[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59551-59570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23381]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket ID-2008-0482]


Waste Confidence Decision Update

AGENCY: Nuclear Regulatory Commission.

ACTION: Update and proposed revision of Waste Confidence Decision.

-----------------------------------------------------------------------

SUMMARY: On September 18, 1990, the Nuclear Regulatory Commission (NRC 
or Commission) 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 review 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 such 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. The Commission has decided to 
again undertake a review of its Waste Confidence findings as part of an 
effort to enhance the efficiency of combined operating license 
proceedings for applications for nuclear power plants anticipated in 
the near future. To assure that its Waste Confidence findings are up-
to-date, the Commission has prepared an update of the findings and 
proposes to revise two of the findings. The purpose of this notice is 
to seek public comment on the update and the proposed revisions.
    The Commission proposes that the second and fourth findings in the 
Waste Confidence Decision be revised as follows:
    Finding 2: The Commission finds reasonable assurance that 
sufficient mined geologic repository capacity can reasonably be 
expected to be available within 50-60 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.
    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 proposes to reaffirm the remaining findings. Each 
finding, any proposed revisions, and the reasons for revising or 
reaffirming them are discussed below. In keeping with the proposed 
revised Findings 2 and 4, the Commission is publishing concurrently

[[Page 59552]]

in this issue of the Federal Register proposed conforming amendments to 
its 10 CFR part 51 rule providing 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.

DATES: Submit comments by December 8, 2008. Comments received after 
this date will be considered if it is practical to do so, but NRC is 
able to assure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Comments submitted in writing or in electronic form will be made 
available for public inspection. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0482]. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
<a href="/cdn-cgi/l/email-protection#f0b391829f9cdeb7919c9c9197989582b09e8293de979f86"><span class="__cf_email__" data-cfemail="ca89abb8a5a6e48daba6a6abada2afb88aa4b8a9e4ada5bc">[email protected]</span></a>.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: <a href="/cdn-cgi/l/email-protection#7d2f081118101c1614131a533e1210101813090e3d130f1e531a120b"><span class="__cf_email__" data-cfemail="580a2d343d35393331363f761b3735353d362c2b18362a3b763f372e">[email protected]</span></a>. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1677.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone 301-
415-1677).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.
    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, Public 
File Area 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 
<a href="/cdn-cgi/l/email-protection#c2b2a6b0ecb0a7b1adb7b0a1a782acb0a1eca5adb4"><span class="__cf_email__" data-cfemail="becedacc90ccdbcdd1cbccdddbfed0ccdd90d9d1c8">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Neil Jensen, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone 301-415-8480, e-mail, <a href="/cdn-cgi/l/email-protection#f39d969a9fdd99969d80969db39d819d90dd949c85"><span class="__cf_email__" data-cfemail="4c22292520622629223f29220c223e222f622b233a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    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 nuclear power plants 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 1372; 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 (1979). That case raised the question 
whether an offsite storage or disposal solution would be available for 
the spent nuclear fuel (SNF) produced at the Vermont Yankee and Prairie 
Island reactors at the expiration of the licenses for those facilities 
in the 2007-2009 period 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 
its denial of a petition for rulemaking filed by the Natural Resources 
Defense Council (NRDC), that it intended to reassess periodically 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\
---------------------------------------------------------------------------

    \1\ The NRDC petition asserted that the Atomic Energy Act of 
1954, as amended (AEA), 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.
---------------------------------------------------------------------------

    The Waste Confidence proceeding resulted in five Waste Confidence 
findings which the Commission issued August 31, 1984; 49 FR 34658:
    (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.
    Based on these findings, the Commission amended 10 CFR part 51 of 
its regulations to provide a generic determination, codified in 10 CFR 
51.23(a), that for at least 30 years 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.
    The Commission conducted a review of its findings in 1989-1990 
which resulted in the revision of the second and fourth findings 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. These 
findings are:

[[Page 59553]]

    (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.
    The Commission amended the generic determination made in 10 CFR 
51.23(a) consistent with these revised findings (55 FR 38472; September 
18, 1990):

    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.

This generic determination is applied in licensing proceedings 
conducted under 10 CFR Parts 50, 52, 54 and 72. See 10 CFR 51.23 
(2008).
    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 such a 
reevaluation 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 (64 FR 68005; December 6, 1999).
    The Commission does not believe that the criteria set in 1999 for 
reopening the Waste Confidence findings have been met. However, the 
Commission is now preparing to conduct a significant number of 
proceedings on combined construction permit and operating license (COL) 
applications for new reactors. The Commission anticipates that the 
issue of waste confidence may be raised in those proceedings and 
desires to take a fresh look at its Waste Confidence findings to take 
into account developments since 1990. For this purpose, the Commission 
has prepared this update of the Waste Confidence findings and now 
proposes the following revisions of Findings 2 and 4:
    (2) The Commission finds reasonable assurance that sufficient mined 
geologic repository capacity can reasonably be expected to be available 
within 50-60 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 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 restates and supplements the bases for the earlier 
findings. The Commission seeks public comment on the update and on its 
proposed revisions of Findings 2 and 4.
    The Commission is also publishing concurrently in this issue of the 
Federal Register a proposed rule revising 10 CFR 51.23(a) to conform 
with the proposed revisions of Findings 2 and 4.

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 the Department of Energy (DOE) would need to 
resolve in developing a final design for such a 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, that can 
effectively retard migration of radionuclides out of the repository (49 
FR 34667; August 31, 1984).
    DOE's selection of a suitable geologic setting has been governed by 
Congress' passage of the Nuclear Waste Policy Act of 1982, Public Law 
97-425, 42 U.S.C. 10101 et seq. (NWPA) and by the 1987 amendments to 
NWPA in the Nuclear Waste Policy Amendments Act, Pub. L. 100-202 
(NWPAA). DOE had begun to explore potential repository sites before the 
NWPA, 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 these Acts may assist readers in understanding the 
process followed by DOE in locating a suitable geologic setting.
    As initially enacted, NWPA directed DOE to issue guidelines for the 
recommendation of sites and then to nominate at least 5 sites as being 
suitable for site characterization for selection as the first 
repository site and, not later than January 1, 1985, to recommend 3 of 
those sites to the President for characterization as candidate sites. 
Section 112 of NWPA, 42 U.S.C. 10132. Not later than July 1, 1989, DOE 
was to again nominate 5 sites and recommend 3 of them to the President 
for characterization for selection of the second repository. Id. DOE 
was then to carry out site characterization activities for approved 
sites. Section 113 of NWPA, 42 U.S.C. 10133. Following site 
characterization, DOE was then 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. 
Section 114 of NWPA, 42 U.S.C. 10134. States and affected Indian tribes 
were given the opportunity to object, but if the recommendations were 
approved by Congress, DOE was then to submit applications for a 
construction authorization to NRC. Id. 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 metric tons of 
heavy metal (MTHM) until a

