuania, Romania, South Korea, Slovak Republic, 

Spain (direct disposal of SNF); Bulgaria, India, 

Italy, Russia, United Kingdom, Ukraine (disposal of 

reprocessed SNF and HLW). 

28Both NRC’s 10 CFR part 63 and EPA’s 40 CFR 

part 197 are applicable only for a repository at YM. 

NRC and EPA have in place standards for a 

repository at a different site, but these standards 

would likely be revised in a new repository 

program. 

period of onsite storage before shipment 

to a centralized facility.26

Unlike these other countries, recent 

events in the United States (e.g., the 

DOE’s motion to withdraw the YM 

application and the current 

Administration’s decision to seek no 

funding for the YM Program) have not 

diminished the Commission’s 

confidence that a repository is 

technologically feasible, but have 

diminished its confidence in the targetdate approach. The Commission now 

believes that there is insufficient 

support for the continued use of a target 

date because of the difficulty associated 

with predicting the start-date for any 

repository program. The Commission is 

therefore adopting the position 

regarding the removal of a target date 

proposed in the ‘‘Additional Question 

for Public Comment’’ section of the 

proposed update (73 FR 59567; October 

9, 2008). The Commission is revising 

Finding 2 to state that it has reasonable 

assurance that disposal capacity in a 

deep geologic repository will become 

available ‘‘when necessary.’’ Although 

the Commission has declined to set a 

target date for the availability of a 

repository, it does believe that it would 

be beneficial to analyze the time 

required to successfully site, license, 

construct, and open a repository. 

The technical problems should be the 

same as those examined in the earlier 

Waste Confidence reviews, namely, how 

long it would take DOE to locate a 

suitable site and how long it would take 

to develop a waste package and 

engineered barriers for that site. For the 

reasons explained in the evaluation of 

Finding 1, the Commission continues to 

have reasonable assurance that disposal 

in a geologic repository is technically 

feasible. That is the approach being 

taken in all the countries identified 

previously that have set target dates for 

the availability of a repository. It is also 

the approach of the 14 other countries 

that have HLW disposal programs but 

have not set target dates.27 These target 

dates can be used to provide a 

reasonable idea of how much time is 

required to site, license, construct, and 

open a repository. In addition, when 

Congress amended the Nuclear Waste 

Policy Act in 1987 to focus exclusively 

on the YM site, it did so for budgetary 

reasons and not because the other sites 

DOE was considering were technically 

unacceptable. The ongoing research in 

the U.S. and other countries strongly 

suggests that many acceptable sites exist 

and can be identified. 

The amount of time DOE might need 

to develop an alternative repository site 

would depend upon any enabling 

legislation, budgetary constraints, and 

the degree of similarity between a 

candidate site and other wellcharacterized sites with similar HLW 

disposal concepts. DOE began 

characterization of the YM site in 1982, 

made its suitability determination in 

2002, and submitted a license 

application in 2008. But the history of 

potential repository development at YM 

may be a poor indicator of the amount 

of time needed to develop a new 

repository. Many problems extraneous 

to site characterization activities 

adversely affected DOE’s repository 

program, such as changes in enabling 

legislation, public confidence issues, 

funding, and a significant delay in 

issuing environmental standards. In 

terms of the technical work alone, much 

would depend on whether Congress 

establishes a program involving 

characterization of many sites 

preliminary to the recommendation of a 

single site (similar to the 1982 NWPA) 

or a program focused on a single site 

(similar to the amended NWPA). The 

former would likely take longer, but 

might have a better chance of success if 

problems develop with a single site. The 

time needed to characterize the sites 

would also depend on whether the one 

or more sites chosen for characterization 

are similar to sites in this or other 

countries, which would allow DOE to 

use already existing knowledge and 

research to increase the efficiency of its 

repository program. 

Alternatively, the sites could present 

novel challenges, which would require 

more time than sites that are similar to 

those that have already been studied. 

There are also many ‘‘lessons learned’’ 

from the YM repository program that 

could help to shorten the length of a 

new program. For example, performance 

assessment techniques have 

significantly improved over the past 20 

years (e.g., the Goldsim software 

package of DOE’s Total System 

Performance Assessment that replaced 

the original FORTRAN based software); 

performance assessment models are 

now easier to develop and more reliable 

than those that were available 20 years 

ago. Similarly, operational and 

manufacturing techniques developed 

during the YM program (e.g., 

manufacturing of waste packages, 

excavation of drifts, waste handling), 

would be applicable to another program. 

Regulatory issues considered during the 

YM program (e.g., burn-up credit for 

nuclear fuel and seismic performance 

analysis) should provide useful 

information for setting new standards or 

revising current standards.28 Finally, 

the experience gained by completing the 

NRC licensing process, if that were to 

occur, should help the DOE and the 

NRC improve the licensing process for 

any future repositories. 

Whether waste package and 

engineered barrier information 

developed during the YM repository 

program would be transferable to a new 

program depends on the degree of 

similarity between an alternative site 

and YM. The fundamental physical 

characteristics of Yucca Mountain are 

significantly different from other 

potential repository sites that were 

considered in the U.S. repository 

program before 1987. DOE could select 

an alternative candidate site that is 

similar to YM in important physical 

characteristics (such as oxidizing 

conditions, drifts above the water table 

with low amounts of water infiltration, 

water chemistry buffered by volcanic 

tuff rocks). In this instance, much of the 

existing knowledge for engineered 

barrier performance at YM might be 

transferable to a different site. 

Nevertheless, much of DOE’s current 

research on engineered barriers for YM 

could be inapplicable if an alternative 

site has significantly different 

characteristics from the YM site, such as 

an emplacement horizon in reducing 

conditions below the water table. In this 

instance, research from other DOE, 

industry, or international programs 

might provide important information on 

engineered barriers, provided the new 

site is analogous to sites and engineered 

barriers being considered elsewhere. 

But broader institutional issues have 

emerged since 1990 that bear on the 

time it takes to implement geologic 

disposal. International developments 

have made it clear that technical 

experience and confidence in geologic 

disposal, on their own, are not sufficient 

to bring about the broad social and 

political acceptance needed to construct 

a repository. It is these issues that have 

caused the Commission to remove a 

target date as part of the revised Finding 

2. As stated above, the Commission 

continues to have confidence that a 

repository can be constructed within 

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25–35 years of a Federal decision to do 

so and that a repository will become 

available when one is necessary. 

As part of its evaluation of this 

finding, the Commission evaluated the 

programs in a number of other countries 

that support its conclusion that a 

repository will be available when 

necessary and that siting, licensing, 

construction, and operation can occur 

within 25–35 years of a Federal decision 

to do so. 

In 1997, the United Kingdom rejected 

an application for the construction of a 

rock characterization facility at 

Sellafield, leaving the country without a 

path forward for long-term management 

or disposal of either intermediate-level 

waste or SNF. In 1998, an inquiry by the 

UK House of Lords endorsed geologic 

disposal, but specified that public 

acceptance was required. As a result, 

the UK Government embraced a 

repository plan based on the principles 

of voluntarism and partnership between 

communities and implementers. This 

led to the initiation of a national public 

consultation, and major structural 

reorganization within the UK program. 

The UK Nuclear Decommissioning 

Authority envisions availability of a 

geologic disposal facility for ILW in 

2040 and a geologic facility for SNF and 

HLW in 2075. In 2007, however, the 

Scottish Government officially rejected 

any further consultation with the UK 

Government on deep geologic disposal 

of HLW and SNF. This action by the 

Scottish Government effectively ends 

more than 7 years of consultations with 

stakeholders near Scottish nuclear 

installations and represents yet another 

major setback for the UK program. 

In Germany, a large salt dome at 

Gorleben had been under study since 

1977 as a potential SNF repository. 

After decades of intense discussions and 

protests, the utilities and the 

government reached an agreement in 

2000 to suspend exploration of Gorleben 

for at least three, and at most ten, years. 

In 2003, the Federal Ministry for the 

Environment set up an interdisciplinary 

expert group to identify, with public 

participation, criteria for selecting new 

candidate sites. In October, 2010 

Germany resumed exploration of 

Gorleben as a potential SNF repository. 

A decision on whether the site is 

suitable for a repository could be 

reached in 2015. 

Initial efforts in France, during the 

1980s, also failed to identify potential 

repository sites, using solely technical 

criteria. Failure of these attempts led to 

the passage of nuclear waste legislation 

that prescribed a period of 15 years of 

research. Reports on generic disposal 

options in clay and granite media were 

prepared and reviewed by the safety 

authorities in 2005. In 2006, 

conclusions from the public debate on 

disposal options, held in 2005, were 

published. Later that year, the French 

Parliament passed new legislation 

designating a single site for deep 

geologic disposal of intermediate and 

HLW. This facility, to be located in the 

Bure region of northeastern France, is 

scheduled to open in 2025, some 34 

years after passage of the original 

Nuclear Waste Law of 1991. 

In Switzerland, after detailed site 

investigations in several locations, the 

Swiss National Cooperative for 

Radioactive Waste Disposal proposed, 

in 1993, a deep geologic repository for 

low- and intermediate-level waste at 

Wellenberg. Despite a 1998 finding by 

Swiss authorities that technical 

feasibility of the disposal concept was 

successfully demonstrated, a public 

cantonal referendum rejected the 

proposed repository in 2002. Even after 

more than 25 years of high quality field 

and laboratory research, Swiss 

authorities do not expect that a deep 

geologic repository will be available 

before 2040. 

In 1998, an independent panel 

reported to the Governments of Canada 

and Ontario on its review of Atomic 

Energy of Canada Ltd.’s concept of 

geologic disposal. Canadian Nuclear 

Fuel Waste Disposal Concept 

Environmental Assessment Panel, 

Report of the Nuclear Fuel Waste 

Management and Disposal Concept 

Environmental Assessment Panel, 

February 1998. The panel found that 

from a technical perspective, safety of 

the concept had been adequately 

demonstrated, but from a social 

perspective, it had not. The panel 

concluded that broad public support is 

necessary in Canada to ensure the 

acceptability of a concept for managing 

nuclear fuel wastes. The panel also 

found that technical safety is a key part, 

but only one part, of acceptability. To be 

considered acceptable in Canada, the 

panel found that a concept for managing 

nuclear fuel wastes must: (1) Have broad 

public support; (2) be safe from both a 

technical and social perspective; (3) 

have been developed within a sound 

ethical and social assessment 

framework; (4) have the support of 

Aboriginal people; (5) be selected after 

comparison with the risks, costs, and 

benefits of other options; and (6) be 

advanced by a stable and trustworthy 

proponent and overseen by a 

trustworthy regulator. Resulting 

legislation mandated a nationwide 

consultation process and widespread 

organizational reform. Eight years later, 

in 2005, a newly-created Nuclear Waste 

Management Organization (NWMO), 

recommended an Adaptive Phased 

Management approach for long-term 

care of Canada’s SNF, based on the 

outcomes of the public consultation. 

