81032 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 51 

[NRC–2008–0404] 

RIN 3150–AI47 

Consideration of Environmental 

Impacts of Temporary Storage of 

Spent Fuel After Cessation of Reactor 

Operation 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or Commission) is 

revising its generic determination on the 

environmental impacts of storage of 

spent fuel at, or away from, reactor sites 

after the expiration of reactor operating 

licenses. The revisions reflect findings 

that the Commission has reached in an 

update and supplement to the 1990 

Waste Confidence rulemaking 

proceeding published elsewhere in this 

issue of the Federal Register. The 

Commission now finds that, if 

necessary, spent fuel generated in any 

reactor can be stored safely and without 

significant environmental impacts for at 

least 60 years beyond the licensed life 

for operation (which may include the 

term of a revised or renewed license) of 

that reactor in a combination of storage 

in its spent fuel storage basin or at either 

onsite or offsite independent spent fuel 

storage installations (ISFSIs). It also 

finds reasonable assurance that 

sufficient mined geologic repository 

capacity will be available for disposal of 

spent fuel when necessary. 

DATES: The rule is effective on January 

24, 2011. 

ADDRESSES: You can access publicly 

available documents related to this 

document using the following methods: 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Room O– 

1F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into ADAMS, 

which provides text and image files of 

NRC’s public documents. If you do not 

have access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC’s 

PDR reference staff at 1–800–397–4209, 

301–415–4737, or by e-mail to 

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–2008–0404. 

FOR FURTHER INFORMATION CONTACT: 

Tison Campbell, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, telephone: 301–415–8579, e-mail: 

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 

In 1990, the Commission concluded a 

generic rulemaking proceeding to 

reassess its degree of confidence that 

radioactive wastes produced by nuclear 

power plants can be safely disposed of, 

to determine when this disposal or 

offsite storage will be available, and to 

determine whether radioactive wastes 

can be safely stored onsite past the 

expiration of existing facility licenses 

until offsite disposal or storage is 

available. This proceeding reviewed the 

Commission’s 1984 findings on these 

issues, which were developed through a 

generic rulemaking proceeding that 

became known as the ‘‘Waste 

Confidence Proceeding.’’ The 1990 

proceeding resulted in the following 

five reaffirmed or revised Waste 

Confidence findings: 

1. The Commission finds reasonable 

assurance that safe disposal of highlevel radioactive waste (HLW) and spent 

nuclear fuel (SNF) in a mined geologic 

repository is technically feasible; 

2. The Commission finds reasonable 

assurance that at least one mined 

geologic repository will be available 

within the first quarter of the twentyfirst century, and that sufficient 

repository capacity will be available 

within 30 years beyond the licensed life 

for operation (which may include the 

term of a revised or renewed license) of 

any reactor to dispose of the commercial 

HLW and SNF originating in such 

reactor and generated up to that time; 

3. The Commission finds reasonable 

assurance that HLW and SNF will be 

managed in a safe manner until 

sufficient repository capacity is 

available to assure the safe disposal of 

all HLW and SNF; 

4. The Commission finds reasonable 

assurance that, if necessary, spent fuel 

generated in any reactor can be stored 

safely and without significant 

environmental impacts for at least 30 

years beyond the licensed life for 

operation (which may include the term 

of a revised or renewed license) of that 

reactor at its spent fuel storage basin, or 

at either onsite or offsite ISFSIs; and 

5. The Commission finds reasonable 

assurance that safe independent onsite 

spent fuel storage or offsite spent fuel 

storage will be made available if such 

storage capacity is needed. (55 FR 

38474; September 18, 1990). 

These five findings formed the basis 

of the Commission’s revised generic 

determination of no significant 

environmental impact from temporary 

storage of SNF after cessation of reactor 

operation, which was codified at 10 CFR 

51.23(a): 

The Commission has made a generic 

determination that, if necessary, spent fuel 

generated in any reactor can be stored safely 

and without significant environmental 

impact for at least 30 years beyond the 

licensed life for operation (which may 

include the term of a revised or renewed 

license) of that reactor at its spent fuel 

storage basin or at either onsite or offsite 

independent spent fuel storage installations. 