[[Page 59554]]

second repository was in operation. Id. The 1987 NWPAA, inter alia, 
restricted site characterization solely to a site at Yucca Mountain, NV 
(YM) and terminated the program for a second repository. The NWPAA 
provided that if DOE at any time determines YM to be unsuitable for 
development as a repository, DOE must report to Congress its 
recommendations for further action to assure the safe, permanent 
disposal of SNF and HLW, including the need for new legislation. 
Section 113 of NWPA, as amended, 42 U.S.C. 10133.
    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 NWPA that focused solely on 
the YM site carried the potential for considerable delay in opening a 
repository if that site were found to be unlicenseable. However, 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 9 
sites it had identified as being potentially acceptable and on the 
final environmental assessments for the 5 sites nominated.\2\ NRC had 
not identified any fundamental technical flaw or disqualifying factor 
which would render any of the sites unsuitable for characterization or 
potentially unlicenseable, although 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).
---------------------------------------------------------------------------

    \2\ Under 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.
---------------------------------------------------------------------------

    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 might alter the technical feasibility of 
achieving a suitable waste package because of the need to accommodate a 
waste form other than spent fuel. The Commission concluded that the 
studies of 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 
continued research and experimentation on waste packages that were 
undertaken by DOE in other countries, particularly Sweden and Canada. 
NRC noted that DOE had narrowed the range of waste package designs to a 
design tailored for unsaturated tuff at the YM site due to the 1987 
redirection of the HLW program. NRC also noted that some reprocessing 
wastes from the defense program and the West Valley Demonstration 
Project were now anticipated to be disposed in the repository. However, 
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 it to the 
conclusion 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

    There remains high confidence among the scientific and technical 
community engaged in waste management 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 enhancement of scientific 
understanding and technological development needed for geologic 
disposal over the past 18 years. There is now a much deeper 
understanding of 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, in underground 
research laboratories, 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 specifics in 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 continues to appear to be a feasible 
goal with current technology. Assessments for long-term performance of 
a potential repository at YM were conducted by DOE in 1998 (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

[[Page 59555]]

breakthroughs in science or technology were needed to support the 
assessments.
    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 to NRC and on September 08, 2008, NRC Staff 
notified DOE that it found the application acceptable for docketing (73 
FR 53284; September 15, 2008). Whether this particular site will be 
found to be technically acceptable must await the outcome of an NRC 
licensing proceeding. The 1987 amendments to NWPA barred DOE from 
continuing site investigations elsewhere within the U.S. However, 
Congress' decision to focus solely on YM was not based on any finding 
that information DOE had obtained on other sites ruled them out 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 are actively considering crystalline rock, 
clay formations, 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 been conducting research on 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 has been ruled out based on 
technical or scientific information. Salt formations currently are 
being considered as hosts only for reprocessed nuclear materials 
because heat-generating waste, like spent nuclear fuel, exacerbates a 
process by which salt can rapidly deform. This process could 
potentially cause problems for keeping drifts stable and open during 
the operating period of a repository.
    In 2001, 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), which requires use of both natural and engineered barriers to 
meet overall total system performance objectives without pre-determined 
subsystem performance requirements, such as substantially complete 
containment for a waste package, as is required in 10 CFR Part 60.\3\ 
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 from a potential repository system. Although the 
performance of individual barriers may change through time, the overall 
performance of the total system is required to be acceptable throughout 
the performance period for the repository. In this context of total 
system performance, research and development has supported the view 
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.
---------------------------------------------------------------------------

    \3\ NRC'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.
---------------------------------------------------------------------------

    Since the Commission last considered Waste Confidence issues, NRC 
has issued design certifications 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 and 
for COL applications that reference designs under review or designs 
previously certified. These facilities would use the same or similar 
fuel assembly designs as the nuclear power plants currently operating 
in the United States. A need for possible design changes for repository 
disposal may be affected by the extent of a licensee's reliance on 
cladding or fuel type as a barrier to waste isolation. If limited 
reliance is placed on the barrier capabilities of cladding or fuel type 
in a demonstration of compliance 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.
    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 that 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 currently 
plans to dispose of spent fuel at YM from both gas-cooled (Peach Bottom 
1) and liquid-metal cooled (Fermi 1) reactors, using the same basic 
technological approach as for other SNF. Although radionuclide 
inventory, fuel matrix, and cladding characteristics for advanced fuels 
might be distinct 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. The licensing strategy developed by NRC 
and DOE for the next generation nuclear plant (NGNP) program found that 
an aggressive licensing approach may lead to operation of a prototype 
facility in 2021. Based on comparison with current disposal strategies 
for fuel from existing gas cooled or liquid-metal cooled reactors, NRC 
is confident that current technology appears to be adequate to support 
the safe disposal of spent fuel from a potential prototype facility. In 
addition to the NGNP activities related to the prototype reactor, 
various activities, such as DOE's Advanced Fuel Cycle Initiative, are 
underway to evaluate fuel cycle alternatives that could affect the 
volume and form of waste from the prototype reactor or other advanced 
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, DOE and NRC. 
See, e.g., DOE Nuclear Energy Research Advisory Committee and the 
Generation IV International Forum, ``A Technology Roadmap for 
Generation IV

[[Page 59556]]

Nuclear Energy Systems,'' December 2002.
    Based on the information described previously, the Commission 
proposes to reaffirm 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

    The dual objectives of this finding are 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 and Prairie Island nuclear power plants would expire.\4\ 
In 1984, DOE anticipated that the first repository would begin 
operation in 1998 and the second in 2004. However, NRC concluded that 
technical and institutional uncertainties made it preferable to focus 
on the 2007-2009 time period. The technical uncertainties involved the 
questions of 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 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).
---------------------------------------------------------------------------

    \4\ Under the court remand which 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 (DCDC Cir. 1979).
---------------------------------------------------------------------------

    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 
recently-passed NWPA to timely resolve these uncertainties (49 FR 
34675-34679; August 31, 1984).
    With respect to the second prediction, 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 likely be about 160,000 MTHM. To accommodate this 
amount, NRC assumed that two repositories would be needed. 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' 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 
should be found unsuitable or unlicenseable. Finally, site 
characterization activities at YM had not proceeded without problems, 
notably in DOE's schedule for sub-surface 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 in the 
2007-2009 period (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 up with the question of the suitability of the YM 
site but 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, as 
amended, 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, as amended, 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 amended 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 time for the availability for a repository, undermined its 
prediction 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 some time 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