This approach includes both a technical 

method and a new management system. 

According to NWMO, it ‘‘provides for 

centralized containment and isolation of 

used nuclear fuel deep underground in 

suitable rock formations, with 

continuous monitoring and opportunity 

for retrievability; and it allows 

sequential and collaborative decisionmaking, providing the flexibility to 

adapt to experience and societal and 

technological change.’’ NWMO, 

Choosing a Way Forward: The Future 

Management of Canada’s Used Nuclear 

Fuel, Final Study Report, November 

2005. 

In 2007, the Government of Canada 

announced its selection of the Adaptive 

Phased Management approach and 

directed NWMO to take at least two 

years to develop a ‘‘collaborative 

community-driven site-selection 

process.’’ NWMO will use this process 

to open consultations with citizens, 

communities, Aboriginals, and other 

interested parties to find a suitable site 

in a willing host community. For 

financial planning and cost estimation 

purposes only, NWMO assumes the 

availability of a deep geological 

repository in 2035, 27 years after 

initiating development of new site 

selection criteria, 30 years after 

embarking on a national public 

consultation, and 37 years after rejection 

of the original geologic disposal 

concept. NWMO, Annual Report 2007: 

Moving Forward Together, March 2008. 

In 2009, NWMO proposed a site 

selection process for public comment, 

and after considering the comments and 

input received is now welcoming 

expressions of interest from potential 

host communities. NWMO, Annual 

Report 2009: Moving Forward Together, 

March 2010. 

Repository development programs in 

Finland and Sweden are further along 

than in other countries, but have 

nonetheless taken the time to build 

support from potential host 

communities. In Finland, preliminary 

site investigations started in 1986, and 

detailed characterizations of four 

locations were performed between 1993 

and 2000. In 2001, the Finnish 

Parliament ratified the Government’s 

decision to proceed with a repository 

project at a chosen site only after the 

1999 approval by the municipal council 

of the host community. Finland expects 

this facility to begin receipt of SNF for 

disposal in 2020, 34 years after the start 

of preliminary site investigations. 

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81066 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

29Based on the inventory of SNF in nuclear 

power plant pools and interim storage facilities, the 

amount of spent fuel is anticipated to exceed the 

70,000 MTHM disposal limit in the NWPA by 2010. 

See The Report to the President and the Congress 

by the Secretary of Energy on the Need for a Second 

Repository, DOE/RW–0595, December 2008. 

Therefore, a new repository program would need to 

remove this limit or provide for more than one 

repository. 

30Seven of the licenses that will expire between 

2021 and 2030 are renewed licenses (Dresden 2, 

Ginna, Nine Mile Point 1, Robinson 2, Point Beach 

1, Monticello, and Oyster Creek). Fifty-two other 

reactor operating licenses have been renewed and 

the renewed licenses will expire after 2030. 

Between 1993 and 2000, Sweden 

conducted feasibility studies in eight 

municipalities. Based on technical 

considerations, one site was found 

unsuitable for further study, and two 

sites, based on municipal referenda, 

decided against allowing further 

investigations. Three of the remaining 

five sites were selected for detailed site 

investigations. Municipalities adjacent 

to two of these sites agreed to be 

potential hosts and one refused. 

On June 3, 2009, the Swedish Nuclear 

Fuel and Waste Management Company, 

SKB, selected a site near Oesthammer as 

the site for the final repository for 

disposal of Swedish SNF. Since 2007, 

detailed site investigations were 

conducted at both Oesthammer and 

Oskarshamn, both of which already host 

nuclear power stations. All Swedish 

spent fuel will be disposed of in the 

Oesthammer repository. It will be 

located at a depth of 500 meters, in 

crystalline bedrock that is relatively dry 

with few fractures. SKB plans to submit 

a license application in March 2011, 

along with an Environmental Impact 

Assessment and safety analysis. A 

government decision is expected in 

2015. If Swedish authorities authorize 

construction, the repository could be 

available for disposal around 2025, 

some 30 years after feasibility studies 

began. 

Before DOE can start the development 

of a new site, Congress may need to 

provide additional direction, beyond the 

current NWPA, for the long-term 

management and disposal of SNF and 

HLW. Whatever approach Congress 

mandates, international experience 

since 1990 would appear to suggest that 

greater attention may need to be paid to 

developing societal and political 

acceptance in concert with essential 

technical, safety, and security 

assurances. While there is no technical 

basis for making precise estimates of the 

minimum time needed to accomplish 

these objectives, examination of the 

international examples cited previously 

would support a range of between 25 

and 35 years. The Commission believes 

that societal and political acceptance 

must occur before a successful 

repository program can be completed, 

and that this is unlikely to occur until 

a Federal decision is made, whether for 

technical, environmental, political, 

legal, or societal reasons, that will allow 

the licensing and construction of a 

repository to proceed. 

Another important institutional issue 

is whether funding for a new repository 

program is likely to be available. The 

provisions of NWPA for funding the 

repository have proved to be adequate 

for the timely development of a 

repository in the sense that there have 

always been more than sufficient funds 

available to meet the level of funding 

Congress appropriates for the repository 

program. Section 302(e)(2) of NWPA 

provides that the Secretary of Energy 

may make expenditures from the 

Nuclear Waste Fund (NWF), subject to 

appropriations by the Congress. In her 

July 27, 2010 statement to the 

Committee on the Budget, Kristina M. 

Johnson, Undersecretary of Energy, 

testified that the NWF has a balance of 

approximately $25 billion. Thus, the 

NWF has the capacity to ensure timely 

development of a repository consistent 

with Congressional funding direction. 

Moreover, DOE has prepared updated 

contracts and a number of utility 

companies have signed contracts with 

the Department that provide for 

payment into the NWF (See, e.g., 

ADAMS Accession Numbers 

ML100280755 and ML083540149). 

Therefore, there will be a source of 

funding for disposal of the fuel to be 

generated by these reactors. 

Arriving at an estimate of the time 

necessary to successfully construct a 

repository involves considering the 

technical and institutional factors 

discussed previously. It appears that the 

technical work needed to make a 

repository available could be done in 

less time than it took DOE to submit a 

license application for the YM site (26 

years measured from the beginning of 

site characterization). But as discussed 

previously, the time needed to develop 

societal and political acceptance of a 

repository might range between 25 and 

35 years. Therefore, once a decision is 

made that it is necessary to construct a 

repository, it is likely that a repository 

could be sited, licensed, constructed, 

and in operation within 25–35 years. 

Finding 2, as adopted in 1990, also 

predicts 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 HLW and SNF 

originating in such reactor and 

generated up to that time. As explained 

previously, in 1990 DOE projected that 

87,000 MTHM would be generated by 

2036. Given the statutory limit of 70,000 

MTHM for the first repository, either 

statutory relief from that limit or a 

second repository would be needed. The 

Commission’s continued confidence 

that sufficient repository capacity would 

be available within 30 years of license 

expiration of all reactors rested on an 

assumption that two repositories would 

be available in approximately 2025 and 

2035, each with acceptance rates of 

3400 MTHM/year within several years 

after commencement of operations (See 

55 FR 38502; September 18, 1990). DOE 

acknowledged that a second repository, 

or an expansion of the statutory disposal 

limit for a single repository, would be 

necessary to accommodate all the spent 

fuel from the currently operating and 

future reactors. The Report to the 

President and the Congress by the 

Secretary of Energy on the need for a 

second repository, 1, (2008), available at 

http://brc.gov/library/docs/Second_

Repository_Rpt_120908.pdf (last visited 

September 17, 2010). 

The revision to Finding 2 in this 

update to the Waste Confidence 

Decision reflects the Commission’s 

concern that it may no longer be 

possible to have reasonable assurance 

that sufficient repository space will be 

available within 30 years beyond the 

licensed life for operation (which may 

include the term of a revised or renewed 

license).29 According to the 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 HighValue Datasets, http://www.nrc.gov/

public-involve/open.html#datasets (last 

visited October 8, 2010). Many of these 

licenses could be renewed, which 

would extend their operating lifetimes, 

but this cannot be assumed.30 For 

licenses that are not renewed, some 

spent fuel will need to be stored for 

more than 30 years beyond the 

expiration of the license if a repository 

is not available until after 2025. There 

are 23 reactors that were formerly 

licensed to operate by the NRC or the 

AEC and have been permanently shut 

down. Id. Thirty years beyond their 

licensed life of operation will come as 

early as 2029 for Dresden 1 and as late 

as 2056 for Millstone 1; but for many of 

these plants, 30 years beyond the 

licensed life for operation will occur in 

the 2030s and 2040s. Given the time 

necessary to successfully complete a 

repository program—25–35 years—and 

the uncertainty surrounding the start 

date of this program, it is likely that 

spent fuel will have to be stored beyond 

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31 10 CFR Part 72 was, in fact, amended to 

provide for storage of spent fuel in NRC-certified 

casks under a general license (55 FR 29191; July 18, 

1990). 

32These reactor sites include Maine Yankee, 

Yankee Rowe, Connecticut Yankee (also known as 

Haddam Neck), and Big Rock Point. 

33There are several additional sites with specific 

Part 72 ISFSI licenses that are in the process of 

decommissioning (e.g., Humbolt Bay, Rancho Seco). 

30 years after the expiration of the 

license at a number of these plants. 

In 1990, the Commission emphasized 

that this 30 year period did not establish 

a safety limit on the length of SNF and 

HLW storage. It was only an estimate of 

how long SNF might need to be stored 

given the Commission’s confidence that 

repository disposal would be available 

by 2025. In fact, the Commission said it 

was not concerned about the fact that it 

was already clear in 1990 that a few 

reactors would need to store spent fuel 

onsite beyond 30 years after the 

effective expiration date of their licenses 

(i.e., the date the license prematurely 

terminated) due to its confidence in the 

safety of spent fuel storage (55 FR 

38503; September 18, 1990). For the 

reasons presented in the evaluation of 

Finding 4, the Commission is now able 

to conclude that there is no public 

health and safety or environmental 

concern if the availability of a disposal 

facility results in the need to store fuel 

at some reactors for 60 years after 

expiration of the license or even longer. 

If the Commission had not already 

issued a proposed rule and update to 

the Waste Confidence Decision, then the 

Administration’s proposed budget and 

plan to terminate the YM project and 

DOE’s filing of a motion to withdraw 

would likely have forced it to do so. The 

Commission’s proposed update to the 

Waste Confidence Decision, although it 

could not consider these yet-to-occur 

developments, did assume that YM 

would not be built and that DOE would 

have to search for another repository 

location, which now appears quite 

possible. 

