# Waste Confidence Decision Update

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-31637

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 23, 2010
- **Citation:** 75 FR 81037

## Text

NUCLEAR REGULATORY COMMISSION
10 CFR Part 51
[NRC-2008-0482]
Waste Confidence Decision Update

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Update and final revision of Waste Confidence Decision.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC or Commission) is updating its Waste Confidence Decision of 1984 and, in a parallel rulemaking

proceeding, revising its generic determinations in the NRC's regulations.

ADDRESSES:

You can access publicly available documents related to this document using the following methods:

NRC's Public Document Room (PDR):
The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.

NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are available electronically at the NRC's electronic Reading Room at
http://www.nrc.gov/reading-rm/adams.html.
From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
pdr.resource@nrc.gov.

Federal Rulemaking Web site:
Public comments and supporting materials related to this final rule can be found at
http://www.regulations.gov
by searching on Docket ID: NRC-2008-0482.

FOR FURTHER INFORMATION CONTACT:

Tison Campbell, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone:
301-415-8579,
e-mail: tison.campbell@nrc.gov;
Lisa London, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3233,
e-mail: lisa.london@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

On September 18, 1990 (55 FR 38474), the NRC issued a decision reaffirming and revising, in part, the five Waste Confidence Findings reached in its 1984 Waste Confidence Decision. The 1984 Decision and the 1990 update to the Decision were products of rulemaking proceedings designed to assess the degree of assurance that radioactive wastes generated by nuclear power plants can be safely disposed of, to determine when disposal or offsite storage would be available, and to determine whether radioactive wastes can be safely stored onsite past the expiration of existing facility licenses until offsite disposal or storage is available. In 2008, the Commission decided to undertake a review of its Waste Confidence Decision and Rule as part of an effort to enhance the efficiency of combined license proceedings for applications for nuclear power plant (NPP) licensees anticipated in the near future by ensuring that the findings are up to date.

The Commission has considered developments since 1990 and has reviewed its five prior findings and supporting environmental analysis. As a result of this review, the Commission is revising the second and fourth findings in the Waste Confidence Decision as follows:

Finding 2: The Commission finds reasonable assurance that sufficient mined geologic repository capacity will be available to dispose of the commercial high-level radioactive waste and spent fuel generated in any reactor when necessary.

Finding 4: The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely without significant environmental impacts for at least 60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor in a combination of storage in its spent fuel storage basin and either onsite or offsite independent spent fuel storage installations.

The Commission reaffirms the three remaining findings. Each finding and the reasons for revising or reaffirming the finding are discussed below. In keeping with revised Findings 2 and 4, the Commission is concurrently publishing in this issue of the
Federal Register
conforming amendments to 10 CFR 51.23(a), which provides a generic determination of the environmental impacts of storage of spent fuel at, or away from, reactor sites after the expiration of reactor operating licenses, and expresses reasonable assurance that sufficient geologic disposal capacity will be available when necessary.

In October 1979, the NRC initiated a rulemaking proceeding, known as the Waste Confidence proceeding, to assess its degree of assurance that radioactive wastes produced by NPPs “can be safely disposed of, to determine when such disposal or offsite storage will be available, and to determine whether radioactive wastes can be safely stored onsite past the expiration of existing facility licenses until offsite disposal or storage is available” (44 FR 61372, 61373; October 25, 1979). The Commission's action responded to a remand from the U.S. Court of Appeals for the District of Columbia Circuit in
State of Minnesota
v.
NRC,
602 F.2d 412 (DC Cir.1979). That case questioned whether an offsite storage or disposal solution would be available for the spent nuclear fuel (SNF) produced at the Vermont Yankee and Prairie Island NPPs at the expiration of the licenses for those facilities in 2007-2009 or, if not, whether the SNF could be stored at those reactor sites until an offsite solution was available.

The Waste Confidence proceeding also stemmed from the Commission's statement, in denying a petition for rulemaking filed by the Natural Resources Defense Council (NRDC), that it intended to periodically reassess its finding of reasonable assurance that methods of safe permanent disposal of high-level radioactive waste (HLW) would be available when they were needed. Further, the Commission stated that, as a matter of policy, it “would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely” (42 FR 34391, 34393; July 5, 1977),
pet. for rev. dismissed sub nom., NRDC
v.
NRC,
582 F.2d 166 (2d Cir. 1978)).
1

1
The NRDC petition asserted that the Atomic Energy Act of 1954 (AEA). Public Law 83-703, 68 Stat. 919 (1954), required NRC to make a finding, before issuing an operating license for a reactor, that permanent disposal of HLW generated by that reactor can be accomplished safely. The Commission found that the AEA did not require this safety finding to be made in the context of reactor licensing, but rather in the context of the licensing of a geologic disposal facility.

The Waste Confidence proceeding resulted in the following five Waste Confidence Findings, which the Commission issued on August 31, 1984:

(1) The Commission finds reasonable assurance that safe disposal of HLW and SNF in a mined geologic repository is technically feasible;

(2) The Commission finds reasonable assurance that one or more mined geologic repositories for commercial HLW and SNF will be available by the years 2007-2009 and that sufficient repository capacity will be available within 30 years beyond the expiration of any reactor operating license to dispose of existing commercial HLW and SNF originating in such reactor and generated up to that time;

(3) The Commission finds reasonable assurance that HLW and SNF will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all HLW and SNF;

(4) The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations (ISFSIs);

(5) The Commission finds reasonable assurance that safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed (49 FR 34658).

Based on these findings, the Commission promulgated 10 CFR 51.23(a) to provide a generic determination that for at least 30 years

beyond the expiration of reactor operating licenses, no significant environmental impacts will result from the storage of spent fuel in reactor facility storage pools or ISFSIs located at reactor or away-from-reactor sites and that the Commission had reasonable assurance that a permanent disposal facility would be available by 2007-2009.

The Commission conducted a review of its findings in 1989-1990, which resulted in the revision of Findings 2 and 4 to reflect revised expectations for the date of availability of the first repository, and to clarify that the expiration of a reactor's operating license referred to the full 40-year initial license for operation, as well as any additional term of a revised or renewed license:

(2) The Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of any reactor to dispose of the commercial HLW and SNF originating in such reactor and generated up to that time;

(4) The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin, or at either onsite or offsite ISFSIs.