[[Page 59557]]

most operating licenses.\5\ 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 spent 
fuel projections, in 1990, called for 87,000 MTHM to have been 
generated by the year 2036. In addition, DOE's projections were based 
on the assumption of no new reactor orders. The Commission believed 
that that assumption probably underestimated the total spent fuel 
discharges to be expected due to the likelihood of reactor license 
renewals. 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.\6\ 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 
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).
---------------------------------------------------------------------------

    \5\ NRC 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, 1991).
    \6\ DOE is 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, as amended, 42 U.S.C. 
10172a. DOE intends to submit the report in 2008.
---------------------------------------------------------------------------

    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. 
However, the Commission remained confident that in these cases, the 
overall safety and environmental impacts of extended spent fuel storage 
would be insignificant. The Commission had found that spent fuel could 
be safely stored for at least 100 years (Finding 4), \7\ 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. The Commission found that 
in effect, 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).
---------------------------------------------------------------------------

    \7\ The 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.
---------------------------------------------------------------------------

B. Evaluation of Finding 2

    As explained previously, the Commission based its estimate in 1990 
on the premise 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 the year 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.
    DOE made its suitability determination in early 2002 and found the 
YM site suitable for development as a repository.\8\ Although DOE's 
application for a construction authorization for a repository was 
considerably delayed from the schedule set out in NWPA, \9\ on June 3, 
2008, DOE submitted the application to NRC and on September 08, 2008, 
NRC Staff notified DOE that it found the application acceptable for 
docketing (73 FR 53284; September 15, 2008). DOE's current estimate of 
the best achievable date for opening of the YM repository, assuming it 
is licensed, is 2020. At the hearing before the Subcommittee on Energy 
and Air Quality of the House Committee on Energy and Commerce held on 
July 15, 2008, Edward F. Sproat III, Director of DOE's Office of 
Civilian Radioactive Waste Management (OCRWM), informed the Congress 
that DOE could be ready to begin accepting SNF by 2020, but only if 
adequate funding is provided.
---------------------------------------------------------------------------

    \8\ On 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). 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 Pub. L. No. 107-200, 116 
Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 2004)).
    \9\ Section 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).
---------------------------------------------------------------------------

    The NWPA process thus remains on track for making available a 
geologic repository for the disposal of SNF and HLW. DOE's projection 
of a date for repository availability has moved from 2010 in 1990 to 
2020 today and could slip further. Even with some slippage in DOE's 
schedule, it remains possible that a repository will be available by 
2025. Of course, now the only repository that could become available by 
2025 is the proposed repository at YM and it will only become available 
if the Commission issues a construction authorization and a subsequent 
authorization to receive and possess HLW. In 2005, the State of Nevada 
filed a petition for rulemaking with NRC (PRM-51-8) which raised the 
question 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

[[Page 59558]]

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).

    In the absence of an unfavorable NRC decision and DOE's abandonment 
of the site, the Commission found no reason to reopen its Waste 
Confidence findings.
    However, the Commission has now considered the recommendations of 
the Combined License Review Task Force Report and, in its June 22, 
2007, Staff Requirements Memorandum (SRM) on that report, has 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 (ML071760109). In a subsequent SRM 
of 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 (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.\10\ See memorandum from Luis A. Reyes 
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 (ML073390094). Undertaking a 
public rulemaking proceeding now to consider revisions to the Waste 
Confidence findings and rule--rather than waiting until some point 
closer to the 2025 date--will allow sufficient time to conduct a 
studied and orderly reassessment and, as appropriate, to revise and 
update the findings and rule. In particular, it will allow the 
Commission to consider alternative time-frames which would provide 
reasonable assurance for the availability of a repository.
---------------------------------------------------------------------------

    \10\ Challenges 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 ground for such 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 
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.
---------------------------------------------------------------------------

    One possibility might be to make an assumption that the Commission 
would ultimately find the YM site unacceptable by a certain date and 
then set the expected availability of a different repository at a time 
around 25 years later in accordance with DOE's 1990 estimate of the 
time it would take to make a repository available at a different site. 
However, the Commission rejected this route in the denial of 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 would be to revise the finding to include a target 
date or timeframe 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 further in this document. The target date 
could be placed in the finding itself, or described in the explanation 
for the finding. A target date is admittedly not very different from 
``the first quarter of the twenty-first century'' as stated in the 
current finding, but this approach would make it more clear that 
specification of a particular time for when a repository could be built 
does not imply that radioactive waste would pose unsafe conditions if a 
repository were not available at that time. The capability to safely 
store radioactive waste over long periods is a viable interim 
alternative not dependent on any one specific year for availability of 
a repository. The Commission has adopted this approach in updating its 
finding.
    Most countries possessing HLW and SNF eventually plan to confine 
these wastes using deep geologic disposal. Currently, there are 24 
other countries that consider 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 which have not established target dates rely on 
centralized interim storage, which may include a protracted period of 
onsite storage before shipment to a centralized facility.\11\
---------------------------------------------------------------------------

    \11\ The three countries with target dates that plan direct 
disposal of SNF are: Czech Republic (2050), Finland (2020), and 
Sweden (2020). The seven countries with target dates that plan 
disposal of reprocessed SNF/HLW are: Belgium (2035), China (2050), 
France (2025), Germany (2025), Japan (2030s), Netherlands (2013), 
Switzerland (2042).
---------------------------------------------------------------------------

    The ``target date'' approach would need to assume a beginning date 
for a new repository program. NRC believes that it is reasonable to 
select 2025 as the starting point, the current outer date of the 
Commission's prediction of repository availability. It is reasonable to 
assume that it will be known by 2025 whether a repository is available 
at the YM site. If it is not available, it seems reasonable to assume 
that a new repository program would get underway around that time. The 
need for a new repository program would not necessarily be the result 
of an NRC denial of the license application; it could result from a 
change in national policy for HLW disposal, a court reversal of a 
Commission licensing action, or other factors. The assumption of a need 
for a new repository program would be based on an assumption that the 
proposed YM repository does not become available, and not on an 
assumption that NRC determines that facility to be technically 
unacceptable. In sum, the Commission would be saying that it will 
remove its expectation that a repository will be available by 2025 but, 
even in the event that the YM repository does not become available, it 
retains confidence that spent fuel can be safely stored with no 
significant environmental impact until a repository can reasonably be 
expected to be available and that the Commission has a target date for 
the availability of the repository in that circumstance.
    If it is assumed that a new repository program begins around the 
year 2025, then setting a target date for the