The Commission has, in sum, 

reconsidered the use of a target date 

and, as discussed above, has elected to 

remove the target date from Finding 2 

and adopt a finding that deep geologic 

disposal will be available ‘‘when 

necessary.’’ This change adopts the 

alternative approach presented in the 

proposed update to the Waste 

Confidence Decision to revise Finding 2 

without reference to a time frame for the 

availability of a repository (73 FR 59561; 

October 9, 2008). As discussed in the 

proposed update, this revision to 

Finding 2 is based both on the 

Commission’s understanding of the 

technical issues involved and on 

predictions of the time needed to bring 

about the necessary societal and 

political acceptance for a repository site. 

Id. 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. 

Based on the above information and 

consideration of the public comments, 

the Commission revises Finding 2 to 

eliminate its expectation that a 

repository will be available within the 

first quarter of the twenty-first century 

and to state that a repository may 

reasonably be expected to be available 

when necessary. 

C. 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. 

III. Finding 3: The Commission Finds 

Reasonable Assurance That HLW and 

Spent Fuel Will Be Managed in a Safe 

Manner Until Sufficient Repository 

Capacity Is Available To Assure the 

Safe Disposal of all HLW and Spent 

Fuel 

A. Bases for Finding 3 

The Commission reached this finding 

in 1984 and reaffirmed it in 1990. This 

finding focuses on whether reactor 

licensees can be expected to safely store 

their spent fuel in the period between 

the cessation of reactor operations and 

the availability of repository capacity for 

their fuel. The Commission found that 

the spent fuel would be managed safely 

because, under either a possession-only 

10 CFR part 50 license or a 10 CFR part 

72 license, the utility would remain 

under the NRC’s regulatory control and 

inspections and oversight of storage 

facilities would continue (49 FR 34679– 

34680; August 31, 1984, 55 FR 38508; 

September 18, 1990). In 1990, when 

extended storage at the reactor site 

seemed more probable, the Commission 

noted that 10 CFR part 72 allowed for 

license renewals and that the NRC was 

considering issuance of a general 10 

CFR part 72 license under which spent 

fuel could be stored in NRC-certified 

casks (55 FR 38508; September 18, 

1990).31 The Commission reasoned that 

these regulations would provide 

additional NRC supervision of spent 

fuel management. The Commission was 

not concerned about then-looming 

contractual disputes between the DOE 

and the utilities over the DOE’s inability 

to remove spent fuel from reactor sites 

in 1998 because NRC licensees cannot 

abandon, and remain responsible for, 

spent fuel in their possession (55 FR 

38508; September 18, 1990). 

The Commission also considered the 

unusual case where a utility was unable 

to manage its spent fuel. If a utility were 

to become insolvent, the Commission 

believes that the cognizant state public 

utility commission would require an 

orderly transfer to another entity, which 

could be accomplished if the new entity 

satisfied the NRC’s requirements (49 FR 

34680; August 31, 1984). Further, the 

Commission expressed the view that, 

while the possibility of a need for 

Federal action to take over stored spent 

fuel from a defunct utility or from a 

utility that lacked technical competence 

to assure safe storage was remote, the 

authority for this type of action exists in 

sections 186c and 188 of the Atomic 

Energy Act. Id. 

B. Evaluation of Finding 3 

As explained above, the focus of 

Finding 3 is on whether reactor 

licensees can be expected to safely store 

their spent fuel in the period between 

the cessation of reactor operations and 

the availability of repository capacity for 

their fuel. In this regard, the NRC is 

successfully regulating four 

decommissioned reactor sites that 

continue to hold 10 CFR part 50 licenses 

and consist only of an ISFSI under the 

10 CFR part 72 general license 

provisions.32 In addition, the NRC staff 

has discussed plans to build and operate 

ISFSIs under the 10 CFR part 72 general 

license provisions with the licensees at 

the La Crosse and Zion plants, which 

are currently undergoing 

decommissioning. The La Crosse plant 

plans to load its ISFSI in July 2011 and 

the Zion plant is discussing its plans 

with the NRC staff. The NRC is also 

successfully regulating ISFSIs at two 

fully decommissioned reactor sites 

(Trojan and Ft. St. Vrain) under 10 CFR 

Part 72 specific licenses.33

The NRC monitors the performance of 

ISFSIs at decommissioned reactor sites 

by conducting periodic inspections that 

are identical to ISFSI inspections at 

operating reactor sites. When 

conducting inspections at these ISFSIs, 

NRC inspectors follow the guidance in 

NRC Inspection Manual Chapter 2690, 

‘‘Inspection Program for Dry Storage of 

Spent Reactor Fuel at Independent 

Spent Fuel Storage Installations and for 

10 CFR part 71 Transportation 

Packages.’’ At all six decommissioned 

reactor sites mentioned previously, all 

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81068 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

34Section 302 of NWPA authorizes the Secretary 

of Energy to enter into contracts with utilities 

generating HLW and SNF under which the utilities 

are to pay statutorily imposed fees into the NWF in 

return for which the Secretary, ‘‘beginning not later 

than January 31, 1998, will dispose of the [HLW] 

or [SNF] involved * * *.’’ 42 U.S.C. 10222(a)(5)(B). 

The NWPA also prohibits NRC from issuing or 

renewing a reactor operating license unless the 

prospective licensee has entered into a contract 

with DOE or is engaged in good-faith negotiations 

for a contract. 42 U.S.C. 10222(b)(1). When it 

became evident that a repository would not be 

available in 1998, DOE took the position that it did 

not have an unconditional obligation to accept the 

HLW or SNF in the absence of a repository. See 

Final Interpretation of Nuclear Waste Acceptance 

Issues (60 FR 21793; May 3, 1995). The U.S. Court 

of Appeals for the District of Columbia Circuit, 

however, held that DOE’s statutory and contractual 

obligation to accept the waste no later than January 

31, 1998, was unconditional. Indiana Michigan 

Power Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996). 

Subsequently, the utilities have continued to safely 

manage the storage of SNF in reactor storage pools 

and in ISFSIs and have received damage awards as 

determined in lawsuits brought before the U.S. 

Court of Federal Claims. See, e.g., System Fuels Inc. 

v. U.S., 78 Fed. Cl. 769 (October 11, 2007). 

spent fuel on site has been successfully 

loaded into the ISFSI; only those 

inspection procedures applicable to the 

existing storage configurations are 

conducted. Also, any generally licensed 

ISFSI where decommissioning and final 

survey activities related to reactor 

operations have been completed is 

treated as an ‘‘away from reactor’’ (AFR) 

ISFSI for inspection purposes. 

Therefore, those programs that rely 

upon a 10 CFR part 50 license for the 

operation of a generally licensed ISFSI 

are also subject to inspection. 

The NRC has not encountered any 

management problems associated with 

the ISFSIs at these six decommissioned 

reactor sites. Further, the NRC’s 

inspection findings have not found any 

unique management problems at any 

currently operating ISFSI. Generally, the 

types of issues identified through NRC 

inspections of ISFSIs are similar to 

issues identified for 10 CFR part 50 

licensees. Most issues are identified 

early in the operational phase of the dry 

cask storage process, during loading 

preparations and actual spent fuel 

loading activities. Once a loaded storage 

cask is placed on the storage pad, 

relatively few inspection issues are 

identified due to the passive nature of 

these facilities. 

Further, the NRC’s regulations require 

that every nuclear power reactor 

operating license issued under 10 CFR 

part 50 and every COL issued under 10 

CFR part 52 must contain a condition 

requiring each licensee to submit 

written notification to the Commission 

of the licensee’s plan for managing 

irradiated fuel between cessation of 

reactor operation and the time the DOE 

takes title to and possession of the 

irradiated fuel for ultimate disposal in a 

repository. The submittal, required by 

10 CFR 50.54(bb), must include 

information on how the licensee intends 

to provide funding for the management 

of its irradiated fuel. Specifically, 10 

CFR 50.54(bb) requires the licensee to: 

[W]ithin 2 years following permanent 

cessation of operation of the reactor or 5 

years before expiration of the reactor 

operating license, whichever occurs first, 

submit written notification to the 

Commission for its review and preliminary 

approval of the program by which the 

licensee intends to manage and provide 

funding for the management of all irradiated 

fuel at the reactor following permanent 

cessation of operation of the reactor until title 

to the irradiated fuel and possession of the 

fuel is transferred to the Secretary of Energy 

for its ultimate disposal * * *. Final 

Commission review will be undertaken as 

part of any proceeding for continued 

licensing under part 50 or 72 of this chapter. 

The licensee must demonstrate to NRC that 

the elected actions will be consistent with 

NRC requirements for licensed possession of 

irradiated nuclear fuel and that the actions 

will be implemented on a timely basis. 

Where implementation of such actions 

requires NRC authorizations, the licensee 

shall verify in the notification that submittals 

for such actions have been or will be made 

to NRC and shall identify them. A copy of 

the notification shall be retained by the 

licensee as a record until expiration of the 

reactor operating license. The licensee shall 

notify the NRC of any significant changes in 

the proposed waste management program as 

described in the initial notification. 

To date, the NRC has also renewed 

four specific 10 CFR part 72 ISFSI 

licenses. These renewals include the 

part 72 specific licenses for the General 

Electric Morris Operation (the only wet, 

or pool-type ISFSI), as well as the Surry, 

H.B. Robinson, and Oconee ISFSIs. 

Additionally, the NRC received a 

renewal application for the Fort St. 

Vrain ISFSI on November 23, 2009. 

Specific licenses for six additional 

ISFSIs will expire between 2012 and 

2020. It is expected that license 

renewals will be requested by these 

licensees, unless a permanent repository 

or some other interim storage option is 

made available. 

Although the NRC staff’s experience 

with renewal of ISFSI licenses is limited 

to these four cases, it is noteworthy that 

the Surry, H.B. Robinson and Oconee 

ISFSI licenses were renewed for a 

period of 40 years, instead of the 20-year 

renewal period currently provided for 

under 10 CFR part 72. The Commission 

authorized the staff to grant exemptions 

to allow the 40-year renewal period after 

the staff reviewed the applicants’ 

evaluations of aging effects on the 

structures, systems, and components 

important to safety. The Commission 

determined that the evaluations, 

supplemented by the licensees’ aging 

management programs, provide 

reasonable assurance of continued safe 

storage of spent fuel in these ISFSIs. See 

SECY–04–0175, ‘‘Options for 

Addressing the Surry Independent 

Spent Fuel Storage Installation LicenseRenewal Period Exemption Request,’’ 

September 28, 2004 (ADAMS Accession 

Number ML041830697). 

With regard to generally licensed 

ISFSIs, the NRC staff submitted a draft 

final rule to the Commission on May 3, 

2010, to clarify the processes for the 

renewal of ISFSIs operated under the 

general license provisions of 10 CFR 

part 72 and for renewal of the CoC for 

dry cask storage systems. See SECY 10– 

0056, ‘‘Final Rule: 10 CFR Part 72 

License and Certificate of Compliance 

Terms (RIN 3150–A109)’’ (ADAMS 

Accession Number ML100710052). 