Further, the Commission believes there is 

reasonable assurance that at least one mined 

geologic repository will be available within 

the first quarter of the twenty-first century, 

and sufficient repository capacity will be 

available within 30 years beyond the licensed 

life for operation of any reactor to dispose of 

the commercial [HLW] and [SNF] originating 

in such reactor and generated up to that time. 

(55 FR 38474; September 18, 1990) 

Thus, the environmental impacts of 

spent fuel storage for the period 

following the term of a reactor operating 

license or amendment or reactor 

combined license or amendment or 

initial independent spent fuel storage 

installation license or amendment do 

not need to be considered in 

proceedings on applications for these 

licenses or amendments. See 10 CFR 

51.23(b). 

In 1999, the Commission reviewed its 

Waste Confidence findings and 

concluded that experience and 

developments after 1990 had confirmed 

the findings and made a comprehensive 

reevaluation of the findings 

unnecessary. It also stated that it would 

consider undertaking a reevaluation 

when the pending repository 

development and regulatory activities 

had run their course or if significant and 

pertinent unexpected events occurred 

that raise substantial doubt about the 

continuing validity of the Waste 

Confidence findings (See 64 FR 68005; 

December 6, 1999). 

The Proposed Rule 

In 2008, the Commission decided that 

the generic resolution of appropriate 

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issues that might be raised in licensing 

proceedings on anticipated combined 

operating license (COL) applications for 

new reactors would enhance the 

efficiency of the COL proceedings; 

waste confidence was one of these 

issues. Prior to NRC’s original Waste 

Confidence proceeding, the Commission 

stated that, as a matter of policy, it 

‘‘would not continue to license reactors 

if it did not have reasonable confidence 

that the wastes can and will in due 

course be disposed of safely’’ (42 FR 

34391, 34393; July 5, 1977). It has been 

20 years since the last formal review of 

the Waste Confidence findings, so the 

Commission is revisiting the findings to 

address their continuing validity, given 

the passage of time since the last update 

to the Waste Confidence Decision, and 

given the upcoming COL proceedings. 

The Commission is now updating and 

revising the 1990 Waste Confidence 

Decision and Rule. 

On October 9, 2008 (73 FR 59551), the 

Commission published the proposed 

update and revision of two of the Waste 

Confidence findings, along with a 

request for public comment, in the 

Federal Register. In the same issue of 

the Federal Register, the Commission 

proposed a conforming amendment of 

its generic determination of no 

significant environmental impact from 

the temporary storage of spent fuel after 

cessation of reactor operations codified 

at 10 CFR 51.23(a) (73 FR 59547; 

October 9, 2008). The Commission 

proposed to modify its generic 

determination to state that, if necessary, 

spent fuel generated in any reactor can 

be stored safely and without significant 

environmental impacts beyond the 

licensed life for operation (which may 

include the term of a revised or renewed 

license) of that reactor at its spent fuel 

storage basin or at either onsite or offsite 

ISFSIs until a disposal facility can 

reasonably be expected to be available. 

The Final Rule 

After evaluating the public comments 

on the proposed rule and update to the 

Waste Confidence Decision, the 

Commission is now publishing its final 

rule amending 10 CFR 51.23(a), along 

with the final update and revision to the 

Waste Confidence Decision (published 

separately in this issue of the Federal 

Register). The Commission is revising 

two of its findings: 

Finding 2: The Commission finds 

reasonable assurance that sufficient 

mined geologic repository capacity will 

be available to dispose of the 

commercial high-level radioactive waste 

and spent fuel generated in any reactor 

when necessary. 

Finding 4: The Commission finds 

reasonable assurance that, if necessary, 

spent fuel generated in any reactor can 

be stored safely and without significant 

environmental impacts for at least 60 

years beyond the licensed life for 

operation (which may include the term 

of a revised or renewed license) of that 

reactor in a combination of storage in its 

spent fuel storage basin and either 

onsite or offsite independent spent fuel 

storage installations. 