(55 FR 38474; September 18, 1990)

The Commission similarly amended the generic determination in 10 CFR 51.23(a):

The Commission has made a generic determination that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin or at either onsite or offsite [ISFSIs]. Further, the Commission believes there is reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the commercial [HLW and SNF] originating in such reactor and generated up to that time. (55 FR 38472; September 18, 1990)

.

This generic determination is applied in licensing proceedings conducted under 10 CFR parts 50, 52, 54, and 72.
See
10 CFR 51.23(b) (2010).

In 1999, the Commission reviewed its Waste Confidence Findings and concluded that experience and developments since 1990 had confirmed the findings and made a comprehensive reevaluation of the findings unnecessary. It also stated that it would consider undertaking a reevaluation when the pending repository development and regulatory activities had run their course or if significant and pertinent unexpected events occurred that raise substantial doubt about the continuing validity of the Waste Confidence Findings (64 FR 68005; December 6, 1999). The Commission has not found that the criteria put forth in 1999 for reevaluating its findings have been met. But because the Commission is now preparing to conduct a significant number of proceedings on combined license (COL) applications for new reactors, and the issue of waste confidence has been raised in some of those proceedings and may be raised in others, it is prudent to take a fresh look at the NRC's Waste Confidence Findings now, before completing the agency's review of new reactor license applications.

On February 14, 2002, the Secretary of Energy recommended the Yucca Mountain (YM) site for the development of a repository to the President thereby setting in motion the approval process set forth in sections 114 and 115 of the Nuclear Waste Policy Act, as amended (NWPA).
See
42 U.S.C. 10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2) (2006). On February 15, 2002, the President recommended the site to Congress. On April 8, 2002, the State of Nevada submitted a notice of disapproval of the site recommendation. Congress responded on July 9, 2002, by passing a joint resolution approving the development of a repository at YM, which the President signed on July 23, 2002. See Public Law 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 2004)).

On June 3, 2008, the Department of Energy (DOE) submitted the “Yucca Mountain Repository License Application,” seeking NRC's authorization to begin construction of a permanent HLW repository at YM. U.S. Department of Energy, License Application for a High-Level Waste Geologic Repository at Yucca Mountain (2008), available at
http://www.nrc.gov/waste/hlw-disposal/yucca-lic-app.html.
On September 8, 2008, the NRC staff found that the application contained sufficient information for the staff to begin its detailed technical review, and docketed the application (73 FR 53284; September 15, 2008). On October 17, 2008, the Commission issued a “Notice of Hearing and Opportunity to Petition for Leave to Intervene” (73 FR 63029; October 22, 2008). Requests for hearing were received from 12 parties and 2 interested governmental entities; these requests included 318 contentions to the application.
2

The Construction Authorization Boards granted 10 of these petitions to intervene and admitted all but 17 of the 318 contentions (ADAMS Accession Number ML091310479).

2
ADAMS Accession Numbers ML083540096, ML083540230, ML083550015, ML083570102, ML083570371, ML083570416, ML083570731, ML083570732, ML083570741, ML083570761, ML083570773, ML083570775, ML083570779, ML083570788, ML083570789, ML083590091, ML090050465, ML083540836.

On January 29, 2010, President Obama directed the Secretary of Energy to create a “Blue Ribbon Commission on America's Nuclear Future” to evaluate options for the back-end of the nuclear fuel cycle. See Presidential Memorandum—Blue Ribbon Commission on America's Nuclear Future (January 29, 2009), available at
http://www.whitehouse.gov/the-press-office/presidential-memorandum-blue-ribbon-commission-americas-nuclear-future.

In the YM proceeding, DOE filed a “Motion to Stay the Proceeding,” on February 1, 2010, which stated that the President, in the proposed budget for fiscal year 2011, “directed that the Department of Energy ‘discontinue its application to the U.S. Nuclear Regulatory Commission for a license to construct a high-level waste geologic repository at Yucca Mountain in 2010 * * *' ” (ADAMS Accession Number ML100321641 at 1). The Motion also stated that the proposed budget indicated that all DOE funding for YM would be eliminated in 2011.
Id.
Therefore, DOE stated its intent to withdraw the license application by March 3, 2010, and requested a stay of the proceeding to avoid unnecessary expenditure of resources by the Board and parties.
See Id.
at 2. Construction Authorization Board 4 granted a stay of the proceeding on February 16, 2010 (ADAMS Accession Number ML100470423).

On February 19, 2010, Aiken County, South Carolina filed an action in the U.S. Court of Appeals for the District of Columbia Circuit, challenging DOE's decision to seek withdrawal of the license application. Similar lawsuits filed by three individuals living near Hanford, Washington (the Ferguson Petitioners), the State of South Carolina, and the State of Washington were consolidated into one proceeding now before the District of Columbia Circuit.
See In re Aiken
County, No. 10-1050 (and consolidated cases) (DC Cir.).

On March 3, 2010, DOE filed with the NRC a Motion to withdraw its license application with prejudice (ADAMS Accession Number ML100621397). On June 29, 2010, Construction Authorization Board 4 issued a Memorandum and Order (Granting Intervention to Petitioners and Denying Withdrawal Motion), LBP-10-11, __ NRC __, denying DOE's motion to withdraw as outside its authority under the NWPA (ADAMS Accession Number ML101800299). The Secretary of the Commission invited briefs from all the parties in the YM proceeding on whether to review and whether to uphold or reverse the Board's decision. The Commission has not yet acted on these questions.

Although the proposed updates to the Waste Confidence Decision and Rule did not consider some of these recent developments, the Commission has assumed, for the purposes of these updates, that YM would not be built. Even so, the new YM developments are pertinent. The Commission believes that the updates to the Waste Confidence Decision and Rule reflect the uncertainty regarding the timing of the availability of a geologic repository for SNF and HLW. The Commission, as a separate action, has directed the staff to develop a plan for a longer-term rulemaking and Environmental Impact Statement (EIS) to assess the environmental impacts and safety of long-term SNF and HLW storage beyond 120 years (SRM-SECY-09-0090; ADAMS Accession Number ML102580229). This analysis will go well beyond the current analysis that supports at least 60 years of post-licensed life storage with eventual disposal in a deep geologic repository. The Commission believes that a more expansive analysis is appropriate because it will provide additional information (beyond the reasonable assurance the Commission is recognizing in the current rulemaking) on whether spent fuel can be safely stored for a longer time, if necessary. This analysis could reduce the frequency with which the Commission must, as a practical matter, consider waste storage capabilities. The staff's new review will require an analysis and, to some extent, a forecast of the safety and environmental impacts of storage for extended periods of time beyond that currently recognized in 10 CFR 51.23 and the Waste Confidence Decision. While storage of spent fuel for 60 years beyond licensed life has been shown through experience or analyses to be safe and not to have a significant environmental impact, the proposed technical analysis will go well beyond the time frame of existing requirements.