There are currently nine sites operating 

generally licensed ISFSIs that will reach 

the prescribed 20-year limit on storage 

between 2013 and 2020. 

The Commission concludes that the 

events that have occurred since the last 

formal review of the Waste Confidence 

Decision in 1990 support a continued 

finding of reasonable assurance that 

HLW and spent fuel will be managed in 

a safe manner until sufficient repository 

capacity is available. Specifically, the 

NRC has continued its regulatory 

control and oversight of spent fuel 

storage at both operating and 

decommissioned reactor sites, through 

both specific and general 10 CFR part 72 

licenses. With regard to general 10 CFR 

part 72 licenses, the NRC has 

successfully implemented a general 

licensing and cask-certification 

program, as envisioned by the 

Commission in 1990. There are 

currently 16 certified spent fuel storage 

cask designs. 10 CFR 72.214 (2010). In 

addition, the Commission’s reliance on 

the license renewal process in its 1990 

review has proven well-placed, with 

three specific 10 CFR part 72 ISFSI 

licenses having been successfully 

renewed for an extended 40-year 

renewal period, and a fourth having 

been renewed for a period of 20 years. 

NRC licensees have continued to meet 

their obligation to safely store spent fuel 

in accordance with the requirements of 

10 CFR parts 50 and 72.34

Based on the above discussion, 

including its response to the public 

comments, the Commission reaffirms 

Finding 3. 

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35Subsequently, the Commission limited the 

renewal period for power reactor licenses to 20 

years beyond expiration of the operating license or 

combined license (10 CFR 54.31; 56 FR 64943, 

64964; December 13, 1991). 

IV. Finding 4 (1990): 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 Independent Spent 

Fuel Storage Installations 

A. Bases for Finding 4 

This finding focuses on the safety and 

environmental effects of long-term 

storage of spent fuel. In 1984, the 

Commission found that spent fuel can 

be stored safely and without significant 

environmental impacts for at least 30 

years beyond the expiration of reactor 

operating licenses (49 FR 34660; August 

31, 1984). In 1990, the Commission 

determined that if the reactor operating 

license were renewed for 30 years,35

storage would be safe and without 

environmental significance for at least 

30 years beyond the term of licensed 

operation for a total of at least 100 years 

(55 FR 38513; September 18, 1990). The 

Commission looked at four broad issues 

in making this finding: (1) The longterm integrity of spent fuel under water 

pool storage conditions, (2) the structure 

and component safety for extended 

facility operation for storage of spent 

fuel in water pools, (3) the safety of dry 

storage, and (4) the potential risks of 

accidents and acts of sabotage at spent 

fuel storage facilities (49 FR 34681; 

August 31, 1984; 55 FR 38509; 

September 18, 1990). 

With respect to the safety of water 

pool storage, the Commission found in 

1984 that research and experience in the 

United States, Canada, and other 

countries confirmed that long-term 

storage could be safely undertaken (49 

FR 34681–34682; August 31, 1984). In 

1990, the Commission determined that 

experience with water storage of spent 

fuel continued to confirm that pool 

storage is a benign environment for 

spent fuel that does not lead to 

significant degradation of spent fuel 

integrity and that the water pools in 

which the assemblies are stored will 

remain safe for extended periods. 

Further, degradation mechanisms are 

well understood and allow time for 

appropriate remedial action (55 FR 

38509–38511; September 18, 1990). In 

sum, based on both experience and 

scientific studies, the Commission 

found wet storage to be a fullydeveloped technology with no 

associated major technical problems. 

In 1984, the Commission based its 

confidence in the safety of dry storage 

on an understanding of the material 

degradation processes, derived largely 

from technical studies, together with the 

recognition that dry storage systems are 

simple and easy to maintain (49 FR 

34683–34684; August 31, 1984). By 

1990, the NRC and ISFSI licensees had 

considerable experience with dry 

storage. NRC staff safety reviews of 

topical reports on storage system 

designs, the licensing and inspection of 

dry storage at two reactor sites under 10 

CFR part 72, and the NRC’s 

promulgation of an amendment to 10 

CFR part 72 that incorporated a 

monitored retrievable storage 

installation (MRS) (a dry storage facility) 

into the regulations confirmed the 1984 

conclusions on the safety of dry storage. 

In fact, under the environmental 

assessment for the amendment 

(NUREG–1092), the Commission found 

confidence in the safety and 

environmental insignificance of dry 

storage at an MRS for 70 years following 

a period of 70 years of storage in spent 

fuel storage pools (55 FR 38509–38513; 

September 18, 1990). 

The Commission also found that the 

risks of major accidents at spent fuel 

storage pools resulting in offsite 

consequences were remote because of 

the secure and stable character of the 

spent fuel in the storage pool 

environment and the absence of reactive 

phenomena—‘‘driving forces’’—that 

might result in dispersal of radioactive 

material. The Commission noted that 

storage pools and ISFSIs are designed to 

safely withstand accidents caused by 

either natural or man-made phenomena, 

and that, due to the absence of high 

temperature and pressure conditions, 

human error does not have the 

capability to create a major radiological 

hazard to the public (49 FR 34684– 

34685; August 31, 1984). By 1990, the 

NRC staff had spent several years 

studying catastrophic loss of reactor 

spent fuel pool water, which could 

cause a fuel fire in a dry pool and 

concluded that because of the large 

inherent safety margins in the design 

and construction of a spent fuel pool no 

action was needed to further reduce the 

risk (55 FR 38511; September 18, 1990). 

In 1984, the Commission recognized 

that the intentional sabotage of a storage 

pool was theoretically possible, but 

found that the consequences would be 

limited because, with the exception of 

some gaseous fission products, the 

radioactive content of spent fuel is in 

the form of solid ceramic material 

encapsulated in high-integrity metal 

cladding and stored underwater in a 

reinforced concrete structure (49 FR 

34685; August 31, 1984). Under these 

conditions, the Commission noted that 

the radioactive content of spent fuel is 

relatively resistant to dispersal to the 

environment. Similarly, because of the 

weight and size of the sealed protective 

enclosures, dry storage of spent fuel in 

dry wells, vaults, silos, and metal casks 

is also relatively resistant to sabotage 

and natural disasters. Id. Although the 

1990 decision examined several studies 

of accident risk, no considerations 

affected the Commission’s confidence 

that the possibility of a major accident 

or sabotage with offsite radiological 

impacts at a spent fuel storage facility is 

extremely remote (55 FR 38512; 

September 18, 1990). 

Finally, the Commission noted that 

the generation and onsite storage of 

more spent fuel as a result of reactor 

license renewals would not affect the 

Commission’s findings on 

environmental impacts. Finding 4 is not 

based on a determination of a specific 

number of reactors and amount of spent 

fuel; Finding 4 evaluates the safety of 

spent fuel storage and lack of 

environmental impacts overall. Further, 

individual license renewal actions are 

subject to separate safety and 

environmental reviews (55 FR 38512; 

September 18, 1990). 

B. Evaluation of Finding 4 

As discussed above, Finding 4 focuses 

on the safety and environmental 

significance of long-term storage of 

spent fuel. Specifically, the Commission 

examined four broad issues in making 

this finding: (1) The long-term integrity 

of spent fuel under water pool storage 

conditions; (2) the structure and 

component safety for extended facility 

operation for storage of spent fuel in 

water pools; (3) the safety of dry storage; 

and (4) the potential risks of accidents 

and acts of sabotage at spent fuel storage 

facilities. 

1. Storage in Spent Fuel Pools 

Since 1990, the NRC has continued its 

periodic examination of spent fuel pool 

storage to ensure that adequate safety is 

maintained and that there are no 

adverse environmental effects from the 

storage of spent fuel in pools. The Office 

of Nuclear Reactor Regulation (NRR) 

and the former Office for Analysis and 

Evaluation of Operational Data 

independently evaluated the safety of 

spent fuel pool storage, and the results 

of these evaluations were documented 

in a memorandum to the Commission 

dated July 26, 1996, ‘‘Resolution of 

Spent Fuel Storage Pool Action Plan 

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81070 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

36 In May 2008, the NRC staff completed an 

inspection at Indian Point Units 1 and 2. NRC 

Inspection Report Nos. 05000003/2007010 and 

05000247/2007010, May 13, 2008 (ADAMS 

Accession Number ML081340425). The purpose of 

the inspection was to assess Entergy’s site 

groundwater characterization conclusions and the 

radiological significance of Entergy’s discovery of 

spent fuel pool leaks at Units 1 and 2. The NRC staff 

concluded that Entergy’s response to the spent fuel 

pool leaks was reasonable and technically sound. 

The NRC staff stated that ‘‘[t]he existence of onsite 

groundwater contamination, as well as the 

circumstances surrounding the causes of leakage 

and previous opportunities for identification and 

intervention, have been reviewed in detail. Our 

inspection determined that public health and safety 

has not been, nor is likely to be, adversely affected, 

and the dose consequence to the public that can be 

attributed to current onsite conditions associated 

with groundwater contamination is negligible.’’ Id. 

Issues,’’ (ADAMS Accession Number 

ML003706364) and a separate 

memorandum to the Commission dated 

October 3, 1996, ‘‘Assessment of Spent 

Fuel Pool Cooling,’’ (ADAMS Accession 

Number ML003706381) (later published 

as NUREG–1275, Vol. 12, ‘‘Operating 

Experience Feedback Report: 

Assessment of Spent Fuel Cooling,’’ 

February 1997). As a result of these 

studies, the NRC staff and industry 

identified a number of follow-up 

activities that are described by the NRR 

staff in a memo to the Commission 

dated September 30, 1997, ‘‘Followup 

Activities on the Spent Fuel Pool Action 

Plan,’’ (ADAMS Accession Number 

ML003706412). These evaluations 

became part of the investigation of 

Generic Safety Issue 173, ‘‘Spent Fuel 

Pool Storage Safety,’’ which found that 

the relative risk posed by loss of spent 

fuel cooling is low when compared with 

the risk of events not involving the SFP. 

The safety and environmental effects 

of spent fuel pool storage were also 

addressed in conjunction with 

regulatory assessments of permanently 

shutdown nuclear plants and 

decommissioning nuclear power plants. 

NUREG/CR–6451, ‘‘A Safety and 

Regulatory Assessment of Generic BWR 

and PWR Permanently Shutdown 

Nuclear Power Plants,’’ (August 1997) 

addressed the appropriateness of 

regulations (e.g., requirements for 

emergency planning and insurance) 

associated with spent fuel pool storage. 

The study identified a number of 

regulations that apply only to an 

operating reactor and not to spent fuel 

storage. These regulations are not 

needed to ensure the safe maintenance 

of a permanently shutdown plant. The 

study also provided conservative 

bounding estimates of fuel coolability 

and offsite consequences for the most 

severe accidents, which involve 

draining of the spent fuel pool. 