The Commission, in response to 

public comments, and to achieve greater 

consistency with Finding 4, is also 

modifying the rule to include a time 

frame for the safe storage of SNF: 

The Commission has made a generic 

determination that, if necessary, spent 

fuel generated in any reactor can be 

stored safely and without significant 

environmental impacts for at least 60 

years beyond the licensed life for 

operation (which may include the term 

of a revised or renewed license) of that 

reactor in a combination of storage in its 

spent fuel storage basin and at either 

onsite or offsite independent spent fuel 

storage installations. Further, the 

Commission believes there is reasonable 

assurance that sufficient mined geologic 

repository capacity will be available to 

dispose of the commercial high-level 

radioactive waste and spent fuel 

generated in any reactor when 

necessary. 

Public Comments 

The NRC received 158 comment 

letters, including a late-supplemental 

comment from the Attorney General of 

New York, as well as two form letters 

sent by 1,990 and 941 commenters, 

respectively. Many of the comment 

letters contained multiple comments on 

the proposed rule, the proposed 

revisions to the Waste Confidence 

findings, or both. All comments 

received on both notices have been 

considered together and are addressed 

in the final update to the Waste 

Confidence Decision. The main issues 

raised by the comments are briefly 

discussed below. 

Many commenters argued that NRC 

has not complied with the National 

Environmental Policy Act (NEPA) 

because they believe that the revisions 

to the findings and amended rule 

constitute ‘‘generic licensing decisions’’ 

and need to be supported by a Generic 

Environmental Impact Statement (GEIS) 

that addresses all aspects of the nuclear 

fuel cycle. But as the Commission 

discusses in its comment responses, 

neither the Waste Confidence Rule nor 

the Decision allow for the issuance of a 

license; applicants for an NRC license 

must comply with the relevant NRC 

regulations before they can receive a 

license. And the Waste Confidence 

Decision and Rule satisfy a portion of 

the NRC’s NEPA obligations—those 

associated with the environmental 

impacts after the end of license life. In 

this rulemaking, the Waste Confidence 

Decision is the Environmental 

Assessment—the NRC’s NEPA 

analysis—that provides the basis for the 

generic determination of no significant 

environmental impacts reflected in the 

rule (10 CFR 51.23). 

The Commission is amending its 

generic determination of no significant 

environmental impact from the 

temporary storage of spent fuel after 

cessation of reactor operation contained 

in 10 CFR 51.23(a) to conform it to the 

Commission’s revised Finding 4 of the 

Waste Confidence Decision. Finding 4 is 

revised to provide reasonable assurance 

that spent fuel can be stored safely and 

without significant environmental 

impacts for at least 60 years beyond the 

licensed life for operation of a reactor, 

rather than for at least 30 years as in the 

present Finding 4. The Commission is 

also revising the final rule to remove the 

time frame from the second sentence of 

10 CFR 51.23(a); instead the 

Commission has incorporated the 

language adopted in Finding 2: That 

sufficient repository capacity will be 

available to dispose of spent nuclear 

fuel and high-level waste when 

necessary. 

The revised generic determination is 

not a generic licensing decision. It does 

not authorize the operation of a nuclear 

power plant (NPP), the renewal of a NPP 

license, or the production or storage of 

spent fuel by a NPP. Licensing 

proceedings for any of these actions are 

supported by both specific and generic 

environmental impact statements (EISs) 

or environmental assessments (EAs) that 

consider the potential environmental 

impacts of storage of spent fuel during 

the term of the license. Because of the 

generic determination in § 51.23(a) the 

potential environmental impact of 

storage of spent fuel for a 60-year period 

(rather than a 30-year period) after the 

end of licensed operations or whether 

ultimate disposal will be available, is 

not considered in individual NPP 

licensing reviews. The EA supporting 

this 30-year extension of the generic 

determination and the finding of 

reasonable assurance of a safe, timely 

disposal facility is the Waste Confidence 

Decision Update, which supports the 

Commission’s Finding of No Significant 

Impact (FONSI) and concurrent decision 

to not conduct an EIS. 

A number of commenters asserted 

that NRC, in preparing an EA and 

FONSI, has not complied with the 

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81034 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

procedural requirements for a FONSI, 

which include the preparation of an EA 

and the identification of all the 

documents that the FONSI is based on. 