Even though the Commission has not determined whether this particular analysis will result in a different conclusion concerning the environmental impacts of extended spent fuel storage, the Commission believes that this unprecedented long-term review should be accompanied by an EIS. Preparing an EIS will ensure that the agency considers these longer-term storage issues from an appropriate perspective. The Commission has therefore decided to exercise its discretionary authority under 10 CFR 51.20(a)(2) and is directing the staff to prepare a draft EIS to accompany the proposed rule developed as a result of this longer-term analysis. The updates to the Waste Confidence Decision in this document and the final rule published in this issue of the
Federal Register
rely on the best information currently available to the Commission and therefore are separate from this long-term initiative. The updates to the Waste Confidence Decision and Rule are not dependent upon the staff completing any action outside the scope of these revisions to the Waste Confidence Decision and Rule.

Based upon the technical and environmental analysis contained in this document, and discussed at length below, the Commission has prepared this update of the Waste Confidence Decision and now makes the following revisions to Findings 2 and 4:

(2) The Commission finds reasonable assurance that sufficient mined geologic repository capacity will be available to dispose of the commercial high-level radioactive waste and spent nuclear fuel generated by any reactor when necessary.

(4) The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor in a combination of storage in its spent fuel storage basin and either onsite or offsite ISFSIs.

The update to the Waste Confidence Decision restates and supplements the bases for the earlier findings and addresses the public comments received on the proposed revisions to the findings.

The Commission is also concurrently publishing in this issue of the
Federal Register
a final rule revising 10 CFR 51.23(a) to conform to the revisions of Findings 2 and 4.

Responses to Public Comments

The NRC received comments from environmental and other public interest organizations; the nuclear industry; States, local governments, an Indian Tribe, and inter-governmental organizations; and individuals. Comments from the 158 letters, including a late supplemental letter from the Attorney General of New York, have been categorized and grouped under 8 issues for purposes of this discussion. The issues include comments made in two form letters received from 1,990 and 941 commenters, respectively.

Issue 1: Compliance of the Waste Confidence Decision With the National Environmental Policy Act (NEPA)

Comment 1:
A large number of commenters stated that the NRC has not complied with NEPA in issuing its proposed revisions to the Waste Confidence Decision and to its generic determination in 10 CFR 51.23(a) because they believe that the revisions need to be supported by a Generic Environmental Impact Statement (GEIS). The National Resources Defense Council (NRDC) argues that these two agency actions “are, in effect, generic licensing decisions that allow for the production of additional spent reactor fuel and other radioactive wastes associated with the uranium fuel cycle—essentially in perpetuity.” Thus, these “generic licensing decisions,” in NRDC's view, must “be accompanied by a [GEIS] that fully assesses the environmental impacts of the entire uranium fuel cycle, including health and environmental impacts and costs, and that examines a reasonable array of alternatives, including the alternative of not producing any additional radioactive waste.”

Texans for a Sound Energy Policy (TSEP) stated that “the NRC has relied on the Waste Confidence Decision to license and re-license many nuclear power plants, and therefore it constitutes a major federal action significantly affecting the environment,” requiring preparation of an EIS.

The Attorney General of New York argued that the NRC should “require and perform a site-specific evaluation of environmental impacts of spent fuel storage at each reactor location, taking into account environmental factors including surrounding population density, water resources, seismicity, subsurface geology, and topography along with the design, construction, and operating experience of the spent fuel pool in question and the layout of the fuel assemblies in that pool.” The Attorney General believes that these “new factual conclusions also provide compelling evidence to support * * * [consideration] in relicensing

proceedings, such as the ongoing proceeding for the Indian Point power reactors, of any properly presented environmental and safety contention focused on the adequacy of mitigation measures taken or to be taken at that site to address the safety and environmental impacts flowing from the 20 additional years of spent fuel storage at the reactor site, the increased volume of spent fuel created during those 20 years, and the indefinite storage at that reactor site of all the waste generated by that reactor.” Finally a form letter, used by many commenters, asserts “it is appropriate that any major Federal action on radioactive waste (such as changing the Waste Confidence Decision) be considered in a generic (programmatic) NEPA proceeding” that includes all aspects of the nuclear fuel chain.

NRC Response:
In considering the NRC's compliance with NEPA in revising its Waste Confidence Decision and Rule, it is important to keep in mind the limited scope of these revisions. The NRC is amending its generic determination of no significant environmental impact from the temporary storage of spent fuel after cessation of reactor operation contained in 10 CFR 51.23(a) to conform it to the Commission's revised Findings 2 and 4 of the Waste Confidence Decision.

In revised Finding 4, the Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 60 years (rather than 30 years, as in the present finding) beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor in a combination of storage in its spent fuel storage basin and either onsite or offsite ISFSIs. The revised generic determination in 10 CFR 51.23(a) is dependent upon the environmental analysis supporting revised Finding 4.

The revision also incorporates the Commission's supporting analysis for revised Finding 2, which looks at the time necessary to develop a repository (about 25-35 years) and concludes that reasonable assurance exists that sufficient mined geologic repository capacity will be available when necessary to dispose of the commercial HLW and SNF originating in such reactor and generated up to that time. As the Commission indicated in its Staff Requirements Memorandum (SRM) approving publication of this Decision and the final rule, the changes to Finding 2 do not mean that the Commission has endorsed indefinite storage of SNF and HLW.
3

See
SRM-SECY-09-0090; ADAMS Accession Number ML102580229.

3
This reflects the Commission's confidence that a repository will be made available before the storage of the SNF and HLW becomes unsafe or would result in significant environmental impacts. Finding 2 also reflects the Commission's belief that it cannot have confidence in a target date because it cannot predict when the societal and political obstacles to a successful repository program will be overcome. Once those obstacles are overcome, the Commission has confidence that a repository can be sited, licensed, and constructed within 25-35 years.