[[Page 59559]]

availability of a repository becomes a matter of examining the 
technical and institutional problems DOE would need to resolve to 
achieve the target date. The technical problems should be the same as 
the ones NRC 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 our 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 which have set target 
dates for the availability of a repository. It is also the approach of 
14 other countries which have HLW disposal programs, but which have not 
set target dates.\12\ In addition when Congress amended NWPA in 1987 to 
focus exclusively on the YM site, it did so for budgetary reasons and 
not because the sites DOE was considering at the time were discovered 
to be technically unacceptable. The research being done nationally and 
internationally strongly suggests that potentially acceptable sites 
exist and can be identified.
---------------------------------------------------------------------------

    \12\ These 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/HLW).
---------------------------------------------------------------------------

    The amount of time DOE might need to develop an alternative 
repository site would depend upon the context of any enabling 
legislation, budgetary constraints, and the degree of similarity 
between a candidate site and other well-characterized 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. However, 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 impacted DOE's repository 
program, such as changes in enabling legislation, public confidence 
issues, funding in Congressional appropriations, and significant delay 
in issuing environmental standards. In terms of the technical work 
alone, a lot would depend on whether Congress established 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 developed with the single site. Much would also depend on 
whether the site(s) chosen for characterization is similar to sites in 
this or other countries for which much information is available or 
whether the site(s) would present novel challenges for which much 
fundamental knowledge would have to be developed. An alternative site 
with a disposal approach that is similar to that used in other 
international repository programs could make use of the extensive 
knowledge from those international programs to gain efficiencies in the 
alternative repository development program.
    In addition, there should be a certain amount of ``lessons 
learned'' from the YM repository program that could help to shorten the 
length of a new program. For example, performance assessment techniques 
have improved significantly over the past 20 years (e.g., the Goldsim 
software package of DOE's Total System Performance Assessment was not 
available 20 years ago and represents a significant improvement over 
the FORTRAN language of years past) such that performance assessment 
models are easier to develop and more reliable from what was available 
20 years ago. Similarly, operational and manufacturing aspects 
developed during the YM program (e.g., manufacturing of waste packages, 
excavation of drifts, waste handling), would be applicable to another 
program. Also, regulatory issues considered during the YM program 
(e.g., burn-up credit for nuclear fuel and seismic performance 
analysis) should provide information useful for setting new standards 
or revising current standards.\13\
---------------------------------------------------------------------------

    \13\ Both NRC's Part 63 and EPA's 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.
---------------------------------------------------------------------------

    Whether waste package and engineered barrier information developed 
during the YM repository program would be transferable to a new program 
depends heavily on the degree of similarity between an alternative site 
and YM. The fundamental physical characteristics of the potential YM 
repository are significantly different from other potential repository 
sites that were considered in the U.S. repository program before 1987. 
If YM does not become available, DOE could select an alternative 
candidate site that was 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 had significantly different characteristics than the 
YM site, such as an emplacement horizon in reducing conditions below 
the water table. In this instance, research from additional programs by 
DOE, industry, and other countries might provide important information 
on engineered barriers, provided DOE's alternative was analogous to 
sites and engineered barriers being considered elsewhere.
    It is important to note, however, that broader institutional issues 
have emerged since 1990 that bear on the time it takes to implement 
geologic disposal. International developments have made clear that 
technical experience and confidence in geologic disposal, on their own, 
have not sufficed to bring about the broader societal and political 
acceptance needed to realize the authorization of a single national 
repository.
    In the United Kingdom (UK), in 1997, an application for the 
construction of a rock characterization facility at Sellafield was 
rejected, leaving the country without a path forward for long-term 
management or disposal of HLW or SNF. In 1998, an inquiry by the UK 
House of Lords subsequently 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. In 2007, the Scottish Government 
officially rejected any further consultation with the UK Government on 
deep geologic disposal of HLW and SNF. Discussions may continue on 
issues of interim storage only. This action by the Scottish Government 
effectively ends more than 7 years of consultations with stakeholders 
from communities near Scottish nuclear installations and represents 
another major setback for the UK program.
    In Germany, a large salt dome at Gorleben has been under study 
since 1977 as a potential repository for SNF. After decades of intense 
discussions and protests, an agreement was reached in 2000 between the 
utilities and the government to suspend exploration of Gorleben for at 
least three, and at most,

[[Page 59560]]

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.
    After detailed site investigations in several locations in 
Switzerland, in 1993, the Swiss national cooperative for radioactive 
waste disposal proposed a deep geologic repository for low- and 
intermediate-level waste at Wellenberg. Despite a finding by Swiss 
authorities, in 1998, 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 a deep geologic repository will be available in their country 
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 decision-making, 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 must then use this process to open consultations with 
citizens, communities, Aboriginals, and other interested parties to 
find a suitable site in a willing host community. The Canadian 
Government explicitly acknowledges that this approach will ``take time 
to develop a process that is open, transparent, inclusive, and that is 
built on a solid foundation of trust, integrity and respect for 
Canadians and the environment.'' The Honorable Gary Lunn, P.C., M.P., 
Minister of Natural Resources, Canada, to President of NWMO, July 12, 
2007. 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.
    Repository development programs in Finland and Sweden are much 
further advanced, but have nonetheless taken the time to build support 
from potential host communities. Preliminary site investigations in 
Finland began 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 municipal council of the host community 
had approved the siting of the disposal facility in 1999. Finland 
expects this facility to begin receipt of SNF for disposal in 2020, 34 
years after the start of preliminary site investigations.
    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, 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. One of the two volunteer sites will 
be selected for development as a repository and an application to the 
Swedish safety authorities is expected in 2009. If construction is 
authorized, Sweden expects the repository to be available for disposal 
in 2018, 25 years after starting feasibility studies in 1993.
    If YM is not licensed, Congress will need to provide direction to 
DOE for development of a new site or, potentially, a new management 
concept, 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.
    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 assuring the 
timely development of a repository in the sense that there have always 
been more than sufficient funds available for meeting 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. At the FY 2009 Appropriations Hearing 
(April 10, 2008), Edward F. Sproat III, Director of OCRWM, DOE, stated 
that the NWF has a balance of approximately $21.0 billion. Thus, the 
NWF has the capacity to ensure timely development of a repository 
consistent with Congressional funding constraints. Moreover, DOE is in 
the process of preparing contracts to be signed by utilities planning 
to build new reactors. Therefore, there will be a source of funding for 
disposal of the fuel to be generated by these reactors.
    Arriving at a target date involves balancing the technical and 
institutional factors discussed previously. It appears that the 
technical work needed to make a repository available could probably be 
done in less time than it took DOE to