More recently, the NRC issued 

NUREG–1738, ‘‘Technical Study of 

Spent Fuel Pool Accident Risk at 

Decommissioning Nuclear Power 

Plants,’’ (February 2001), which 

provides a newer and more robust 

analysis of the safety and environmental 

effects of spent fuel pool storage. This 

study provided the results of the NRC 

staff’s latest evaluation of the accident 

risk in a spent fuel pool at 

decommissioning plants. The report 

discussed fuel coolability for various 

types of accidents and included 

potential offsite consequences based on 

assumed radiation releases. The study 

demonstrated that by using conservative 

and bounding assumptions regarding 

the postulated accidents, the predicted 

risk estimates were below those 

associated with reactor accidents and 

well below the Commission’s safety 

goal. 

Following the terrorist attacks of 

September 11, 2001, the NRC undertook 

an extensive reexamination of spent fuel 

pool safety and security issues. This 

reexamination included a significantly 

improved methodology, based on 

detailed state-of-the-art analytical 

modeling, for assessing the response of 

spent fuel assemblies during security 

events including those that might result 

in draining of the spent fuel pool. This 

more detailed and realistic analytical 

modeling was also supported by 

extensive testing of zirconium oxidation 

kinetics in an air environment and full 

scale coolability and ‘‘zirc fire’’ testing of 

spent fuel assemblies. This effort both 

confirmed the conservatism of past 

analyses and provided more realistic 

analyses of fuel coolability and potential 

responses during accident or security 

event conditions. Importantly, the new 

more detailed and realistic modeling led 

to the development of improvements in 

spent fuel safety, which were required 

to be implemented at spent fuel pools 

by the Commission for all operating 

reactor sites. (See 73 FR 46204; August 

8, 2008). 

In 2003, the U.S. Congress asked the 

NAS to provide independent scientific 

and technical advice on the safety and 

security of commercial SNF storage, 

including the potential safety and 

security risks of SNF presently stored in 

cooling pools and dry casks at 

commercial nuclear reactor sites. In July 

2004, the NAS issued a classified 

report—a publicly available unclassified 

summary was made available in 2006 

(as noted above, 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). As part 

of the information gathering for the 

study, the NRC and Sandia National 

Laboratories briefed the NAS authoring 

committee on the ongoing work to 

reassess spent fuel pool safety and 

security issues. The NAS report 

contains findings and recommendations 

for reducing the risk of events involving 

spent fuel pools as well as dry casks. 

NRC Chairman Nils J. Diaz provided the 

Commission’s response to the NAS in a 

letter to Senator Pete V. Domenici, dated 

March 14, 2005 (ADAMS Accession 

Number ML050280428) (Diaz Letter). In 

essence, the NRC concluded, as a result 

of its own study and subsequent 

regulatory actions, that it had adopted 

the important recommendations of the 

report relevant to spent fuel pools. As a 

result of the improvements in spent fuel 

pool safety and security, and the 

inherent safety and robustness of spent 

fuel pool designs, the NRC concluded 

that the risk associated with security 

events at spent fuel pools is acceptably 

low. Because these safety improvements 

in spent fuel pool storage are applicable 

to non-security events (randomly 

initiated accidents), accident risk was 

also further reduced. 

While the Commission continues to 

have reasonable assurance that storage 

in spent fuel pools provides adequate 

protection of public health and safety 

and the common defense and security, 

and will not result in significant 

impacts on the environment, the NRC 

acknowledges several incidents of 

groundwater contamination originating 

from leaking reactor spent fuel pools 

and associated structures. In 1990, the 

Commission specifically acknowledged 

two incidents where radioactive water 

leaked from spent fuel pools, one of 

which resulted in contamination 

outside of the owner controlled area 

(See 55 FR 38511; September 18, 1990). 

The Commission addressed these events 

stating, ‘‘[t]he occurrence of operational 

events like these have been addressed 

by the NRC staff at the plants listed. The 

staff has taken inspection and 

enforcement actions to reduce the 

potential for such operational 

occurrences in the future.’’ Id. 

On March 10, 2006, the NRC 

Executive Director for Operations 

established the Liquid Radioactive 

Release Lessons Learned Task Force in 

response to incidents at several plants 

involving unplanned, unmonitored 

releases of radioactive liquids into the 

environment. Liquid Radioactive 

Release Lessons Learned Task Force 

Final Report, September 1, 2006 (Task 

Force Report) (ADAMS Accession 

Number ML062650312). One of the 

incidents that prompted formation of 

the Task Force involved leaks from the 

Unit 1 and 2 spent fuel pools at Indian 

Point.36 Task Force Report, at 1, 5–6, 11. 

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81071 

37 DG–4012 was formally issued as Regulatory 

Guide 4.21, ‘‘Minimization of Contamination and 

Radioactive Waste Generation: Life-Cycle Planning’’ 

in June 2008. 

38 In addition to the NRC’s efforts, the nuclear 

industry collectively responded to these incidents 

of unplanned, unmonitored releases of radioactive 

liquids through the Industry Initiative on 

Groundwater Protection. The Industry Initiative has 

resulted in publication of voluntary industry 

guidance on the implementation of groundwater 

protection programs at nuclear power plants. See 

‘‘Industry Ground Water Protection Initiative–Final 

Guidance Document,’’ NEI–07–07, August 2007 

(ADAMS Accession Number ML072610036); 

‘‘Groundwater Protection Guidelines for Nuclear 

Power Plants: Public Edition, EPRI, Palo Alto, CA: 

EPRI Doc. No. 1016099, 2008. 

The Task Force reviewed historical data 

on inadvertent releases of radioactive 

liquids, including four additional 

incidents involving leaks from spent 

fuel pools (Seabrook, Salem, Watts Bar, 

and Palo Verde). As a result of its 

review, the Task Force concluded that 

‘‘[b]ased on bounding dose calculations 

and/or actual measurements, the nearterm public health impacts have been 

negligible for the events at NRC-licensed 

operating power facilities discussed in 

this report.’’ Task Force Report, at 15. 

While concluding that near-term public 

health impacts from the leaks the NRC 

had investigated were negligible, the 

Task Force also recommended that 

measures be taken to avoid leaks in the 

future. The Task Force made 26 specific 

recommendations for improvements to 

the NRC’s regulatory programs 

concerning unplanned or unmonitored 

releases of radioactive liquids from 

nuclear power reactors. 

The NRC staff has addressed, or is in 

the process of addressing, the Task 

Force recommendations. See ‘‘Liquid 

Release Task Force Recommendations 

Implementation Status as of February 

26, 2008’’ (ADAMS Accession Number 

ML073230982) (Implementation Status). 

Actions taken in response to Task Force 

recommendations included revisions to 

several guidance documents, 

development of draft regulatory 

guidance on implementation of the 

requirements of 10 CFR 20.1406 (i.e. 

DG–4012),37 revisions to Inspection 

Procedure 71122.01, and an evaluation 

of whether further action was required 

to enhance the performance of SFP telltale drains.38

For example, Regulatory Guide 4.1 is 

being revised to provide guidance to 

industry for detecting, evaluating, and 

monitoring releases from operating 

facilities via unmonitored pathways; to 

ensure consistency with current 

industry standards and commercially 

available radiation detection 

methodology; to clarify when a 

licensee’s radiological effluent and 

environmental monitoring programs 

should be expanded based on data or 

environmental conditions; and to ensure 

that leaks and spills are detected before 

radionuclides migrate offsite via an 

unmonitored pathway. Also, Regulatory 

Guide 1.21 is being revised to provide 

a definition of ‘‘significant 

contamination’’ that should be 

documented in a licensee’s 

decommissioning records under 10 CFR 

50.75(g); to clarify how to report 

summaries of spills and leaks in a 

licensee’s Annual Radioactive Effluent 

Release Report; to provide guidance on 

remediation of onsite contamination; 

and to upgrade the capability and scope 

of the in-plant radiation monitoring 

system to include additional monitoring 

locations and the capability to detect 

lower risk radionuclides. Further, 

Inspection Procedure 71122.01 has been 

revised to provide for review of onsite 

contamination events, including events 

involving groundwater; evaluation of 

effluent pathways so that new pathways 

are identified and placed in the 

licensee’s Offsite Dose Calculation 

Manual, as applicable; and inclusion of 

limited, defined documentation of 

significant radioactive releases to the 

environment in inspection reports for 

those cases where such events would 

not normally be documented under 

current inspection guidance. See 

Implementation Status (ADAMS 

Accession Numbers ML073230982 and 

ML020730763). 

Additionally, the NRC monitors the 

condition of SFPs through onsite 

Resident Inspectors, reviews of license 

amendment applications, and 

participation in industry forums. For 

example on October 28, 2009, the NRC 

issued Information Notice (IN) 2009–26, 

‘‘Degradation of Neutron-Absorbing 

Materials in the Spent Fuel Pool’’ to all 

operating reactors licensees and 

construction permit holders. IN 2009–26 

is the latest in a series of generic 

communications regarding material 

issues in SFPs. These and other 

documents demonstrate the NRC’s 

continuing evaluation of the SFPs and 

their ability to provide an adequate level 

of safety. This engagement ensures any 

issues are identified and addressed 

through the current regulatory process 

before they could advance to a state 

where there is a significant 

environmental impact. Therefore the 

Commission has reasonable assurance 

that SFPs designed, tested, operated and 

maintained according to NRC 

requirements will provide for the safe 

storage of spent nuclear fuel. 

2. Storage in Dry Casks 

With regard to dry cask storage, 

studies of the accident risk of dry 

storage since 1990 have focused on 

specific dry cask storage systems located 

at either a generic Pressurized Water 

Reactor (PWR) site or a specific Boiling 

Water Reactor (BWR) site. In 2004, the 

Electric Power Research Institute (EPRI) 

performed a Probabilistic Risk 

Assessment (PRA) of a bolted dry spent 

fuel storage cask at a generic PWR site. 

K. Canavan, ‘‘Probabilistic Risk 

Assessment (PRA) of Bolted Storage 

Casks Updated Quantification and 

Analysis Report,’’ Electric Power 

Research Institute, Palo Alto, California; 

EPRI Doc. No. 1009691, December 2004. 

In 2007, the NRC published a pilot PRA 

methodology that assessed the risk to 

the public and identified the dominant 

contributors to risk associated with a 

welded canister dry spent fuel storage 

system at a specific BWR site. NUREG– 

1864, ‘‘A Pilot Probabilistic Risk 

Assessment of a Dry Cask Storage 

System at a Nuclear Power Plant,’’ 

March 2007. Both studies calculated the 

annual individual radiological risk and 

consequences associated with a single 

cask lifecycle where the lifecycle is 

divided into three phases: Loading, 

onsite transfer, and onsite storage. The 

EPRI study showed that risk is 

extremely low with no calculated early 

fatalities, a first year risk of latent cancer 

fatality of 5.6E–13 per cask, and 

subsequent year cancer risk of 1.7E–13 

per cask. The NRC study also showed 

that risk is extremely low with no 

prompt fatalities expected, a first year 

risk of latent cancer fatality of 1.8E–12 

per cask and subsequent year cancer 

risk of 3.2E–14 per cask. 