As stated above, the update and revision 

of the Waste Confidence Decision is the 

EA supporting the amendment of the 

generic determination in 10 CFR 

51.23(a). All of the documents relied 

upon in preparing the Update and Final 

Rule are referenced. Two of the 

referenced documents are not publicly 

available; these are reports concerning 

the safety and security of spent fuel pool 

storage issued by Sandia National 

Laboratories (SNL) and the National 

Academy of Sciences (NAS), which are 

either Classified, Safeguards 

Information (SGI), or Official Use 

Only—Security Related Information. 

Although these documents cannot be 

released to the public, redacted or 

publicly available summaries are 

available. A redacted version of the SNL 

study can be found in ADAMS (ADAMS 

Accession Number ML062290362) and 

the unclassified summary of the NAS 

report can be purchased or downloaded 

for free by accessing the NAS Web site 

at: http://www.nap.edu/ 

catalog.php?record_id=11263. No other 

non-public documents are referenced in 

the Waste Confidence Update. 

A number of commenters argued that 

NRC’s revisions of its Waste Confidence 

findings and temporary storage rule do 

not comply with the holding of the U.S. 

Court of Appeals for the Ninth Circuit 

in San Luis Obispo Mothers for Peace v. 

NRC, 449 F. 3d 1016 (2006), cert. 

denied, 127 S. Ct. 1124 (2007), that 

NEPA requires an examination of the 

environmental impacts that would 

result from an act of terrorism against an 

ISFSI. These commenters believe that an 

attack is reasonably foreseeable and 

therefore subject to a NEPA review. 

Despite the outcome of Mothers for 

Peace, the Commission has adhered to 

its traditional position (outside of the 

Ninth Circuit) that the environmental 

effects of a terrorist attack do not need 

to be considered in its NEPA analyses. 

See Amergen Energy Co., LLC (Oyster 

Creek Nuclear Generating Station), CLI– 

07–08, 65 NRC 124 (2007). And in 2009, 

the U.S. Court of Appeals for the Third 

Circuit upheld the Commission’s 

position that terrorist attacks are too far 

removed from the natural or expected 

consequences of agency action to 

require an environmental impact 

analysis. New Jersey Dept. of 

Environmental Protection v. U.S. 

Nuclear Regulatory Com’n, 561 F.3d 132 

(2009). Even so, the EA for this update 

and rulemaking includes a discussion of 

terrorism that NRC believes satisfies the 

Ninth Circuit’s holding in Mothers for 

Peace. 

Some commenters believe that this 

revision of the Waste Confidence 

findings violates the Atomic Energy Act 

of 1954 (AEA) because the AEA 

precludes NRC from licensing any new 

NPP or renewing the license of any 

existing NPP if it would be ‘‘inimical 

* * * to the health and safety of the 

public.’’ 42 U.S.C. 2133(d). As explained 

above, NRC’s revised Waste Confidence 

findings and revised generic 

determination are not licensing 

decisions, but merely generically 

resolve certain discrete issues in 

licensing proceedings. They are not 

determinations made as part of the 

licensing proceedings for NPPs or 

ISFSIs or the renewal of those licenses. 

They do not authorize the storage of 

SNF in spent fuel pools or ISFSIs. The 

revised findings and generic 

determination include conclusions of 

the Commission’s environmental 

analyses, under NEPA, of the 

foreseeable environmental impacts 

stemming from the storage of spent fuel 

after the end of reactor operation. 

Other comments questioned NRC’s 

basis for reaffirming Finding 1 and 

Finding 3 and for the revisions made in 

Findings 2 and 4. Those comments are 

fully addressed in the final update as 

well as other, more minor, comments. 

The Commission, below, restates its 

reasons for revising Findings 2 and 4. 