The revised generic determination is not a generic licensing decision—it generically deals with one aspect of licensing decisions that have yet to be made. It does not authorize the operation of a NPP, the renewal of a license of a NPP, or the production of spent fuel by a NPP. NPPs and renewals of operating licenses are licensed in individual licensing proceedings. The NRC must prepare a site-specific EIS in connection with any type of application to construct and operate a NPP. See 10 CFR 51.20(b). For operating license renewals, the NRC may rely on NRC's
GEIS for License Renewal of Nuclear Plants, NUREG-1437,
May 1996, for issues that are common to all plants and must also prepare a Supplemental EIS that evaluates site-specific issues not discussed in the GEIS or “new and significant information” regarding issues that are discussed in the

GEIS.
4

See
10 CFR part 51, subpart A, appendix B.

4
The Commission issued a proposed rule updating the 1996 GEIS on July 31, 2009 (74 FR 38117) for a 75-day public comment period; the staff is currently preparing responses to the public comments.

Both types of licensing proceedings are supported by both generic and specific EISs. The generic determination in § 51.23(a) does play a role in the environmental analyses of the licensing and license renewal of individual NPPs; it excuses applicants for those licenses and the NRC from conducting an additional site-specific environmental analysis only
within the scope of the generic determination in 10 CFR 51.23(a).
Thus, 10 CFR 51.23(b) provides:

Accordingly, * * * within the scope of the generic determination in paragraph (a) of this section, no discussion of any environmental impact of spent fuel storage in reactor facility storage pools or [ISFSIs]
for the period following the term
of the reactor operating license or amendment, reactor combined license or amendment, or initial ISFSI license or amendment for which application is made, is required in any environmental report, [EIS], [EA], or other analysis prepared in connection with the issuance or amendment of an operating license for a [NPP] under parts 50 and 54 of this chapter, or issuance or amendment of a combined license for a [NPP] under parts 52 and 54 of this chapter, or the issuance of an initial license for storage of spent fuel at an ISFSI, or any amendment thereto (emphasis added).

In short, the environmental analysis, which is done as part of the licensing or license renewals of individual NPPs, as well as the initial licensing of an ISFSI, does consider the potential environmental impacts of storage of spent fuel during the term of the license. What is not considered in those proceedings—due to the generic determination in 10 CFR 51.23(a)—is the potential environmental impact of storage of spent fuel for a 60-year period after the end of licensed operations or the potential environmental impacts of ultimate disposal. Environmental analysis for this period is covered by the environmental analysis the NRC has done in this update to the Waste Confidence Decision, particularly under Findings 3, 4, and 5. This analysis enables the Commission to generically resolve this issue because it demonstrates that spent fuel can be safely stored and managed under a 10 CFR part 50 or 10 CFR part 72 license after the cessation of reactor operations for at least a 60-year period. Further, if it becomes clear that a repository will not be available by the expiration of the 60-year post licensed life period, the Commission will revisit the Waste Confidence Decision and Rule early enough to ensure that it continues to have reasonable assurance of the safe storage without significant environmental impacts of the SNF and HLW.

In addition, the NRC's Waste Confidence Decision and Rule do not pre-approve any particular waste storage or disposal site technology—although the Decision does evaluate the technical feasibility of deep geologic disposal—nor do they require that a specific cask design be used for storage. Individual licensees and applicants, or in the case of a HLW repository, DOE, will have to apply for and meet all of the NRC's safety and environmental requirements before the NRC will issue a license for storage or disposal.

The NRC must prepare an EIS when the proposed action is a major Federal action significantly affecting the quality of the human environment or when the proposed action involves a matter that the Commission, in the exercise of its discretion, has determined should be covered by an EIS. 10 CFR 51.20(a). The NRC's rulemaking action here is to incorporate a revised generic determination into 10 CFR 51.23(a), which expands from at least 30 years to at least 60 years after licensed life the period during which the Commission has confidence that spent fuel can be

safely stored without significant environmental impacts and to state its confidence that a permanent repository will be available when necessary. As the Commission explained in 1984 and 1990, this final rulemaking action formally incorporating the revised generic determination in the Commission's regulations does not have separate independent environmental impacts (49 FR 34693; August 31, 1984, 55 FR 38473; September 18, 1990). The environmental analysis that the revised generic determination is based on is found in this update to the Waste Confidence Decision, which serves as the Environmental Assessment (EA) for the rule.

The updates to the Waste Confidence Decision and Rule, as explained above, do not authorize any licensing or other Federal action. The rule does have the effect of removing from a reactor operating license proceeding, license renewal proceeding, or initial ISFSI licensing proceeding the issue of whether safe storage of SNF can be accomplished without any significant environmental impact for an additional 30 years beyond the 30 years provided by the current generic determination. The update to the Waste Confidence Decision explains and documents the Commission's continued reasonable assurance that this extended storage period will have no significant environmental impacts. Given this conclusion, a finding of no significant environmental impact (FONSI) may be made and preparation of an EIS is not required.

Comment 2:
A number of commenters asserted that the NRC, in making its FONSI, has not complied with its procedural requirements for a FONSI: 10 CFR 51.32, or with the requirements of the Council on Environmental Quality: 40 CFR 1508.13. In particular, some commenters claim that the NRC has not published an EA, as required by 10 CFR 51.32, and has not identified all the documents that the FONSI is based on. TSEP asserts that the NRC's alleged failure to comply with its procedural requirements for a FONSI also results in a violation of the Administrative Procedure Act because it means the public has not had an opportunity to comment on the basis for the FONSI.

NRC Response:
As explained in response to Comment 1, the only Federal action involved in this rulemaking is the amendment of 10 CFR 51.23(a). This amendment adopts the expansion, by 30 years, of the Commission's Finding 4 in its 1990 Waste Confidence Decision that spent fuel generated in any reactor can be stored safely and without significant environmental impacts after the licensed life for operation of the reactor; the amendment also captures the revisions to Finding 2 in the Waste Confidence Decision that deep geologic disposal capacity will be available when necessary. This is the action described in the NRC's proposed FONSI (
See
73 FR 59550; October 9, 2008).

The formal incorporation of revised Findings 2 and 4 into 10 CFR 51.23(a) has no separate independent environmental impact from the revisions of Findings 2 and 4. The update and revision of the Waste Confidence Decision is the EA supporting the action and the basis for the FONSI and, as evidenced by the breadth of comments received, the findings of the Waste Confidence Decision have been made available for public review and comment. The update was undertaken, as a matter of discretion, to ensure the currency of the Waste Confidence Findings, which have not been changed in nearly 20 years.