[[Page 59561]]

submit a license application for the YM site (26 years measured from 
the beginning of site characterization). However, as discussed 
previously, the time needed to develop societal and political 
acceptance of a repository might range between 25 and 35 years. 
Therefore, if the starting point for a new program were 2025, a 
reasonable target date would be 2050-2060 for the availability of a 
repository.
    Finding 2 also includes the prediction 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 the year 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 assurance 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.
    If an assumption is made, for purposes of establishing a target 
date, that a repository will not become available until approximately 
2050-2060, it appears that a finding 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) 
is not supportable.\14\ According to the 2007-2008 USNRC Information 
Digest, NUREG-1350, Vol. 19, Table 11, p.48 (Information Digest), there 
are 18 reactor operating licenses that will expire between 2009 and 
2020. There are an additional 44 licenses that will expire between 2021 
and 2030. Many of these licenses may be renewed which would extend 
their operating lifetimes, but this cannot be assumed.\15\ 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 2050-2060. According to the Information Digest, 
Appendix B, there are 22 reactors which were formerly licensed to 
operate, but which have been permanently shut down. 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 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 2050-2060.
---------------------------------------------------------------------------

    \14\ Based 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 Institute of Nuclear Material Management Seminar XXV, 
January 16, 2008, paper by Bob Quinn of Energy Solutions, Industry 
Perspective on the GNEP--Yucca Mountain Relationship. Therefore, a 
new repository program would need to remove this limit or provide 
for more than one repository.
    \15\ Six of these reactor operating licenses have already been 
renewed (Dresden 2, Ginna, Nine Mile Point 1, Robinson 2, Point 
Beach 1, and Monticello). Forty-two other reactor operating licenses 
have been renewed and the renewed licenses will expire after 2030.
---------------------------------------------------------------------------

    In 1990, the Commission emphasized that this 30 year period was not 
a safety finding. It was only an estimate of how long it was likely 
that SNF would need to be stored, given its 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 on-site 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 say that there is no public health and safety or environmental 
concern if its target date of 2050-2060 for the availability of a 
disposal facility results in the need to store fuel at some reactors 
for a 50-60 year period after expiration of the license or even longer.
    Based on the information described previously, the Commission is 
proposing to revise Finding 2 to eliminate a specific date for the 
availability of a repository and to state that a repository may 
reasonably be expected to be available within 50-60 years beyond the 
licensed life for operation of any reactor.

C. Proposed Finding 2

    The Commission finds reasonable assurance that sufficient mined 
geologic repository capacity can reasonably be expected to be available 
within 50-60 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 spent fuel originating in such 
reactor and generated up to that time.

D. Specific Question for Public Comment

    An alternative approach would be for the Commission to revise 
Finding 2 without reference to a timeframe for the availability of a 
repository. (The proposed revision to simplify 10 CFR Sec.  51.23(a) 
removes the reference to a repository date although it is based on an 
expectation of repository availability by 2050-2060 as set forth in the 
proposed revision to Finding 2). In 2005, in response to PRM-51-8, the 
Commission had declined to consider such an approach to define 
``availability'' based on a presumption that some acceptable disposal 
site would become available at some undefined time in the future. The 
Commission concluded then that such an approach would be a departure 
from the framework it had established in its original 1984 decision to 
use a specific timeframe as a basis for assessing the degree of 
assurance that radioactive waste can be disposed of safely and for 
determining when such disposal will be available (70 FR. 48333; August 
17, 2005).
    The Commission's proposed revision of Finding 2 is based on its 
assessment not only of our 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 such predictions, the 
Commission seeks specific comment on whether it should revise its 
approach to Finding 2 and 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. 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)

[[Page 59562]]

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).
    The Commission seeks comment on this alternative revision of 
Finding 2 and whether additional information is needed for or 
accompanying changes should be made to its other Findings on the long 
term storage of spent fuel if such a revision of Finding 2 were to be 
adopted.

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. The focus of this finding 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. The Commission placed its main reliance that 
the spent fuel would be managed safely on the fact that, under either a 
possession-only Part 50 license or a Part 72 license, the utility would 
remain under 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 pointed out that 
NRC's regulations provided for license renewals of Part 72 licenses and 
that NRC was considering issuance of a general Part 72 license under 
which spent fuel could be stored in NRC-certified casks,\16\ (55 FR 
38508; September 18, 1990). The Commission reasoned that these 
regulations would provide further mechanisms for NRC supervision of 
spent fuel management by licensees. The Commission was not concerned 
about then-looming contractual disputes between DOE and the utilities 
regarding DOE's obligation to begin removing spent fuel from reactor 
sites in 1998 because NRC licensees cannot abandon spent fuel in their 
possession and would remain responsible for it (55 FR 38508; September 
18, 1990).
---------------------------------------------------------------------------

    \16\ Part 72 was, in fact, amended to provide for storage of 
spent fuel in NRC-certified casks pursuant to a general license (55 
FR 29191; July 18, 1990).
---------------------------------------------------------------------------

    The Commission also considered the unusual case where a utility was 
unable to manage its spent fuel. The NWPA had provided an Interim 
Storage Program (Subtitle B) which enabled a utility to enter into a 
contract with DOE for temporary storage of its fuel but, by 1990 (the 
expiration of the program), no utility had sought to take advantage of 
it (55 FR 38508; September 18, 1990). In a case where a utility became 
insolvent, NRC believed that the cognizant state public utility 
commission would be likely to require an orderly transfer to another 
entity which could be accomplished if the new entity met NRC's 
regulations (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 previously, 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 Part 50 licenses and consist only of an ISFSI under 
the Part 72 general license provisions.\17\ In addition, the NRC staff 
has discussed plans to build and operate ISFSIs under the Part 72 
general license provisions with the licensees at the La Crosse and Zion 
plants, which are currently undergoing decommissioning. The NRC is also 
successfully regulating ISFSIs at two fully decommissioned reactor 
sites (Trojan and Ft. St. Vrain) under specific Part 72 licenses.\18\
---------------------------------------------------------------------------

    \17\ These reactor sites include Maine Yankee, Yankee Rowe, 
Connecticut Yankee (also known as Haddam Neck), and Big Rock Point.
    \18\ There are several additional sites with specific Part 72 
ISFSI licenses that are in the process of decommissioning (e.g., 
Humbolt Bay, Rancho Seco).
---------------------------------------------------------------------------

    The NRC monitors the performance of ISFSIs at decommissioned 
reactor sites by conducting periodic inspections that are the same as 
the inspections performed for ISFSIs 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 Part 71 Transportation Packages.'' At all six 
decommissioned reactor sites mentioned previously, all spent fuel on 
site has been successfully loaded into the ISFSI, so 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 relied upon under the 10 
CFR Part 50 license for operation of the 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, NRC's 
inspection findings do not indicate 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 
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, 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 licensees to 
submit written notification to the Commission of the licensees' 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

[[Page 59563]]

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.