The major contributors to the low risk 

associated with dry cask storage are that 

they are passive systems, relying on 

natural air circulation for cooling, and 

are inherently robust massive structures 

that are highly damage resistant. Current 

design light water reactor (LWR) 

uranium oxide based fuel and carbon 

coated uranium oxide fuel of low burnup from a high temperature gas cooled 

reactor have been successfully stored in 

dry storage facilities for approximately 

20 years. Extended dry-storage of this 

fuel has been approved for an additional 

40-year term for facilities that have 

incorporated an appropriate aging 

management plan. Other potential new 

fuel types, such as fuels having different 

cladding alloys, fuel internal materials, 

new assembly designs, different 

operating conditions, or fuel higher than 

current burn-up limits, can be approved 

by the NRC for extended storage if the 

applicant provides sufficient data to 

demonstrate that storage of the newer 

designs can be safely accomplished. 

NRC and licensee experience to date 

with ISFSIs and with certification of 

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81072 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

39For example, on July 17, 2007, Private Fuel 

Storage and the Skull Valley Band of Goshute 

Indians (the Band) filed suit against the U.S. 

Department of Interior (DOI) in federal district 

court, challenging DOI’s decisions to disapprove the 

lease between PFS and the Band and to deny PFS’s 

application for right-of-way across public land. On 

July 26, 2010, the district court vacated both of 

DOI’s denials and remanded the case to DOI for 

further consideration. Skull Valley Band of Goshute 

Indians v. Davis,—F.Supp.2d—, 2010 WL2990781 

(D. Utah July 26, 2010). On September 27th, 2010, 

the Salt Lake Tribune reported that the Department 

of Interior would not challenge the court’s ruling. 

http://www.sltrib.com/sltrib/home/50365983–76/ 

interior-nuclear-departmentruling.html.csp?page=1. 

In addition, timely petitions for review 

challenging the NRC’s decision to issue a license to 

Private Fuel Storage for the construction of an 

interim spent fuel storage facility were filed in the 

Court of Appeals for the DC Circuit. Ohngo 

Gaudadeh Devia v. NRC, No. 05–1419 (and 

consolidated cases) (DC Cir.). By Order dated June 

27, 2007, the court held the petitions for review in 

abeyance pending further court order, requiring the 

parties to file status reports every 120 days on the 

status of actions challenging DOI’s lease and rightof-way decisions. 

Another issue is associated with the February 

2006 (NAS) Report on the transport of SNF in the 

United States, which concluded that while safe 

transport is technically viable, ‘‘the societal risks 

and related institutional challenges may impinge on 

the successful implementation of large-quantity 

shipping programs.’’ National Research Council 

2006, ‘‘Going the Distance? The Safe Transport of 

Spent Nuclear Fuel and High-Level Radioactive 

Waste in the United States,’’ Washington, DC: 

National Academy Press, TIC: 217588, at pp. 214. 

The NAS committee found that ‘‘malevolent acts 

against spent fuel and high-level waste shipment 

are a major technical and societal concern,’’ and 

recommended that ‘‘an independent examination of 

security of spent fuel and high-level waste 

transportation be carried out prior to the 

commencement of large-quantity shipments to a 

Federal repository or to interim storage.’’ Id. 

casks has indicated that interim storage 

of spent fuel at reactor sites can be 

safely and effectively conducted using 

passive dry storage technology. There 

have not been any safety problems 

during dry storage. The problems that 

have been encountered primarily occur 

during cask preparation activities, after 

initial loading of spent fuel and before 

placement on the storage pad. One issue 

involved the unanticipated collection 

and ignition of combustible gas during 

cask welding activities. The NRC issued 

generic communications in 1996 to 

address the problem and provide 

direction for preventing its recurrence. 

NRC Bulletin 96–04, ‘‘Chemical, 

Galvanic, or Other Reactions in Spent 

Fuel Storage and Transportation Casks,’’ 

and NRC Information Notice 96–34: 

‘‘Hydrogen Gas Ignition During Closure 

Welding of a VSC–24 Multi-Assembly 

Sealed Basket.’’ The NRC also revised its 

inspection and review guidance to 

ensure that appropriate measures are in 

place to preclude these events. See NRC 

Inspection Manual, Inspection 

Procedure 60854 Item 60854–02 and 

02.03.a.6 and SFPO Interim Staff 

Guidance No. 15, dated January 10, 

2001. 

In addition, issuance of Materials 

License No. SNM–2513 for the Private 

Fuel Storage, LLC (PFS) facility has 

confirmed the feasibility of licensing an 

AFR ISFSI under 10 CFR Part 72. While 

there are several issues that have to be 

resolved before the PFS AFR ISFSI can 

be built and operated,39 the extensive 

review of safety and environmental 

issues associated with licensing the PFS 

facility provides additional confidence 

that spent fuel may be safely stored at 

an AFR ISFSI for long periods after 

storage at a reactor site. 

In addition, as noted in its 1990 Waste 

Confidence Decision, the Commission 

has confidence in the safety and 

environmental insignificance of dry 

storage at an MRS for 70 years following 

a period of 70 years of storage in spent 

fuel storage pools. Specifically, the 

Commission stated: 

Under the environmental assessment for 

the MRS rule [NUREG–1092], the 

Commission has found confidence in the 

safety and environmental insignificance of 

dry storage of spent fuel for 70 years 

following a period of 70 years of storage in 

spent fuel storage pools. Thus, this 

environmental assessment supports the 

proposition that spent fuel may be stored 

safely and without significant environmental 

impact for a period of up to 140 years if 

storage in spent fuel pools occurs first and 

the period of dry storage does not exceed 70 

years. (55 FR 38509–38513; September 18, 

1990). 

Further, a commenter on the 1990 

Waste Confidence Decision asserted that 

there was reasonable assurance that 

spent fuel could be stored safely and 

without significant environmental risk 

in dry casks at reactor sites for up to 100 

years. The Commission responded: 

The Commission does not dispute a 

conclusion that dry spent fuel storage is safe 

and environmentally acceptable for a period 

of 100 years. Evidence supports safe storage 

for this period. A European study published 

in 1988 states, ‘‘in conclusion, present-day 

technology allows wet or dry storage over 

very long periods, and up to 100 years 

without undue danger to workers and 

population (See Fettel, W., Kaspar, G., and 

Guntehr, H., ‘‘Long-Term Storage of Spent 

Fuel from Light-Water Reactors’’ (EUR 11866 

EN), Executive Summary, p.v., 1988). 

Although spent fuel can probably be safely 

stored without significant environmental 

impact for longer periods, the Commission 

does not find it necessary to make a specific 

conclusion regarding dry cask storage in this 

proceeding, as suggested by the commenter, 

in part because the Commission’s Proposed 

Fourth Finding states that the period of safe 

storage is ‘‘at least’’ 30 years after expiration 

of a reactor’s operating license. The 

Commission supports timely disposal of 

spent fuel and high-level waste in a geologic 

repository, and by this decision does not 

intend to support storage of spent fuel for an 

indefinitely long period. (55 FR 38482; 

September 18, 1990). 

The Commission also explained the 

nature of its finding that spent fuel 

could be stored safely and without 

significant environmental impacts for at 

least 30 years beyond the licensed life 

for operation, stating: 

[I]n using the words ‘‘at least’’ in its revised 

Finding Four, the Commission is not 

suggesting 30 years beyond the licensed life 

for operation * * * represents any technical 

limitation for safe and environmentally 

benign storage. Degradation rates of spent 

fuel in storage, for example, are slow enough 

that it is hard to distinguish by degradation 

alone between spent fuel in storage for less 

than a decade and spent fuel stored for 

several decades. (55 FR 38509; September 18, 

1990). 

As explained above under the 

discussion of Finding 3, the NRC has 

renewed three specific ISFSI licenses for 

an extended 40-year period under 

exemptions granted from 10 CFR Part 

72, which provides for 20-year 

renewals. In addition, the NRC staff 

submitted a final rule package to the 

Commission on May 3, 2010, that would 

provide a 40-year license term for an 

ISFSI with the possibility of renewal. 

See SECY 10–0056, ‘‘Final Rule: 10 CFR 

Part 72 License and Certificate of 

Compliance Terms (RIN 3150–A109)’’ 

(ADAMS Accession Number 

ML100710052). Continued suitability of 

materials is a prime consideration for 

ISFSI license renewals. As discussed 

under Finding 3 in this document, the 

applicants’ evaluation of aging effects 

on the structures, systems, and 

components important to safety, 

supplemented by the licensees’ aging 

management programs, provided 

reasonable assurance of continued safe 

storage of spent fuel in these ISFSIs. 

Thus, these cases reaffirm the 

Commission’s confidence in the safety 

of interim dry storage for an extended 

period. While these license renewal 

cases only address storage for a period 

of up to 60 years (20-year initial license, 

plus 40-year renewal), studies 

performed to date have not identified 

any major issues with long-term use of 

dry storage. See, e.g., NUREG/CR–6831, 

‘‘Examination of Spent PWR Fuel rods 

after 15 Years in Dry Storage,’’ 

(September 2003); J. Kessler, ‘‘Technical 

Bases for Extended Dry Storage of Spent 

Nuclear Fuel,’’ Electric Power Research 

Institute, Palo Alto, California; EPRI 

Doc. No. 1003416, December 2002 (55 

FR 38509; September 18, 1990). As 

noted above, the Commission has 

directed the NRC staff, separate from 

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these updates to the Waste Confidence 

Decision and Rule, to examine the 

possibility of storage for more than 60 

years after licensed life for operation. 

This longer-term analysis will be 

supported by an Environmental Impact 

Statement. 

3. Terrorism and Spent Fuel 

Management 

The NRC has, since the 1970s, 

regarded spent fuel in storage as a 

potential terrorist target and provided 

for appropriate security measures. 

Before September 11, 2001, spent fuel 

was well protected by physical barriers, 

armed guards, intrusion detection 

systems, area surveillance systems, 

access controls, and access 

authorization requirements for persons 

working inside nuclear power plants 

and spent fuel storage facilities. Since 

September 11, 2001, the NRC has 

significantly enhanced its requirements, 

and licensees have significantly 

increased their resources to further 

enhance and improve security at spent 

fuel storage facilities and nuclear power 

plants. See (Diaz Letter), at 20. 

Consistent with the approach taken at 

other categories of nuclear facilities, the 

NRC responded to the terrorist attacks of 

September 11, 2001, by promptly 

developing and requiring security 

enhancements for spent fuel storage 

both in spent fuel pools and dry casks. 