The NRC's procedural requirements for an EA call for a brief discussion of the need for the proposed action, alternatives to that action, and the environmental impacts of the proposed action and alternatives as well as a list of agencies and persons consulted and identification of the sources used.
See
10 CFR 51.30(a). The Commission's proposal explained that the need for an update of the 1990 Waste Confidence Decision was prompted by a desire to make anticipated licensing proceedings for new reactors more efficient by resolving any concerns that the generic determination was out of date and could not be relied upon in these licensing proceedings (
See
73 FR 59553, 59558; October 9, 2008). The Commission's proposed rule also explicitly raised the question, in the context of revising Finding 2, whether it should remove a target date from Finding 2 and make a general finding of reasonable assurance that SNF generated in any reactor can be stored safely and without significant environmental impacts until a disposal facility can reasonably be expected to be available (
See
73 FR 59561-59562; October 9, 2008).

The Commission explained what the basis of this alternative finding would be:

In other words, in response to the court's concerns that precipitated the original Waste Confidence proceeding, the Commission could now say that there is no need to be concerned about the possibility that spent fuel may need to be stored at onsite or offsite storage facilities at the expiration of the license (including a renewed license) until such time as a repository is available because we have reasonable assurance that spent fuel can be so stored for long periods of time, safely and without significant environmental impact. Such a finding would be made on the basis of the Commission's accumulated experience of the safety of long-term spent fuel storage with no significant environmental impact (
see
Finding 4) and its accumulated experience of the safe management of spent fuel storage during and after the expiration of the reactor operating license (
see
Finding 3).
Id.

The Commission explicitly sought public comment on whether any additional information would be needed to make this change. The update to the Waste Confidence Decision shows that there would be no difference between the environmental impacts of the proposed action of extending the time period for safe storage of SNF by 30 years and the no-action alternative of leaving it as it is. The Commission also stated in its proposed update and rule that the environmental impacts of the alternative of indefinite storage may be the same, but found no need to make this prediction due to its expectation that a repository will be available within 50-60 years of the end of any reactor's license for the disposal of its spent fuel.

The Commission has, however, now reconsidered its position regarding the use of the 50-60 year target date: The Commission has confidence that spent fuel can be safely stored without significant environmental impact for long periods of time as described in its discussion of Findings 3, 4, and 5. But there are issues beyond the Commission's control, including the political and societal challenges of siting a HLW repository, that make it premature to predict a precise date or time frame when a repository will become available.
5

The Commission has therefore decided not to adopt a specific time frame in Finding 2 or its final rule. Instead, the Commission is expressing its reasonable assurance that a repository will be available “when necessary.”

5
These political and societal issues are discussed in the analysis of Finding 2 in this document.

The Commission believes that this standard accurately reflects its position, as discussed in the analysis supporting Finding 2, that a repository can be constructed within 25-35 years of a Federal decision (
e.g.,
congressional action or executive order) to start a new repository program. The Commission continues to have confidence, as expressed in Findings 3 and 5, that safe and sufficient onsite or offsite storage capacity is and will be available until the waste is sent to a repository for disposal. In addition, revised Finding 4 supports safe onsite or offsite storage without significant environmental

impacts for at least 60 years beyond the end of the licensed life for operation of any nuclear power reactor. Given that long period of time, the current “Blue-Ribbon Commission” studying options for handling SNF, the Commission's direction to the NRC staff to consider whether it is feasible to expand the 60-year period for safe storage, and a continued Federal obligation to site and build a repository under the Nuclear Waste Policy Act, the Commission has reasonable assurance that disposal capacity will become available when necessary and that there will be sufficient safe and environmentally sound storage for all of the spent nuclear fuel until disposal capacity becomes available.

Further, the Commission has decided not to endorse the concept of indefinite storage that was discussed with the alternative Finding 2 in the proposed rule (73 FR 59561-59562; October 9, 2008). The Commission has determined that it is not necessary to endorse indefinite storage if there is no target date for a repository because the Commission has confidence that either a repository will be available before the expiration of the 60 years post-licensed life discussed in Finding 4 or that the Waste Confidence Decision and Rule will be updated and revised if the expiration of the 60-year period approaches without an ultimate disposal solution for the HLW and SNF.

With respect to the claim that the NRC must make the documents on which its FONSI relies available to the public, the commenters are correct that the NRC must disclose all portions of the documents that informed its NEPA analysis and that are not exempt from public disclosure under the Freedom of Information Act (FOIA). The Commission acknowledged this fact when, in
Pacific Gas and Electric Co.
(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-01, 67 NRC 1 (2008), it directed the NRC staff to prepare a complete list of the documents on which it relied in preparing its EA.

In the case of the update to the Waste Confidence Decision, the NRC has complied with this standard—all of the documents relied upon in preparing the update to the Waste Confidence Decision and Rule are referenced. Two of the referenced documents are not publicly available: reports concerning the safety and security of spent fuel pool storage issued by Sandia National Laboratories and the National Academy of Sciences (NAS), which are Classified, Safeguards Information, or Official Use Only—Security Related Information. Although these documents cannot be released to the public, redacted or publicly available summaries are available: A redacted version of the Sandia study can be found in ADAMS at (ADAMS Accession Number ML062290362) and the unclassified summary of the NAS report can be purchased or downloaded for free by accessing the NAS Web site at:
http://www.nap.edu/catalog.php?record_id=11263.
No other non-public documents are referenced in the Waste Confidence Decision.

In sum, the NRC's FONSI identifies the proposed action and relies upon an EA that explains at considerable length the reasons why this action will not have a significant effect on the quality of the human environment and describes the documents relied upon and how these documents may be accessed by the public.

Comment 3:
A number of commenters asserted that the NRC has failed to comply with NEPA because the NRC has not prepared a GEIS to review and update Table S-3 of 10 CFR 51.51(b). Table S-3 lists environmental data to be used by applicants and the NRC staff as the basis for evaluating the environmental effects of the portions of the fuel cycle that occur before new fuel is delivered to the plant and after spent fuel is removed from the plant site for light-water reactors. Table S-3 was incorporated into the NRC's regulations in 1979 and includes an assumption, based on NRC staff's analysis of disposal in a bedded-salt geologic repository, that after a repository is sealed there would be no further release of radioactive materials to the environment (the “zero release assumption”). The 1979 rulemaking also included an expectation that “a suitable bedded-salt repository site or its equivalent will be found” (44 FR 45362 and 45368; August 2, 1979).