Specific Question for Public Comment 

The Waste Confidence Decision 

Update considers the many comments 

received on the specific question for 

public comment in the Commission’s 

proposals—whether Finding 2 should 

contain a target date, as proposed, or 

take a more general approach that a 

repository will be available when 

needed (the alternative approach). The 

State of Nevada, Clark and Eureka 

Counties in Nevada, and the Nuclear 

Energy Institute favor the alternative 

approach. They generally believe that a 

time frame involves too much 

speculation about future events and that 

licensed storage of SNF will be safe no 

matter what the time needed. Several 

states; State organizations; Nye County, 

Nevada; environmental groups; and 

other commenters want the Commission 

to retain a time frame. In general, they 

believe that, in the absence of a time 

frame, the Commission’s confidence in 

the eventual disposal of spent fuel 

would rest on pure speculation; that it 

would ignore intergenerational ethical 

concerns of this generation reaping the 

benefits of nuclear energy while passing 

off the problem of waste disposal to 

future generations; and that a time frame 

is necessary to provide an incentive for 

the Federal Government to meet its 

responsibilities for the disposal of spent 

fuel and HLW. 

The Commission has confidence that 

spent fuel can be safely stored without 

significant environmental impact for 

long periods of time for all the reasons 

described in its discussion of Findings 

3, 4, and 5 in the update to the Waste 

Confidence Decision. Further, as 

discussed in Finding 2, the Commission 

has confidence that sufficient mined 

geologic disposal capacity will be 

available when necessary. However, 

there are issues beyond the 

Commission’s control, including the 

political and societal challenges of 

siting a HLW repository, that make it 

premature to predict a date when a 

repository will become available. The 

Commission has therefore decided not 

to adopt a specific time frame in 

Finding 2 or its final rule. Instead, the 

Commission is expressing its reasonable 

assurance that a repository will be 

available ‘‘when necessary.’’ 

The Commission believes that this 

standard accurately reflects its position, 

as discussed in the analysis supporting 

Finding 2, that a repository can be 

constructed within 25–35 years of a 

Federal decision to do so. Further, the 

Commission continues to have 

confidence, as expressed in Findings 3 

and 5, that safe and sufficient onsite or 

offsite storage capacity is available and 

will be available until a repository 

becomes available for disposal. In 

addition, revised Finding 4 supports at 

least 60 years of safe and 

environmentally sound onsite or offsite 

storage beyond the end of the licensed 

life for operation of any nuclear power 

reactor. It necessarily follows from these 

findings that the Commission has 

reasonable assurance that sufficient 

repository capacity will be available 

before there are safety or environmental 

issues associated with the SNF and 

HLW that would require the material to 

be removed from storage and placed in 

a disposal facility. 

In short, the Commission can express 

its reasonable assurance that disposal 

capacity will become available when 

necessary and that there will be 

sufficient safe and environmentally 

sound storage available for all of the 

SNF until this disposal capacity 

becomes available. 

Safe Storage of Spent Fuel 

This update reflects the Commission’s 

increased confidence in the safety and 

security of SNF storage, both in spent 

fuel pools and in ISFSIs. In 1990, the 

Commission determined that experience 

with spent fuel pools continued to 

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confirm that pool storage is a benign 

environment that does not lead to 

significant degradation of spent fuel 

integrity; that the pools in which the 

assemblies are stored will remain safe 

for extended periods; and that 

degradation mechanisms are well 

understood and allow time for 

appropriate remedial action. Similarly, 

by 1990, the Commission had gained 

experience with dry storage systems that 

confirmed the Commission’s 1984 

conclusions that material degradation 

processes in dry storage are well 

understood and that dry storage systems 

are simple, passive, and easily 

maintained. In fact, one of the bases for 

the Commission’s confidence in the 

safety of dry storage was its August 19, 

1988 (53 FR 31651) amendment to 10 

CFR part 72 that addressed spent fuel 

storage in a monitored retrievable 

storage installation (MRS) for a license 

term of 40 years, with the possibility of 

renewal. In the EA for the MRS rule, the 

Commission found confidence in the 

safety and environmental insignificance 

of dry storage for 70 years following a 

period of 70 years of storage in a storage 

pool, for a total of 140 years of storage. 

See NUREG–1092: Environmental 

Assessment for 10 CFR Part 72, 

‘‘Licensing Requirements for the 

Independent Storage of Spent Fuel and 

High-Level Radioactive Waste,’’ August 

1984. Nothing has occurred in the 

intervening years to call into question 

the Commission’s confidence in the 

long-term safety of both wet and dry 

storage of SNF. Subsequently, the NRC 

has approved a 20-year license renewal 

for a wet ISFSI and 40-year license 

renewals for three dry ISFSIs. 