    While the interim storage program under Subtitle B of the NWPA 
expired in 1990, in the past arrangements have been made with DOE to 
take possession of spent fuel in urgent or unusual circumstances, as 
was done for the Three Mile Island Unit 2 fuel debris. 10 CFR 50.54(bb) 
(2008).
    To date, the NRC has also renewed three specific 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 and H.B. Robinson ISFSIs. The NRC staff is also 
currently reviewing an application for renewal of the specific ISFSI 
license for the Oconee plant (ML081280084) and anticipates a renewal 
application for the Fort St. Vrain ISFSI sometime in 2009. Specific 
licenses for six additional ISFSIs will expire between 2012 and 2020. 
It is expected that license renewal 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 three cases, it is 
noteworthy that both the Surry and H.B. Robinson ISFSI licenses were 
renewed for a period of 40-years, instead of the 20-year renewal period 
currently provided for under 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, 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 
License-Renewal Period Exemption Request,'' September 28, 2004 
(ML041830697).
    With regard to generally licensed ISFSIs, the NRC staff is 
currently working on a proposed rulemaking 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 Certificates of Compliance for 
dry cask storage systems. See License and Certificate of Compliance 
Terms (73 FR 45173; August 4, 2008). 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 provide 
support for 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 Part 72 licenses. With regard to general 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 15 certified spent fuel storage cask designs. 10 CFR 
72.214 (2008). In addition, the Commission's reliance on the license 
renewal process in its 1990 review has proven well placed, with two 
specific Part 72 ISFSI licenses having been successfully renewed for an 
extended 40-year renewal period, and a third having been renewed for a 
period of 20 years. Further, while DOE did not meet its contractual 
obligation to begin removing spent fuel from reactor sites in 1998, 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.\19\
---------------------------------------------------------------------------

    \19\ Section 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 such 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; April 28, 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 (DCDC 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. Federal Claims Court, See, e.g., 
System Fuels Inc. v. U.S., 78 Fed. Cl. 769 (October 11, 2007).
    NRC has recently become aware that DOE is in the process of 
developing an amendment to the standard spent fuel contract for new 
nuclear power plants. This amendment would include a revised 
commitment for removal of spent fuel from new reactor sites by DOE. 
See discussion of Finding 5, infra.
---------------------------------------------------------------------------

    On the basis of the information described previously, the 
Commission proposes to reaffirm 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

    The focus of this finding is 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,\20\ 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 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 (d) 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).
---------------------------------------------------------------------------

    \20\ Subsequently, 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).
---------------------------------------------------------------------------

    With respect to the safety of water pool storage, the Commission 
found in 1984 that research and experience in the United States and 
Canada and other countries confirmed that long-term storage could be 
safely undertaken, e.g., that the cladding which encases spent fuel is 
highly resistant to failure (49 FR 34681-34682; August 31, 1984). In 
1990, the Commission determined that experience with water storage of

[[Page 59564]]

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 38510, 38511; September 18, 1990). 
In sum, wet storage was affirmed as a fully-developed technology with 
no associated major technical problems, based on both experience and 
scientific studies.
    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 simpler and more readily maintained, (49 
FR 34683-34684; August 31, 1984). By 1990, NRC and ISFSI operators had 
gained 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 Part 72, and NRC's 
promulgation of an amendment to Part 72, incorporating a monitored 
retrievable storage installation (MRS) (a dry storage facility) into 
the regulations had 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''--which might result in dispersal of radioactive 
material. The Commission noted that storage pools and ISFSIs are 
designed to safely withstand accidents caused either by natural or man-
made phenomena and that human error does not have the capability to 
create a major radiological hazard to the public due to the absence of 
high temperature and pressure conditions (49 FR 34684-34685; August 31, 
1984). By 1990, the NRC staff had spent several years studying in 
detail catastrophic loss of reactor spent fuel pool water, possibly 
resulting in a fuel fire in a dry pool, but concluded that because of 
the large inherent safety margins in the design and construction of a 
spent fuel pool no action was justified 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 by the realities that, except for 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 disruptive forces. Id. 
Although the 1990 decision examined several studies of accident risk, 
no considerations had arisen to affect 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 a greater amount of spent fuel as a result of reactor 
license renewals would not affect the Commission's findings on 
environmental impact. Finding 4 is not based on a determination of a 
specific number of reactors and amount of spent fuel generated. Finding 
4 evaluates the safety of spent fuel storage and lack of environmental 
impacts overall, noting that individual license renewal actions would 
be subject to safety and environmental reviews (55 FR 38512; September 
18, 1990).

B. Evaluation of Finding 4

    As explained previously, the focus of Finding 4 is 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 assure adequate safety is maintained and that 
there are no adverse environmental effects of storage of spent fuel in 
pools. The Office of Nuclear Reactor Regulation (NRR) and the former 
Office for Analysis and Evaluation of Operational Data (AEOD) 
independently evaluated the safety of spent fuel pool storage, and the 
results of these evaluations were documented in a memo to the 
Commission dated July 26, 1996, entitled ``Resolution of Spent Fuel 
Storage Pool Action Plan Issues,'' (ML003706364) and a separate memo to 
the Commission dated October 3, 1996), entitled, ``Assessment of Spent 
Fuel Pool Cooling,'' (ML003706381) (later published as NUREG-1275, Vol. 
12, ``Operating Experience Feedback Report: Assessment of Spent Fuel 
Cooling,'' February 1997), respectively. As a result of these studies, 
potential follow-up activities were identified. The NRR staff described 
NRC follow-up activities and associated industry actions in a memo to 
the Commission dated September 30, 1997, entitled ``Followup Activities 
on the Spent Fuel Pool Action Plan,'' (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 on 
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 were 
pertinent only to an operating reactor and not to spent fuel storage. 
Those regulations were not needed to ensure the safe maintenance of a 
permanently shutdown plant. This study also provided what are now known 
to be conservative bounding estimates of fuel coolability, and provided 
a number of conservative bounding estimates of offsite consequences for 
the most severe accidents that 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). This study