The commenters stated that the NRC's proposed revisions to the Waste Confidence Decision acknowledge that salt formations are now only being considered as hosts for reprocessed nuclear materials because heat-generating waste, like SNF, exacerbates a process by which salt can rapidly deform (See 73 FR 59555; October 9, 2008). For this and other reasons, the commenters believe that Table S-3 has been undermined and is out of date and needs to be reviewed in a GEIS. NRDC also believes that the Table S-3 Rule's “finding of no significant health impacts fundamentally supports the Waste Confidence Decision because its estimate of zero radioactive releases from a repository is based on the Commission's then-current Waste Confidence finding, that `a suitable bedded-salt repository site or its equivalent will be found.' ” The commenters also note that the Commission, in 1990, indicated that it would find it necessary to review the Table S-3 Rule if it found, in a future review of the Waste Confidence Decision, that its confidence in the technical feasibility of disposal in a mined geologic repository had been lost (55 FR 38491; September 18, 1990). The commenters believe that the Commission lacks a basis for continued confidence in the technical feasibility of safe geologic disposal and that the relationship of the Table S-3 rule to the Waste Confidence Decision is such that a GEIS to review the Table S-3 Rule is a necessary prerequisite to a revision of the Waste Confidence Findings.

NRC Response:
The Waste Confidence Decision does not rely on findings made in the context of the Table S-3 Rule. Even in 1984, the Commission's confidence that a suitable geologic site for a repository would be found was not premised on the expectation that a bedded-salt site would be located, but rather on the fact that DOE's site exploration efforts were “providing information on site characteristics at a sufficiently large number and variety of sites and geologic media to support the expectation that one or more technically acceptable sites will be identified.” (49 FR 34668; August 31, 1984). Similarly, the issue of concern to the NRC in considering waste confidence has not been whether a zero-release assumption will be met, but rather when Environmental Protection Agency (EPA) would issue standards ensuring that any releases of radioactive materials to the environment would not be inimical to public health and safety (
See
55 FR 38500; September 18, 1990).

In 1990, the Commission discussed the relationship of the Table S-3 rulemaking with the Waste Confidence proceeding (
See
55 FR 38490-38491; September 18, 1990). The Commission noted that the Table S-3 proceeding was the outgrowth of efforts to generically address the NEPA requirement for an evaluation of the environmental impacts of operation of a light water reactor (LWR), that Table S-3 assigned numerical values for environmental costs resulting from uranium fuel cycle activities to support one year of LWR operation, and that the Waste Confidence proceeding was not intended to make quantitative judgments about the environmental costs of waste disposal. The Commission stated that unless, “in a future review of the Waste Confidence decision, [it] finds that it no longer has

confidence in the technical feasibility of disposal in a mined geologic repository, the Commission will not consider it necessary to review the S-3 rule when it reexamines its Waste Confidence Findings in the future” (55 FR 38491; September 18, 1990). The Commission continues to have confidence in the technical feasibility of disposal in a mined geologic repository (
see
NRC Response to Comment 8 and the discussion of Finding 1 later in this document) so there is no need to review the S-3 rule to support its Waste Confidence Findings.
6

This does not preclude the NRC from taking future regulatory action to amend Table S-3 if doing so appears to be necessary or desirable. In 2008, the Commission stated that “[t]he NRC will continue to evaluate, as part of its annual review of potential rulemaking activity, the need to amend Table S-3.”
New England Coalition on Nuclear Pollution; Denial of Petition for Rulemaking
(73 FR 14946, 14949; March 20, 2008).

6
As discussed below, Finding 1 deals with the general technical feasibility of a repository and is not dependent upon a specific site. Further, the Commission makes it clear in its discussion of Finding 2 that the Findings assume that YM will not be used as a geologic repository.

Comment 4:
The Attorney General of California believes that the Waste Confidence Decision violates core principles of NEPA and the NRC's regulations because it does not allow for supplementation of an EIS for an ISFSI even when there is significant change in the circumstances under which a project is carried out or when there is significant new information regarding the environmental impacts of the project.
See
10 CFR 51.92(a). He asserts that “NRC has not shown a clearly articulated justification, based on substantial evidence in the record, for the proposed extension of this presumption that
no
change in circumstance, and
no
new information, can
ever
trigger the NEPA duty to supplement the environmental analysis of the long-term onsite storage of nuclear waste.” The Attorney General also believes that the proposed update to the Waste Confidence Decision allows NPPs “to be substantially re-purposed and transformed into long-term storage facilities * * * without environmental review” and that therefore supplementation of the initial EIS for the NPP may be warranted. Similarly, the Attorney General of New York, in a supplemental comment, argues that the Commission's proposed revision to Finding 2 (originally discussed in the Commissioners' September 2009 votes) endorses a policy of indefinite storage and that the Commission “has not made a generic determination regarding environmental and safety issues presented by indefinite storage of spent fuel at the site of nuclear reactors following shutdown.”

NRC Response:
Under 10 CFR 51.23(b), the NRC does not need to prepare a site-specific EA or EIS during individual NPP licensing that discusses the environmental impacts of spent fuel storage for the period following the term of the reactor license or initial ISFSI license because of the generic determination the Commission has made in 10 CFR 51.23(a) that spent fuel can be stored safely and without significant environmental impacts for at least 60 years beyond the licensed life of the reactor. The generic determination is based on the environmental analysis conducted in the Waste Confidence Decision. However, the commenter is not correct that this means that an EA or EIS for a reactor or an ISFSI may never need to be supplemented even if there is a significant change in circumstances or significant new information that demonstrates that the application of the generic determination would not serve the purposes for which it was adopted. Under 10 CFR 51.20(a)(2), the Commission, in its discretion, may determine that a proposed action involves a matter that should be covered by an EIS. Further, 10 CFR 2.335(b) provides that a party to an adjudicatory proceeding may petition for the waiver of the application of the rule or for an exception for that particular proceeding. The sole grounds for a petition for waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding exist so that the application of the rule would not serve the purposes for which it was adopted.

More fundamentally, as the Commission clarified in its SRM authorizing publication of this decision and final rule in the
Federal Register
, the changes to the Waste Confidence Decision and Rule are not intended to support indefinite storage. If the time frame for safe and environmentally sound storage included in Finding 4 approaches without the availability of sufficient repository capacity, the Commission will revisit the Waste Confidence Decision and Rule.

Comment 5:
Riverkeeper asserts that the NRC made its finding of no significant impact in its initial 1984 decision “without performing an environmental review pursuant to NEPA, explicitly stating that an [EIS] was not necessary,” and then has continued to make this finding without appropriate environmental review.