Since 1990, the Commission’s 

primary focus has been on potential 

accidents. And since September 11, 

2001, this focus has expanded to 

include security events that might lead 

to a radioactive release from stored SNF. 

Multiple studies of the safety and 

security of spent fuel storage, including 

the potential for the draining of a spent 

fuel pool leading to a zirconium fire and 

for an airplane crashing into an ISFSI, 

have been undertaken by NRC and by 

other entities, such as the NAS. These 

studies and the Commission’s regulatory 

actions have reinforced NRC’s view that 

spent fuel storage systems are safe, 

secure, and without significant 

environmental impacts. See, e.g., Letter 

to Senator Pete V. Domenici from Nils 

J. Diaz, March 14, 2005, enclosing NRC 

Report to Congress on the [NAS] Study 

on the Safety and Security of 

Commercial [SNF] Storage, March 2005; 

(73 FR 46204; August 8, 2008); In the 

Matter of Private Fuel Storage, L.L.C., 

CLI–05–19; 62 NRC 403 (2005). 

In sum, the characteristics of spent 

fuel storage facilities, the studies of the 

safety and security of spent fuel storage 

(conducted both before and after the 

1990 update to the Decision and Rule), 

NRC’s extensive experience in 

regulating spent fuel storage and ISFSIs 

and in certifying dry cask storage 

systems, NRC’s actions in approving 40- 

year license renewals for three ISFSIs 

(meaning that the safety of dry storage 

after licensed operation at these ISFSIs 

has been approved for at least a 60-year 

period), and an additional 20 years of 

experience with safely storing spent fuel 

support the Commission’s confidence in 

the long-term safety and security of 

spent fuel storage. 

The Availability of a Repository 

On June 3, 2008, the Department of 

Energy (DOE) submitted the Yucca 

Mountain (YM) application to NRC and 

on September 8, 2008, NRC staff 

notified DOE that it found the 

application acceptable for docketing (73 

FR 53284; September 15, 2008). 

Although the licensing proceeding for 

the YM repository is still pending, the 

current Administration and DOE 

leadership have made it clear that they 

oppose the construction of the YM 

repository. The President’s 2010 budget 

proposal stated that the ‘‘Administration 

proposes to eliminate the Yucca 

Mountain repository program.’’ 

Terminations, Reductions, and Savings: 

Budget of the U.S. Government, Fiscal 

Year 2010, Page 68 available at http:// 

www.gpoaccess.gov/usbudget/fy10/pdf/ 

trs.pdf (last visited on November 9, 

2010). 

On March 3, 2010, DOE filed a Notice 

of Withdrawal with the Atomic Safety 

and Licensing Board (Board) that is 

presiding over the YM licensing 

proceeding (ADAMS Accession Number 

ML100621397). On June 29, 2010, the 

Board denied DOE’s motion; and on 

June 30, 2010, the Secretary of the 

Commission invited the parties to file 

briefs regarding whether the 

Commission should review, reverse, or 

uphold the Board’s decision (ADAMS 

Accession Numbers ML101800299 and 

ML101810432). The Commission has 

not yet issued its decision. 

Recent events, coupled with its 

ongoing analysis of the target date 

approach used in Finding 2, have 

caused the Commission to reconsider its 

position regarding the use of a target 

date in Finding 2. As discussed above, 

the Commission continues to have 

confidence that a repository can be 

constructed in 25–35 years, but it is 

uncertain whether the social and 

political consensus necessary for a 

successful repository program will be 

reached in the near future. Therefore, 

the Commission has adopted the 

approach proposed in the Additional 

Question for Public Comment, and has 

removed the target date from Finding 2 

(73 FR 59561; October 9, 2008). 