[[Page 59565]]

provided the results of the NRC staff's latest evaluation of the 
potential accident risk in a spent fuel pool at decommissioning plants. 
The report contained a discussion of fuel coolability for various types 
of accidents and included potential offsite consequences based on 
assumed radiation releases. The study demonstrated that using 
conservative and bounding assumptions regarding the postulated 
accidents, the predicted risk estimates were below that associated with 
reactor accidents and well below the Commission's safety goal. There 
was even some concern within the NRC that the level of conservatism in 
the analysis accompanying NUREG-1738 overstated the likelihood and 
severity of the more extreme spent fuel pool accidents. These concerns 
have proven valid, as subsequent studies (described in the following 
paragraph) have conclusively and consistently shown that the safety 
margins are much larger than indicated by previous studies, such as 
NUREG-1738. See The Attorney General of Commonwealth of Massachusetts, 
The Attorney General of California; Denial of Petitions for Rulemaking 
(73 FR 46204; August 8, 2008).
    Following the terrorist attacks of September 11, 2001, the NRC 
undertook a complete 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 which 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 extensive effort resulted in both the 
confirmation of the conservatism of past analyses and improved, 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 id.
    In 2003, the U.S. Congress asked the National Academies 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. A classified report was issued by the 
National Academy of Sciences (NAS) in July 2004, and an unclassified 
summary for public distribution was issued in 2005. 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. The NRC provided its 
response to the NAS in a letter to Senator Pete V. Domenici from NRC 
Chairman Nils J. Diaz, dated March 14, 2005 (ML050280428). 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 NAS report relevant to spent fuel pools. As a result of the 
improvements to spent fuel pool safety and security, together with 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 those safety improvements to spent 
fuel pool storage are applicable to non-security events (randomly 
initiated accidents), accident risk will also have been 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, NRC acknowledges 
several incidents of groundwater contamination originating from leakage 
in reactor spent fuel pools and associated structures. In 1990, the 
Commission specifically acknowledged two incidents where radioactive 
water leaked from spent fuel pools, one case resulting 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 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 Liquid Radioactive Release Lessons Learned 
Task Force was established by the NRC Executive Director for Operations 
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) (ML062650312). One of the 
incidents that prompted formation of the Task Force involved leakage 
from the Unit 1 and 2 spent fuel pools at Indian Point.\21\ Task Force 
Report, at 1, 5-6, 11. The Task Force reviewed historical data on 
inadvertent releases of radioactive liquids, including four additional 
incidents involving leakage 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 near-term 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 were negligible, the Task Force made 26 
specific recommendations for improvements to NRC's regulatory programs 
with regard to unplanned or unmonitored releases of radioactive liquids 
from nuclear power reactors.
---------------------------------------------------------------------------

    \21\ The NRC staff recently completed an inspection at Indian 
Point Units 1 and 2. NRC Inspection Report Nos. 05000003/2007010 and 
05000247/2007010, May 13, 2008 (ML0813404250). The purpose of the 
inspection was to assess Entergy's site groundwater characterization 
conclusions and the radiological significance of Entergy's discovery 
of a spent fuel pool leakage at Units 1 and 2. The NRC staff 
concluded that Entergy's response to the spent fuel pool leakage was 
reasonable and technically sound. The NRC staff stated that ``[t]he 
existence of on-site 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 
on-site conditions associated with groundwater contamination is 
negligible.'' Id.
---------------------------------------------------------------------------

    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'' 
(ML073230982) (Implementation Status). Actions taken in response to 
Task Force recommendations have 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),\22\ revisions to 
Inspection Procedure 71122.01, and an evaluation of whether further 
action was required to enhance the performance of SFP tell-tale 
drains.\23\ For example, Regulatory

[[Page 59566]]

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 will be 
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 to 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 (ML073230982).
---------------------------------------------------------------------------

    \22\ DG-4012 was formally issued as Regulatory Guide 4.21, 
``Minimization of Contamination and Radioactive Waste Generation: 
Life-Cycle Planning'' in June 2008.
    \23\ 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 (Industry Initiative). 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 
(ML072610036); ``Groundwater Protection Guidelines for Nuclear Power 
Plants: Public Edition, EPRI, Palo Alto, CA: EPRI Doc. No. 1016099, 
2008.
---------------------------------------------------------------------------

    In addition, on January 22, 2008; 73 FR 3812, the NRC published a 
proposed rule that would, in part, amend 10 CFR part 20 to clarify 
existing requirements by explicitly requiring licensees to conduct 
their operations to minimize the introduction of residual radioactivity 
into the site, including subsurface soil and groundwater. This proposed 
rule also would include a requirement that licensees perform surveys to 
evaluate the concentrations and quantities of residual radioactivity 
and the potential radiological hazards of residual radioactivity 
detected. Id. While unmonitored, unplanned releases continue to require 
the NRC's and licensees' attention, the NRC staff is confident that 
this issue will be adequately addressed through continued regulatory 
oversight of operating and new nuclear reactors and enhanced through 
the NRC's continued implementation of the Task Force recommendations. 
Therefore, the NRC staff continues to have assurance that no 
significant environmental impacts or safety concerns will result from 
extended storage in spent fuel pools.
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 results of 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.
    NRC and licensee experience to date with ISFSIs and with 
certification of 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, but 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 
addressing the problem and providing 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.'' NRC inspection and 
review guidance was also revised 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 would have to be resolved before the PFS AFR ISFSI could be 
built and operated,\24\ 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. The PFS 
facility was licensed for a

[[Page 59567]]

period of 20 years with the potential for license renewal.
---------------------------------------------------------------------------

    \24\ For example, on September 7, 2006, two separate Interior 
Department agencies refused PFS a lease to use tribal lands to store 
spent fuel and refused to grant a right-of-way to access the land. 
On July 17, 2007, PFS filed a complaint against the Interior 
Department challenging its decisions. The case has not yet been 
resolved. 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.
---------------------------------------------------------------------------

    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 (55 FR 38509-38513; 
September 18, 1990). 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.

    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 (55 FR 
38482; September 18, 1990):

    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.

    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 (55 FR 38509; September 18, 1990):

    [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.