NRC Response:
Riverkeeper is correct that the NRC concluded in 1984 that Finding 4—that SNF could be safely stored without significant environmental impacts for at least 30 years beyond the expiration of the reactor's operating license—did not require the support of an EIS (
See
49 FR 34666; August 31, 1984). This does not mean that this finding was made without performing the required environmental review under NEPA. The Commission explained that the Waste Confidence Decision itself considered the environmental aspects of spent fuel storage and did comply with NEPA.
Id.
No EIS was conducted because the fourth finding concluded that the environmental impacts from extended storage of SNF are so insignificant as not to require consideration in an EIS. The NRC has explained in its response to Comment 1 why an EIS is unnecessary to support the expansion of its generic determination.

Issue 2: Compliance of the Waste Confidence Decision With the Atomic Energy Act (AEA)

Comment 6:
Several commenters asserted that the updates to the Waste Confidence Decision and Rule do not comply with the AEA. They stated that that the AEA precludes NRC from licensing any new NPP or renewing the license of any existing NPP if it would be “inimical * * * to the health and safety of the public.” 42 U.S.C. 2133(d) (2006). They note that the Commission continues to state that it would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely. These commenters assert that Finding 1 effectively constitutes a licensing determination that spent fuel disposal risks are not inimical to public health and safety, and that Findings 3, 4, and 5 effectively constitute a licensing determination that spent fuel storage risks are not inimical to public health and safety. Because the commenters believe that the NRC has presented no well-documented safety findings supporting its findings, they contend that the NRC's revisions of its findings are in violation of the AEA.

NRC Response:
As explained in the response to Comment 1, the NRC's update to the Waste Confidence Decision and Rule are not licensing decisions. They are not determinations made as part of the licensing proceedings for NPPs or ISFSIs or the renewal of those licenses. They do not authorize the storage of SNF in spent fuel pools or ISFSIs. The revised findings and generic determination are conclusions of the Commission's

environmental analyses, under NEPA, of the foreseeable environmental impacts stemming from the storage of SNF after the end of reactor operation.

As long ago as 1978, the U.S. Court of Appeals for the Second Circuit considered the question “whether NRC, prior to granting nuclear power reactor operating licenses, is required by the public health and safety requirement of the AEA to make a determination * * * that high-level radioactive wastes can be permanently disposed of safely.”
Natural Resources Defense Council
v.
NRC,
582 F. 2d 166, 170 (1978) (emphasis in original). The court found that the NRC was not required to make a finding under the AEA that SNF could be disposed of safely at the time a reactor license was issued, but that it was appropriate for the Commission to make this finding in considering a license application for a geologic repository. Similarly, the U.S. Court of Appeals for the District of Columbia Circuit did not vacate amendments to NPP operating licenses permitting the reracking of spent fuel storage pools because it was concerned about the availability of storage or disposal facilities at the end of licensed operation.
State of Minnesota
v.
NRC,
602 F. 2d 412 (DC Cir. 1979). Rather, that court was concerned that the Commission's confidence in these matters had not been subjected to public scrutiny, so it directed the Commission to conduct a rulemaking proceeding to assess its degree of confidence on these issues, leading to the original Waste Confidence proceeding.

The Commission will make the safety finding with respect to SNF disposal envisioned by the commenters in the context of a licensing proceeding for a geologic repository. The Commission does make the safety findings with respect to storage of SNF envisioned by the commenters in the context of licensing proceedings for NPPs and ISFSIs for the terms of those licenses.

Issue 3: What is the meaning of “reasonable assurance” in the waste confidence Findings?

Comment 7:
One commenter expressed the view that the NRC should continue to take a position of suspending the licensing of reactors if it does not have confidence beyond a reasonable doubt that wastes can and will be disposed of safely. Another commenter criticized the NRC for “fail[ing] to define the standard for reasonable assurance—what level of assurance that they found in making their determination—90%, 51%, 5%.”

NRC Response:
The “reasonable assurance” standard is not equivalent to the “beyond a reasonable doubt” standard used in the criminal law.
North Anna Environmental Coalition
v.
NRC,
533 F.2d 655, 667 (DC Cir. 1976) (
North Anna
).
7

It is more akin to a “clear preponderance of the evidence” standard, and what constitutes “reasonable assurance” depends on the particular circumstances of the issue being examined. In a 2009 decision affirming the license renewal of the Oyster Creek NPP, the Commission explained: “Reasonable assurance is not quantified as equivalent to a 95% (or any other percent) confidence level, but is based on sound technical judgment of the particulars of a case and on compliance with our regulations * * * .”
In re Amergen Energy Co.
(License Renewal for Oyster Creek Nuclear Generating Station),
CLI-09-07, 69 NRC 235
(
April 1, 2009
).

7
In
North Anna,
the court considered whether the Commission's “reasonable assurance” standard required an applicant for a NPP license to prove beyond a reasonable doubt that an earthquake fault under the proposed site was not capable. The court found that neither the AEA nor the pertinent regulations required the Commission to find, under its reasonable assurance standard, that the site was totally risk-free.
See also Power Reactor Development Co.
v.
International Union of Electrical, Radio and Machine Workers,
367 U.S. 396, 414 (1961), where the Supreme Court rejected a claim that the Commission's finding of reasonable assurance needed to be based on “compelling reasons” when a construction permit for a reactor sited near a large population center was being considered.

Thus, the Commission's reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely without significant environmental impacts for at least 60 years beyond the licensed life for operation of that reactor is based on a clear preponderance of the technical and scientific evidence described in the discussion of Finding 4. The Commission's reasonable assurance in Finding 2, that sufficient repository capacity will be available when necessary, is somewhat different; it does not include a specific date for when a repository will be available and is supported by an analysis that considers how long it may take to successfully complete the process to select a site, license, and build a repository. This analysis is not purely scientific, and thus the evidence has more qualitative content than evidence considered for strictly scientific or technical issues.

Issue 4: Whether the Commission Has an Adequate Basis for Reaffirming Finding 1

Comment 8:
TSEP believes that the Commission lacks a sound basis for reaffirming Finding 1: that there is reasonable assurance that safe disposal of HLW and SNF in a mined geologic repository is technically feasible. In support of its view, TSEP provides the comments of the Institute for Energy and Environmental Research (IEER) by Dr. Arjun Makhijani. IEER stated that “the Waste Confidence Decision presents a safety finding, under the Atomic Energy Act, that the NRC has reasonable assurance that disposal of spent fuel will not pose an undue risk to public health and safety. It does so via the finding that disposal is technically feasible and can be done in conformity with the assumption of zero releases in Table S-3 * * *.” IEER believes that the NRC has failed to address available information, which shows that the NRC currently does not have an adequate technical basis for a reasonable level of confidence that spent fuel can be isolated in a geologic repository.