This modification to Finding 2 does 

not mean that the Commission is 

endorsing indefinite storage of HLW and 

SNF; Finding 4 has not been changed, 

and only considers ‘‘at least 60 years’’ of 

storage beyond the licensed life for 

operation. If the expiration of this time 

nears without the availability of a 

repository, the Commission will revisit 

the Waste Confidence Decision and 

Rule. The Commission’s current Waste 

Confidence Decision and Rule reflect 

the NRC’s best information and 

judgment. But the longer-term 

rulemaking and study of storage for 

more than 120 years that the 

Commission directed the staff to start in 

its Staff Requirements Memorandum 

(SRM) (SRM–SECY–09–0090, M100915; 

September 15, 2010) will result in the 

Commission having more information in 

a timely fashion should additional 

adjustments to the Waste Confidence 

Decision and Rule prove necessary. 

The Commission remains confident 

that disposal of SNF and HLW in a 

geologic repository is technically 

feasible and that DOE should be able to 

locate a suitable site for repository 

development in no more time than was 

needed for the YM repository program 

(about 20 years). Both domestic and 

international developments have made 

it clear that confidence in the technical 

feasibility of a repository alone is not 

sufficient to bring about the broader 

societal and political acceptance of a 

repository. Achieving this broader 

support for construction of a repository 

at a particular site requires a broad 

public outreach program. In some 

countries community acceptance has 

taken 25–35 years. 

For example, if a new repository 

program starts in 2025, it could be 

reasonable to expect that a repository 

would become available by 2050–2060. 

But the Commission cannot express 

reasonable assurance in 2025 as the start 

date for a new program because it is not 

possible to predict when a political and 

social consensus will be reached. The 

Commission believes that there is no 

specific date by which a repository must 

be available for safety or environmental 

reasons; the Commission did not define 

a period when a repository will be 

needed for safety or environmental 

reasons in 1990 and it is not doing so 

now—it is only explaining its view of 

when a repository could reasonably be 

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81036 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 

expected to be available after a Federal 

decision to construct a repository. 

Availability of Repository Capacity for 

Disposal of Spent Fuel From All 

Reactors 

The Commission’s generic 

determination of no significant 

environmental impact from the 

temporary storage of spent fuel after 

cessation of reactor operation has 

included a prediction that sufficient 

repository capacity for a reactor’s fuel 

will be available within 30 years beyond 

the licensed life for operation of that 

reactor. This prediction was not based 

on safety or environmental 

considerations; it was based on finding 

that 30 years beyond the licensed life for 

operation of even the earliest reactors 

would not occur until after 2025. Thus, 

the Commission’s confidence that a 

repository would be available by 2025 

still meant that no reactor would need 

to store its SNF for more than 30 years 

beyond its licensed life for operation. If 

it is assumed that a repository will not 

be available until well after 2025, then 

this prediction can no longer be 

maintained (the analysis supporting 

Finding 2 indicates that if the political 

and societal roadblocks were resolved 

today, a repository would not be 

available until at least 2035–2045). 

According to NRC’s ‘‘High-Value 

Datasets,’’ there are 14 reactor operating 

licenses that will expire between 2012 

and 2020 and an additional 36 licenses 

that will expire between 2021 and 2030. 

NRC High-Value Datasets, http:// 

www.nrc.gov/public-involve/ 

open.html#datasets (last visited 

November 9, 2010). 

For licenses that are not renewed, 

some spent fuel will need to be stored 

for more than 30 years beyond the 

licensed life for operation. There are 23 

reactors that were formerly licensed to 

operate by the NRC or the Atomic 

Energy Commission (the NRC’s 

predecessor agency) and have been 

permanently shut down. Id. For most of 

these plants, 30 years beyond the 

licensed life for operation will fall in the 

2030s and 2040s. Thus, for virtually all 

of these plants, spent fuel will have to 

be stored beyond 30 years from the 

expiration of the license if a repository 

is not available until well after 2025. 

Further, the Commission has concerns 

about the use of the target date approach 

used in proposed Finding 2 and the 

proposed rule and has decided not to 

adopt this approach. A target date 

requires the Commission to have 

reasonable assurance of when a 

repository will become available; but, 

because the Commission cannot predict 

when this societal and political 

acceptance will occur, it is unable to 

express reasonable assurance in a 

specific target date for the availability of 

a repository. The Commission does, 

however, believe that a repository can 

be constructed within 25–35 years of a 

Federal decision to construct a 

repository. 