    As explained previously in this document under the discussion of 
Finding 3, the NRC has renewed two 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, NRC is considering a 
rulemaking which would provide a 40-year license term for an ISFSI with 
the possibility of renewal. See License and Certificate of Compliance 
Terms, 73 FR 45173; August 4, 2008. 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 indicate no major issues with dry storage for up to 
100 years. 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).
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 the tragic events of 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 modified 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 Letter to Senator Pete V. Domenici from NRC 
Chairman Nils J. Diaz, dated March 14, 2005 (ML050280428) (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 attack. 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. The NRC issued 
additional orders on security, including security for spent fuel 
storage in January and April of 2003. 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.
    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

[[Page 59568]]

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 
that classified program became available, NRC provided licensees 
additional guidance on the Commission's expectations regarding the 
implementation of the orders on the spent fuel mitigation measures. 
Diaz Letter, at iv.
    More recently, on October 26, 2006; 71 FR 62664, the NRC issued a 
proposed rule to improve security measures at nuclear power reactors. 
The Commission is currently considering a draft final rule. In 
addition, 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).
i. Spent Fuel Pools
    SFPs 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). SFPs 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 SFPs is typically covered by 
about 25 feet of water that serves as both shielding and an effective 
protective cover against impacts directly on the stored fuel. Diaz 
Letter, at 2; The Attorney General of Commonwealth of Massachusetts, 
The Attorney General of California; Denial of Petitions for Rulemaking, 
73 FR 46206; August 8, 2008 (Denial of PRMs).
    The post September 11, 2001 studies noted previously 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 probability, and, accordingly, the risk of an SFP zirconium 
fire initiation will be less than reported in NUREG-1738 and previous 
studies. Given the physical robustness of SFPs, the physical security 
measures, and the SFP mitigation measures, and based upon NRC site 
evaluations of every SFP in the United States, the NRC has determined 
that the risk of an SFP 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 Denial of PRMs, 73 FR 
46207-08; 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 with 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 potential 
radiological release was possible, the size and nature of the release 
did not require the Commission to immediately implement additional 
security compensatory measures. Accordingly, the NRC staff has 
recommended, and the Commission has approved, development of risk-
informed, 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) 
(ML080250294); Staff Requirements--SECY-07-0148-Independent Spent Fuel 
Storage Installation Security Requirements for Radiological Sabotage, 
(December 18, 2007) (ML073530119). 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 potentially 
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, 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 proposing to revise Finding 2 to reflect 
its expectation that repository capacity will be available within 50-60 
years of the licensed life for operation of any reactor. Consistent 
with this, the Commission is proposing to revise 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 two specific Part 72 licenses for an extended 40 year period 
(for a total ISFSI

[[Page 59569]]

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 (55 FR 38482; September 18, 1990); and that the 30 year finding 
did not represent a technical limitation for safe and environmentally 
benign storage (55 FR 38509; September 18, 1990).

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-from-reactor facilities for 
this purpose. However, 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 whom 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 Part 72 regulations and 
licensing procedures were in place gave the Commission 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 NWPAA had undermined the ability of an MRS to 
provide for timely storage by linking the MRS to the siting and 
schedule for a repository (e.g., DOE was not permitted to select an MRS 
site until it had recommended a site for development as a repository). 
However, it found that whatever the uncertainty introduced by these 
NWPAA 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. In addition, the Commission cited to 
three situations where dry storage had been licensed at specific 
reactor sites (Surry, H.B. Robinson, and Oconee), and to several 
additional applications for licenses permitting dry cask storage at 
reactor sites. Id.
1. Operating and Decommissioned Reactors
    As in 1990, the NRC staff is not aware of any current operating 
reactor that has an insurmountable problem with safe storage of SNF. 
The options successfully being used to increase onsite storage capacity 
are spent fuel pool re-racking and fuel-pin consolidation, as well as 
onsite dry cask storage. 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 
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 ISFSI's with two additional 
licensees that are in the process of decommissioning.
    In addition, since 1990, the NRC has renewed the specific Part 72 
ISFSI licenses for both the Surry and H.B. Robinson plants for an 
extended 40-year period, instead of the 20-year renewal period 
currently provided for under Part 72. As discussed previously 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 licensees' 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 License-Renewal Period 
Exemption Request,'' September 28, 2004 (ML041830697).
    With regard to the uncertainty surrounding the contractual disputes

[[Page 59570]]

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).
    In total, there are currently 51 licensed ISFSIs being managed at 
47 sites across the country, under either specific or general Part 72 
NRC licenses. As explained in the discussion of Finding 3, 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 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.
    Finally, on June 3, 2008, the DOE submitted its license application 
for the proposed Yucca Mountain HLW repository, and on September 8, 
2008, NRC Staff notified DOE that it found the application acceptable 
for docketing (73 FR 53284; September 15, 2008). While the Commission 
can express no view on the quality or acceptability of the application 
in this evaluation of waste confidence, its submittal is evidence of a 
continued Federal commitment to providing for ultimate disposal of 
spent fuel.
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, the 
NRC staff understands that DOE has drafted language for a new amendment 
to the standard DOE-utility contracts. According to reports in the 
trade press, the revised contract will require DOE to accept spent fuel 
from any new nuclear power plants ten years after expiration of the 
operating license or any extension of the operating license. The 
utilities have not publicly expressed an opinion on the revised 
contracts to date. See Energy Daily, ED Vol. 36 No. 107, Thursday, June 
5, 2008. 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 receive written affirmation from 
DOE that the applicant is actively and in good faith negotiating with 
the DOE for such a contract. NWPA, Sec.302(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.
    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 such 
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 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 a high uncertainty regarding 
the growth 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 recognized and included in the 
activities of DOE, designers, and the NRC (see, for example, ``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 will undoubtedly 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 such a 
facility. See 10 CFR part 72 (53 FR 31651; August 19, 1988). Further, 
while there are unresolved issues that prevent 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, 
provide support for a continued finding of reasonable assurance that 
safe independent onsite spent fuel storage or offsite spent fuel 
storage will be made available if such 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 protracted 
adjudicatory hearing that resulted in over 70 ASLB and Commission 
decisions. The Commission also has a regulatory framework in place for 
licensing an MRS facility, should the need arise. In addition, based on 
discussions with the DOE and recent reports in the trade press, the NRC 
understands that a new standard contract providing for disposal of 
spent fuel by DOE is currently being prepared. This, coupled with the 
recent submission of a license application for the proposed Yucca 
Mountain repository, provides the NRC with continued confidence in the 
Federal commitment to providing for the ultimate disposal of spent 
fuel.

    For all the above reasons, the Commission proposes to reaffirm 
Finding 5.

    Dated at Rockville, Maryland, this 29th day of September 2008.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-23381 Filed 10-8-08; 8:45 am]
BILLING CODE 7590-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>