In February 2002, the NRC required 

power reactor licensees to enhance 

security and improve their capabilities 

to respond to terrorist attacks. The 

NRC’s orders included requirements for 

spent fuel pool cooling to deal with the 

consequences of potential terrorist 

attacks. These enhancements to security 

included increased security patrols, 

augmented security forces, additional 

security posts, increased vehicle 

standoff distances, and improved 

coordination with law enforcement and 

intelligence communities, as well as 

strengthened safety-related mitigation 

procedures and strategies. The February 

2002 orders required licensees to 

develop specific guidance and strategies 

to maintain or restore spent fuel pool 

cooling capabilities using existing or 

readily available resources (equipment 

and personnel) that can be effectively 

implemented under the circumstances 

associated with the loss of large areas of 

the plant due to large fires and 

explosions. 

In January and April 2003, the NRC 

issued additional orders on security, 

including security for spent fuel storage. 

The NRC subsequently inspected each 

facility to verify the licensee’s 

implementation, evaluated inspection 

findings and, as necessary, required 

actions to address any noted 

deficiencies. The NRC’s inspection 

activities in this area are ongoing. In 

2004, the NRC reviewed and approved 

revised security plans submitted by 

licensees to reflect the implementation 

of new security requirements. The 

enhanced security at licensee facilities 

is routinely inspected using a revised 

baseline inspection program, and power 

reactor licensees’ capabilities (including 

spent fuel pools) are tested in periodic 

(every 3 years) force-on-force exercises. 

Diaz Letter at iii, 7, 9. The NRC’s 

ongoing ISFSI security rulemaking is 

discussed below. 

In 2002, the NRC required power 

reactors in decommissioning, wet 

ISFSIs, and dry storage ISFSIs to 

enhance security and improve their 

capabilities to respond to, and mitigate 

the consequences of, a terrorist attack. 

In the same year, the NRC required 

licensees transporting more than a 

specified amount of spent fuel to 

enhance security during transport. Diaz 

Letter at 7, 8. 

In 2002, the NRC also initiated a 

classified program on the capability of 

nuclear facilities to withstand a terrorist 

attack. The early focus of the program 

was on power reactors, including spent 

fuel pools, and on dry cask storage and 

transportation. As the results of the 

program became available, the NRC 

provided additional guidance to 

licensees on the Commission’s 

expectations regarding the 

implementation of the orders on the 

spent fuel mitigation measures. Diaz 

Letter at iv. 

In 2007 the NRC issued a final rule 

revising the Design Basis Threat, which 

also increased the security requirements 

for power reactors and their spent fuel 

pools (72 FR 12705; March 19, 2007). 

More recently, on March 27, 2009, the 

NRC issued a final rule to improve 

security measures at nuclear power 

reactors (74 FR 13926). 

i. Spent Fuel Pools 

Spent fuel pools that are designed, 

tested, operated and maintained 

according to NRC requirements will 

provide for the safe storage of spent 

nuclear fuel. Spent fuel pools are 

extremely robust structures that are 

designed to safely contain spent fuel 

under a variety of normal, off-normal, 

and hypothetical accident conditions 

(e.g., loss of electrical power, floods, 

earthquakes, tornadoes). The pools are 

massive structures made of reinforced 

concrete with walls typically over six 

feet thick, lined with welded stainless 

steel plates to form a generally leak-tight 

barrier, fitted with racks to store the fuel 

assemblies in a controlled configuration, 

and provided with redundant 

monitoring, cooling, and make-up water 

systems. Spent fuel stored in pools is 

typically covered by about 25 feet of 

water, which serves as both shielding 

and an effective protective cover against 

direct impacts on the stored fuel. Diaz 

Letter at 2 (73 FR 46206; August 8, 

2008). 

The post-September 11, 2001 studies 

discussed above confirm the 

effectiveness of additional mitigation 

strategies to maintain spent fuel cooling 

in the event the pool is drained and its 

initial water inventory is reduced or lost 

entirely. Based on this recent 

information and the implementation of 

additional strategies following 

September 11, 2001, the risk of a spent 

fuel pool zirconium fire initiation will 

be less than reported in NUREG–1738 

and previous studies. Given the 

physical robustness of the pools, the 

physical security measures, and the 

spent fuel pool mitigation measures, 

and based upon NRC site evaluations of 

every spent fuel pool in the United 

States, the NRC has determined that the 

risk of a spent fuel pool zirconium fire, 

whether caused by an accident or a 

terrorist attack, is very low. In addition, 

the NRC has approved license 

amendments and issued safety 

evaluations to incorporate mitigation 

measures into the plant licensing bases 

of all operating nuclear power plants in 

the United States (See 73 FR 46207– 

46208; August 8, 2008). 

ii. Dry Storage Casks 

Dry storage casks are massive 

canisters, either all metal or a 

combination of concrete and metal, and 

are inherently robust (e.g., some casks 

weigh over 100 tons). Storage casks 

contain spent fuel in a sealed and 

chemically-inert environment. Diaz 

Letter at 3. 

The NRC has evaluated the results of 

security assessments involving large 

commercial aircraft attacks, which were 

performed on four prototypical spent 

fuel cask designs, and concluded that 

the likelihood is very low that a 

radioactive release from a spent fuel 

storage cask would be significant 

enough to cause adverse health 

consequences to nearby members of the 

public. While differences exist between 

storage cask designs, the results of the 

security assessments indicate that any 

potential radioactive releases were 

consistently very low. 

The NRC also evaluated the results of 

security assessments involving vehicle 

bomb and ground assault attacks against 

these same four cask designs. The NRC 

concluded that, while a radiological 

release was possible, the size and nature 

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of the release did not require the 

Commission to immediately implement 

additional security compensatory 

measures. Accordingly, the NRC staff 

recommended, and the Commission 

approved, development of riskinformed, performance-based security 

requirements and associated guidance 

applicable to all ISFSI licensees (general 

and specific), which would enhance 

existing security requirements. This 

proposed ISFSI security rulemaking 

would apply to all existing and future 

licensees. See SECY–07–0148, 

‘‘Independent Spent Fuel Storage 

Installation Security Requirements for 

Radiological Sabotage,’’ (August 28, 

2007) (ADAMS Accession Number 

ML080250294); SRM–SECY–07–0148— 

Independent Spent Fuel Storage 

Installation Security Requirements for 

Radiological Sabotage, (December 18, 

2007) (ADAMS Accession Number 

ML073530119). 

On August 26, 2010, the NRC staff 

recommended an extension of the 

proposed rulemaking schedule to 

reassess the technical approach and 

evaluate the impacts from shifting 

technical approaches. See SECY 10– 

0114, ‘‘Recommendation to Extend the 

Proposed Rulemaking on Security 

Requirements For Facilities Storing 

Spent Nuclear Fuel and High-Level 

Radioactive Waste,’’ (August 26, 2010) 

(ADAMS Accession Number 

ML101880013). In addition, the NRC 

has noted that distributing spent fuel 

over many discrete storage casks (e.g., in 

an ISFSI) limits the total quantity of 

spent fuel that could be attacked at any 

one time, due to limits on the number 

of adversaries and the amount of 

equipment they can reasonably bring 

with them. Diaz Letter at 17, 18, 22. 

iii. Conclusion-Security 

Today, spent fuel is better protected 

than ever. The results of security 

assessments, existing security 

regulations, and the additional 

protective and mitigative measures 

imposed since September 11, 2001, 

provide high assurance that the spent 

fuel in both spent fuel pools and in dry 

storage casks will be adequately 

protected. The ongoing efforts to update 

the ISFSI security requirements to 

address the current threat environment 

will integrate the additional protective 

measures imposed since September 11, 

2001, into a formalized regulatory 

framework in a transparent manner that 

balances public participation against 

protection of exploitable information. 

4. Conclusion 

The Commission concludes that the 

events that have occurred since the last 

formal review of its Waste Confidence 

Decision in 1990 provide support for a 

continued finding of 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 of that reactor at its spent fuel 

storage basin. Specifically, the NRC 

finds continued support for this finding 

in the extensive study of spent fuel pool 

storage that has occurred since 1990, 

and the continued regulatory oversight 

of operating plants, which has been 

enhanced by the recommendations of 

the Liquid Release Task Force. 

Further, the Commission is revising 

Finding 2 to reflect its expectation that 

repository capacity will be available 

when necessary. The analysis 

supporting Finding 2 concludes that a 

repository can be constructed within 

25–35 years of a Federal decision to do 

so. This means that the earliest a 

repository could be available is 2035– 

2045, which is beyond the 30 years after 

licensed life of operation in the 1990 

rule. But as the Commission discussed 

above, there is no safety finding that 

would preclude the extension of the 30 

years of safe storage without significant 

environmental impacts. Indeed, the 

current technical information supports a 

finding that storage for at least 60 years 

after licensed life for operation is safe. 

Consistent with the changes to Finding 

2 and its supporting analysis, the 

Commission is revising Finding 4 to 

reflect that spent fuel can be safely 

stored in dry casks for a period of at 

least 60 years without significant 

environmental impacts. Specifically, the 

inherent robustness and passive nature 

of dry cask storage—coupled with the 

operating experience and research 

accumulated to date, the 70-year finding 

in the Environmental Assessment for 

the MRS rule, and the renewal of three 

specific 10 CFR Part 72 licenses for an 

extended 40-year period (for a total 

ISFSI operating life of at least 60 

years)—support this finding. Further, 

this finding is consistent with the 

Commission’s statements in 1990 that it 

did not dispute that dry spent fuel 

storage is safe and environmentally 

acceptable for a period of 100 years (55 

FR 38482; September 18, 1990); that 

spent fuel could probably be safely 

stored without significant 

environmental impact for periods longer 

than 30 years Id; and that the 30 year 

finding did not represent a technical 

limitation for safe and environmentally 

benign storage (55 FR 38509; September 

18, 1990). 

Therefore, based on all of the 

information set forth above and after 

consideration of the public comments 

received, the Commission is revising 

Finding 4 as proposed. 

C. 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. 

V. Finding 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 

A. Bases for Finding 5 

The focus of this finding is on the 

timeliness of the availability of facilities 

for storage of spent fuel when the fuel 

can no longer be stored in the reactor’s 

spent fuel storage pool. At the outset of 

the Waste Confidence proceeding, there 

was uncertainty as to who had the 

responsibility for providing this storage, 

with the expectation that the Federal 

Government would provide away-fromreactor (AFR) facilities for this purpose. 

