Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 59551 

displays a currently valid OMB control 

number. 

Regulatory Analysis 

A draft regulatory analysis has not 

been prepared for this proposed 

regulation because this regulation does 

not establish any requirements that 

would place a burden on licensees. 

Regulatory Flexibility Certification 

Under the Regulatory Flexibility Act 

of 1980, 5 U.S.C. 605(b), the 

Commission certifies that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The proposed 

rule would describe a revised basis for 

continuing in effect the current 

provisions of 10 CFR 51.23(b) which 

provides that no discussion of any 

environmental impact of spent fuel 

storage in reactor facility storage pools 

or ISFSIs for the period following the 

term of the reactor operating license or 

amendment or initial ISFSI license or 

amendment for which application is 

made is required in any environmental 

report, environmental impact statement, 

environmental assessment, or other 

analysis prepared in connection with 

certain actions. This rule affects only 

the licensing and operation of nuclear 

power plants or ISFSIs. Entities seeking 

or holding Commission licenses for 

these facilities do not fall within the 

scope of the definition of ‘‘small 

entities’’ set forth in the Regulatory 

Flexibility Act or the size standards 

established by the NRC at 10 CFR 2.810. 

Backfit Analysis 

The NRC has determined that the 

backfit rule (§§ 50.109, 70.76, 72.62, or 

76.76) does not apply to this proposed 

rule because this amendment would not 

involve any provisions that would 

impose backfits as defined in the backfit 

rule. Therefore, a backfit analysis is not 

required. 

List of Subjects in 10 CFR Part 51 

Administrative practice and 

procedure, Environmental impact 

statement, Nuclear materials, Nuclear 

power plants and reactors, Reporting 

and recordkeeping requirements. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; and 5 U.S.C. 553, the NRC 

is proposing to adopt the following 

amendment to 10 CFR Part 51. 

PART 51—ENVIRONMENTAL 

PROTECTION REGULATIONS FOR 

DOMESTIC LICENSING AND RELATED 

REGULATORY FUNCTIONS 

1. The authority citation for Part 51 

continues to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as 

amended, sec. 1701, 106 Stat. 2951, 2952, 

2953, (42 U.S.C. 2201, 2297(f)); secs. 201, as 

amended, 202, 88 Stat. 1242, as amended, 

1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note). Subpart A 

also issued under National Environmental 

Policy Act of 1969, secs. 102, 104, 105, 83 

Stat. 853–854, as amended (42 U.S.C. 4332, 

4334, 4335), and Public Law 95–604, Title II, 

92 Stat. 3033–3041; and sec. 193, Public Law 

101–575, 104 Stat. 2835 (42 U.S.C. 2243). 

Sections 51.20, 51.30, 51.60, 41.80, and 51.97 

also issued under secs. 135, 141, Public Law 

97–425, 96 Stat. 2232, 2241, and sec. 148, 

Public Law 100–203, 101 Stat. 1330–223 (42 

U.S.C. 10155, 10161, 10168). Section 51.22 

also issued under sec. 274, 73 Stat. 688, as 

amended by 92 Stat. 3036–3038 (42 U.S.C. 

2021) and under Nuclear Waste Policy Act of 

1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 

10141). Sections 51.43, 51.67, and 51.109 

also under Nuclear Waste Policy Act of 1982, 

sec 114(f), 96 Stat 2216, as amended (42 

U.S.C. 10134 (f)). 

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

to read as follows: 

§ 51.23 Temporary storage of spent fuel 

after cessation of reactor operation— 

generic determination of no significant 

environmental impact. 

(a) The Commission has made a 

generic determination that, if necessary, 

spent fuel generated in any reactor can 

be stored safely and without significant 

environmental impacts 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 until a disposal facility can 

reasonably be expected to be available. 

* * * * * 

Dated at Rockville, Maryland, this 29th day 

of September 2008. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E8–23384 Filed 10–8–08; 8:45 am] 

BILLING CODE 7590–01–P 

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 


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1The 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. 

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 

Carol.Gallagher@nrc.gov. 

Mail comments to: Secretary, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, ATTN: 

Rulemakings and Adjudications Staff. 

E-mail comments to: 

Rulemaking.Comments@nrc.gov. 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 

pdr.resource@nrc.gov. 

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, 

neil.jensen@nrnc.gov. 

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

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: 


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(2) The Commission finds reasonable 

assurance that at least one mined 

geologic repository will be available 

within the first quarter of the twentyfirst century, and 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 


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2Under 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. 

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). 

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 HighLevel 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 


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3NRC’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. 

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. 

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 


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4Under 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). 

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). 

The Commission also identified 

institutional uncertainties that needed 

to be resolved: (1) Measures for dealing 

with Federal-state disputes; (2) An 

assured funding mechanism that would 

be sufficient over time to cover the 

period for developing a repository; (3) 

An organizational capability for 

managing the HLW program; and (4) A 

firm schedule and establishment of 

responsibilities. The Commission 

expressed its confidence in the ability of 

the provisions of the then recentlypassed NWPA to timely resolve these 

uncertainties (49 FR 34675–34679; 

August 31, 1984). 

With respect to the second prediction, 

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 


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5NRC 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. 

7The 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. 

8On 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)). 

9Section 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). 

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). 

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 atreactor 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). 

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. 

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 


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59558 Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 

10Challenges 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. 

11The 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). 

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. 

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

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 


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12These 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). 

13Both 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. 

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. 

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 wellcharacterized sites with similar HLW 

disposal concepts. DOE began 

characterization of the YM site in 1982, 

made its suitability determination in 

2002, and submitted a license 

application in 2008. 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

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 longterm 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, 


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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 


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14Based 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. 

15Six 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. 

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. 

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 

§ 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) 


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16Part 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). 

17These reactor sites include Maine Yankee, 

Yankee Rowe, Connecticut Yankee (also known as 

Haddam Neck), and Big Rock Point. 

18There are several additional sites with specific 

Part 72 ISFSI licenses that are in the process of 

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

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). 

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

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 


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19Section 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. 

20Subsequently, 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). 

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 pooltype 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

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 longterm 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 longterm integrity of spent fuel under water 

pool storage conditions; (2) the structure 

and component safety for extended 

facility operation for storage of spent 

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

storage; and (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). 

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 


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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 fullydeveloped 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 longterm integrity of spent fuel under water 

pool storage conditions; (2) the structure 

and component safety for extended 

facility operation for storage of spent 

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

storage; and (4) the potential risks of 

accidents and acts of sabotage at spent 

fuel storage facilities. 

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 


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21The 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. 

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 

Continued 

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. 

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 telltale drains.23 For example, Regulatory 


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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. 

24For 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. 

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). 

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 


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period of 20 years with the potential for 

license renewal. 

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 


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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, offnormal, 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 


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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-fromreactor 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 LicenseRenewal Period Exemption Request,’’ 

September 28, 2004 (ML041830697). 

With regard to the uncertainty 

surrounding the contractual disputes 


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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 liquidmetal 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 


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