Given the ongoing activities of the 

Blue-Ribbon Commission on America’s 

Nuclear Future, events in other 

countries, the viability of safe long-term 

storage for at least 60 years (and perhaps 

longer) after reactor licenses expire, and 

the Federal Government’s statutory 

obligation to develop a HLW repository, 

the Commission has confidence that a 

repository will be made available well 

before any safety or environmental 

concerns arise from the extended 

storage of spent nuclear fuel and highlevel waste. In other words, a repository 

will be available when necessary. For 

these reasons, the Commission is 

amending its generic determination that 

sufficient repository capacity will be 

available ‘‘within 30 years of the 

expiration of the licensed life for 

operation of all reactors’’ to reflect its 

reasonable assurance that sufficient 

repository capacity will be available 

when necessary. 

As stated above, this is not a safety 

finding, and the amendment is made 

solely to be consistent with an 

assumption that a repository will not be 

available until 25–35 years after the 

resolution of the political and societal 

issues associated with a repository. As 

explained in the update to the Waste 

Confidence Decision, the Commission’s 

confidence that a repository will be 

available when necessary rests on a 

number of factors, including (for 

example) the options being considered 

by the Blue-Ribbon Commission, the 

time it likely will take to site, license, 

and build a repository, the Federal 

Government’s commitment, by law (the 

Nuclear Waste Policy Act) to dispose of 

spent fuel, and developments in other 

countries. 

Summary of Amendments by Section 

The Commission is adopting the 

proposed revision, with some changes. 

The rule is being revised to more closely 

track the language in final Findings 2 

and 4; the basis for the rule is identical 

to the basis for the findings, no matter 

how the rule itself is phrased. But to 

avoid confusion and respond to the 

issues raised in the comments, the 

Commission has reconsidered the 

phrasing of the proposed rule, and the 

generic determination in the final rule 

now is made identical to Finding 4. 

Section 51.23(a) is also revised to 

reinsert a version of the second sentence 

in the present rule that was excluded 

from the proposed rule. This statement 

was added to make clear that Finding 4 

does not contemplate indefinite storage 

and to underscore that the 60-year 

storage period is related to the 

Commission’s expectation that 

sufficient repository capacity will be 

available when necessary. Accordingly, 

the added sentence provides that there 

is ‘‘reasonable assurance that sufficient 

mined geologic repository capacity will 

be available to dispose of the 

commercial high-level radioactive waste 

and spent fuel generated in any reactor 

when necessary.’’ 

Section 51.23(a) is also revised to 

provide the Commission’s generic 

determination that, if necessary, spent 

fuel generated in any reactor can be 

stored safely and without significant 

environmental impacts for at least 60 

years beyond the licensed life for 

operation (which may include the term 

of a revised or renewed license) of that 

reactor in a combination of storage in its 

spent fuel storage basin or at either 

onsite or offsite ISFSIs. The time period 

of ‘‘at least 30 years’’ beyond the 

licensed life for operation is deleted. 

This amendment also deletes the 

predictions that at least one mined 

geologic repository will be available 

within the first quarter of the twentyfirst century and that sufficient 

repository capacity will be available 

within 30 years beyond the licensed life 

for operation of any reactor to dispose 

of the commercial HLW and SNF 

originating in such reactor and 

generated up to that time. The 

amendment adds the expectation that 

sufficient mined geologic repository 

capacity will be available to dispose of 

the commercial HLW and spent fuel 

originating in any reactor when 

necessary. 

Voluntary Consensus Standards 

The National Technology Transfer 

and Advancement Act of 1995 (Pub. L. 

104–113) requires that Federal agencies 

use technical standards that are 

developed or adopted by voluntary 

consensus standards bodies unless the 

use of such a standard is inconsistent 

with applicable law or otherwise 

impractical. In this final rule, NRC is 

modifying its generic determination on 

the consideration of environmental 

impacts of temporary storage of spent 

fuel after cessation of reactor operations 

to provide that, if necessary, spent fuel 

generated in any reactor can be stored 

safely and without significant 

environmental impacts for at least 60 

years beyond the licensed life for 

operation (which may include the term 

of a revised or renewed license) of that 

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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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