But in 1981 DOE announced its decision 

to discontinue the AFR program. The 

Commission found that the industry’s 

response to this change was a general 

commitment to do whatever was 

necessary to avoid shutting down 

reactors. The NWPA provided Federal 

policy on this issue by defining public 

and private responsibilities for spent 

fuel storage and by providing for an 

MRS program, an interim storage 

program at a Federal facility for utilities 

for which there was no other solution, 

and a research, development, and 

demonstration program for dry storage 

designed to assist utilities in using dry 

storage methods. These NWPA 

provisions, together with the availability 

of ISFSI technology and the fact that the 

10 CFR part 72 regulations and licensing 

procedures were in place, gave the 

Commission reasonable assurance that 

safe, independent onsite or offsite spent 

fuel storage would be available when 

needed (49 FR 34686–34687; August 31, 

1984). 

In 1990, the Commission saw no need 

to revise this finding. It recognized that 

the NWPA had undermined the ability 

of an MRS to provide for timely storage 

by linking the MRS to the siting and 

schedule for a repository (i.e., DOE was 

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not permitted to select an MRS site until 

it had recommended a site for 

development as a repository). See 

Section 145(b) of NWPA, 42 U.S.C. 

10165 (2006) and Section 148(d)(1) of 

NWPA, 42 U.S.C. 10168 (2006). But the 

Commission found that whatever the 

uncertainty introduced by these NWPA 

provisions, it was more than 

compensated for by operational and 

planned spent fuel pool expansions and 

dry storage investments by the utilities 

themselves. 

The Commission also considered the 

fact that it seemed probable that DOE 

would not meet the 1998 deadline for 

beginning to remove spent fuel from the 

utilities. This did not undermine the 

Commission’s confidence that storage 

capacity would be made available as 

needed because NRC licensees cannot 

abrogate their safety responsibilities and 

would remain responsible for the stored 

fuel despite any possible contractual 

disputes with DOE. The Commission 

noted that DOE’s research program had 

successfully demonstrated the viability 

of dry storage technology and that the 

utilities had continued to add dry 

storage capacity at their sites. Further, 

the Commission believed that there 

would be sufficient time for 

construction and licensing of any 

additional storage capacity that might be 

needed due to operating license 

renewals (55 FR 38513–38514; 

September 18, 1990). 

B. Evaluation of Finding 5 

In 1990, the Commission reaffirmed 

Finding 5 despite significant 

uncertainties regarding DOE’s MRS and 

repository programs, and the potential 

for the renewal of reactor operating 

licenses. Specifically, in reaffirming 

Finding 5 the Commission stated: 

In summary, the Commission finds no 

basis to change the Fifth Finding in its Waste 

Confidence Decision. Changes by the 

NWPAA, which may lessen the likelihood of 

an MRS facility, and the potential for some 

slippage in repository availability to the first 

quarter of the twenty-first century * * * are 

more than offset by the continued success of 

utilities in providing safe at-reactor-site 

storage capacity in reactor pools and their 

progress in providing independent onsite 

storage. Therefore, the Commission continues 

to find ‘* * * reasonable assurance that safe 

independent onsite spent fuel storage or 

offsite spent fuel storage will be made 

available if such storage is needed.’ (55 FR 

38514; September 18, 1990). 

In reaching this conclusion, the 

Commission stressed that—regardless of 

the outcome of possible contractual 

disputes between DOE and utilities—the 

utilities possessing spent fuel could not 

abrogate their safety responsibilities, 

which by law the NRC imposes and 

enforces. In addition, the Commission 

cited three situations where dry storage 

had been licensed at specific reactor 

sites (Surry, H.B. Robinson, and 

Oconee), and several additional 

applications for licenses permitting dry 

cask storage at reactor sites. Id. 

1. Operating and Decommissioned 

Reactors 

As in 1990, the NRC is not aware of 

any current operating reactor that has an 

insurmountable problem with safe 

storage of SNF. Spent fuel pool reracking, fuel-pin consolidation, and 

onsite dry cask storage are successfully 

being used to increase onsite storage 

capacity. While there are cases where a 

licensee’s ability to use an onsite dry 

cask storage option may be limited by 

State or Public Utility Commission 

authorities, the NRC is successfully 

regulating six fully decommissioned 

reactor sites that contain ISFSIs licensed 

under either the general or specific 

license provisions of 10 CFR part 72. 

The NRC has not encountered any 

management problems associated with 

the ISFSIs at these six decommissioned 

reactor sites and has discussed plans to 

build generally licensed ISFSIs with two 

additional licensees that are in the 

process of decommissioning. 

In addition, since 1990, the NRC has 

renewed the specific 10 CFR part 72 

ISFSI licenses for the Surry, H.B. 

Robinson, and Oconee plants for an 

extended 40-year period, instead of the 

20-year renewal period currently 

provided for under 10 CFR part 72. As 

discussed above under Finding 3, the 

Commission authorized the staff to grant 

exemptions to allow the 40-year renewal 

period after the staff reviewed the 

applicants’ evaluations of aging effects 

on the structures, systems, and 

components important to safety and 

determined that the evaluations, 

supplemented by the applicants’ aging 

management programs, provided 

reasonable assurance of continued safe 

storage of spent fuel in these ISFSIs. See 

SECY–04–0175, ‘‘Options for 

Addressing the Surry Independent 

Spent Fuel Storage Installation LicenseRenewal Period Exemption Request,’’ 

September 28, 2004 (ADAMS Accession 

Number ML041830697). 

With regard to the uncertainty 

surrounding the contractual disputes 

between DOE and the utilities 

referenced by the Commission in 1990, 

the U.S. Court of Appeals for the District 

of Columbia Circuit has since held that 

DOE’s statutory and contractual 

obligation to accept the waste no later 

than January 31, 1998, was 

unconditional. Indiana Michigan Power 

Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996). 

Subsequently, the utilities have 

continued to manage spent fuel safely in 

spent fuel pools and ISFSIs and have 

received damage awards as determined 

in lawsuits brought before the U.S. 

Federal Claims Court. See, e.g., System 

Fuels Inc. v. U.S., 78 Fed. Cl. 769 

(October 11, 2007); 92 Fed. Cl. 101 

(March 11, 2010). 

In total, there are currently 51 

licensed ISFSIs being managed at 47 

sites across the country, under either 

specific or general 10 CFR Part 72 NRC 

licenses. As explained in the discussion 

of Finding 3, the NRC’s inspection 

findings do not indicate unique 

management problems at any currently 

operating ISFSI regulated by the NRC. 

Generally, the types of issues identified 

through NRC inspections of ISFSIs are 

similar to issues identified for 10 CFR 

Part 50 licensees. Most issues are 

identified early in the operational phase 

of the dry cask storage process, during 

loading preparations and actual spent 

fuel loading activities. Once an ISFSI is 

fully loaded with spent fuel, relatively 

few inspection issues are identified due 

to the passive nature of these facilities. 

2. New Reactors 

With regard to the status of contracts 

requiring DOE to take title to and 

possession of the irradiated fuel 

generated by utilities, DOE has prepared 

updated contracts, and a number of 

utility companies have signed contracts 

with the department (See, e.g., 

ML100280755 and ML083540149). In 

addition, before licensing a new reactor, 

the NRC must find that the applicant 

has entered into a contract with DOE for 

removal of spent fuel from the reactor 

site or received written affirmation from 

DOE that the applicant is actively and 

in good faith negotiating with the DOE 

for such a contract. NWPA, 

Section302(b). This finding will be 

documented in the Safety Evaluation 

Report produced by the NRC staff in 

response to specific license applications 

for new reactors (See, e.g., 

ML100280755). 

The near-term design certifications 

and existing or planned combined 

license applications do not undermine 

the Commission’s confidence that spent 

fuel storage will become available when 

storage is needed. These facilities will 

use the same or similar fuel assembly 

designs as the nuclear power plants 

currently operating in the United States, 

and the spent fuel will be 

accommodated using existing or similar 

transportation and storage containers. 

As discussed under Finding 1, the NRC 

is also engaged in preliminary 

interactions with DOE on advanced 

reactors (e.g., gas-cooled or liquid-metal 

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cooled technologies). The fuel and 

reactor components associated with 

some of these advanced reactor designs 

would likely require different storage, 

transportation, and disposal packages 

than those currently used for spent fuel 

from light-water reactors. The possible 

need for further assessment of 

performance and storage capability for 

new and different fuels would depend 

on the number and types of reactors 

actually licensed and operated. There is 

currently high uncertainty regarding the 

construction of advanced reactors in the 

U.S. In addition, the need to consider 

waste disposal as part of the overall 

research and development activities for 

advanced reactors is one of the issues 

being considered by DOE, reactor 

designers, and the NRC (see, e.g., ‘‘A 

Technology Roadmap for Generation IV 

Nuclear Energy Systems,’’ issued by the 

U.S. DOE Nuclear Energy Research 

Advisory Committee and the Generation 

IV International Forum, December 

2002). 

Nonetheless, the addition of new 

plants (if any are licensed and 

constructed) would add to the amount 

of spent fuel requiring disposal. This 

fact does not affect the Commission’s 

confidence that safe storage options will 

be available when needed because, as 

the Commission stated in 1990, utilities 

have sought to meet storage capacity 

needs at their respective reactor sites (55 

FR 38514; September 18, 1990). 

Specifically, as discussed under Finding 

3, NRC licensees have successfully and 

safely used onsite storage capacity in 

spent fuel pools and, more recently, in 

onsite ISFSIs licensed under 10 CFR 

part 72. In addition, while construction 

and operation of an MRS facility by 

DOE is uncertain, the NRC has 

promulgated regulations that provide a 

framework for licensing an MRS (See 10 

CFR part 72; 53 FR 31651; August 19, 

1988). Further, while there are 

unresolved issues that are currently 

preventing construction and operation 

of the PFS facility, the extensive safety 

and environmental reviews that 

supported issuance of an NRC license 

for PFS provide added confidence that 

licensing of a private AFR facility is 

technically feasible. 

The Commission concludes that the 

events that have occurred since the last 

formal review of the Waste Confidence 

Decision in 1990 support a continued 

finding of reasonable assurance that safe 

independent onsite spent fuel storage or 

offsite spent fuel storage will be made 

available if storage capacity is needed. 

Specifically, since 1990, NRC licensees 

have continued to develop and 

successfully use onsite storage capacity 

in the form of pool and dry cask storage 

in a safe and environmentally sound 

fashion. With regard to offsite storage, 

the Commission licensed the PFS 

facility after an extensive safety and 

environmental review process and a 

lengthy adjudicatory hearing that 

resulted in over 70 ASLB and 

Commission decisions. The Commission 

also has a regulatory framework for 

licensing an MRS facility, should the 

need arise. In addition, DOE has 

prepared updated contracts to provide 

for disposal of spent fuel and a number 

of utility companies have signed 

contracts with the DOE. This provides 

the NRC with continued confidence in 

the Federal commitment to providing 

for the ultimate disposal of spent fuel. 

Based on the above discussion, 

including its response to the public 

comments, the Commission reaffirms 

Finding 5. 

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. 2010–31637 Filed 12–22–10; 8:45 am] 

BILLING CODE 7590–01–P 

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