IEER defines “safe disposal” as involving “(i) the safety of building the repository, putting the waste in it, and backfilling and sealing it, and (ii) the performance relative to health and environmental protection standards for a long period after the repository is sealed * * *. [I]t is essential to show a reasonable basis for confidence that the public and the environment far into the future will be adequately protected from the effects of disposal at a specific site and a specific engineered system built there.” Further, IEER believes that “reasonable assurance” requires “a statistically valid argument based on real-world data that would show (i) that all the elements for a repository exist and (ii) that they would work together as designed, as estimated by validated models. The evidence must be sufficient to provide a reasonable basis to conclude that the durability of the isolation arrangements would be sufficient to meet health and environmental standards for long periods of time * * * with a high probability.” IEER believes that the NRC does not have the requisite reasonable assurance because the NRC “has not taken into account a mountain of data and analysis” derived from the YM repository program and from the French program at the Bure site, which illustrate the problems these programs have encountered and thus show, in IEER's view, “that it is far from assured that safe disposal of spent fuel in a geologic repository is technically feasible.” IEER also cites to the historical difficulty the EPA has had in formulating radiation protection standards and notes that “[w]ithout a final standard that is clear of court challenges, performance assessment

must necessarily rest on guesses about what it might be; this is not a basis on which `reasonable assurance' of the technical feasibility of `safe disposal' can be given, for the simple reason that there is no accepted definition of safe in relation to Yucca Mountain as yet.”

NRC Response:
IEER confuses the safety finding that the NRC must make under the AEA when considering an application for a license to construct and operate a repository at an actual site with the Waste Confidence Findings made under NEPA, including the finding that there is reasonable assurance that safe disposal of HLW and SNF is technically feasible. See response to Comment 6. The NRC currently has before it DOE's application for a construction authorization at the YM site and, if the proceeding moves forward, will consider information submitted with admitted contentions that may call into question DOE's ability to safely dispose of HLW and SNF at that site. However, it is very important that the Commission preserve its adjudicatory impartiality and not consider
ex parte
communications of the type proffered by IEER outside of the YM licensing proceeding, and it has been careful not to do so in the context of reviewing its Waste Confidence Decision.
See
10 CFR 2.347.

Webster's Third New International Dictionary
(1993) defines “feasible” as “capable of being done, executed, or effected: possible of realization.” The Commission began its discussion of Finding 1 in its original 1984 decision by stating that “[t]he Commission finds that safe disposal of [HLW and SNF] is technically
possible
and that it is achievable using
existing
technology” (49 FR 34667; August 31, 1984) (emphasis added). The Commission then went on to say: “Although a repository has not yet been constructed and its safety and environmental acceptability demonstrated, no fundamental breakthrough in science or technology is needed to implement a successful waste disposal program.”
Id.
This focus on whether a fundamental breakthrough in science or technology is needed has guided the Commission's consideration of the feasibility of the disposal of HLW and SNF.

The Commission identified three key technical problems that would need to be solved: the selection of a suitable geologic setting, the development of waste packages that can contain the waste until the fission product hazard is greatly reduced, and engineered barriers that can effectively retard migration of radionuclides out of the repository.
Id.
In 1984, the Commission reviewed evidence indicating that there are geologic media in the United States in many locations potentially suitable for a waste repository; that the chemical and physical properties of HLW and SNF can be sufficiently understood to permit the design of a suitable waste package; and that DOE's development work on backfill materials and sealants provided a reasonable basis to expect that backfill materials and long-term seals can be developed. In 1990, the Commission noted that the NRC staff had not identified any fundamental technical flaw or disqualifying factor for any of the nine sites DOE had identified as potentially acceptable for a repository, even though the HLW program was then focused exclusively on the YM site (55 FR 38486; September 18, 1990). Similarly, the Commission found no reason to abandon its confidence in the technical feasibility of developing a suitable waste package and engineered barriers, even though DOE's scientific programs were focused on Yucca Mountain (
See
55 FR 38488-38490; September 18, 1990). Both the EPA and the NRC have standards in place that would have to be met by either the proposed repository at YM or a repository at any other site.
See
40 CFR parts 190 and 197 and 10 CFR parts 60 and 63.

IEER does not assert that the need for a scientific or technical breakthrough stands in the way of establishing any possible repository; IEER believes that the evidence it has offered shows that a repository at YM will not be capable of meeting the EPA's standards and the NRC's performance objectives. This could turn out to be the case, but this does not mean that safe disposal of HLW and SNF in some repository is not possible.

Issue 5: Whether the Commission Has an Adequate Basis To Revise Finding 2

Comment 9:
Many commenters responded to the Commission's request for comments on whether the Commission should revise Finding 2 to predict that repository capacity will be available within 50-60 years beyond the licensed life for operation of all reactors or whether the Commission should adopt a more general finding of reasonable assurance that SNF generated in any reactor can be stored safely and without significant environmental impacts until a disposal facility can reasonably be expected to be available.

Specific Question for Public Comment:
In its proposed rule and its proposed revisions to the Waste Confidence Decision, the Commission explicitly requested public comment on an alternative approach to Finding 2 (73 FR 59550 and 73 FR 59561; March 20, 2008). The Commission recognized that its proposed revision of Finding 2, to include a time frame for availability of repository capacity within 50-60 years beyond the licensed life for operation of all reactors, is based on its assessment not only of its understanding of the technical issues involved, but also predictions of the time needed to bring about the necessary societal and political acceptance for a repository site.

Recognizing the inherent difficulties in making this prediction, the Commission outlined an alternative approach wherein it would adopt a more general finding of reasonable assurance that SNF generated in any reactor can be stored safely and without significant environmental impacts until a disposal facility can reasonably be expected to be available. This finding would be made on the basis of the Commission's accumulated experience of the safety of long-term spent fuel storage with no significant environmental impact (
see
Finding 4) and its accumulated experience of the safe management and storage of spent fuel during and after the expiration of the reactor operating license (
see
Finding 3). The Commission also asked whether additional information is needed for this approach or whether accompanying changes should be made to its other findings on the long-term storage of spent fuel if this approach is adopted.

The State of Nevada (NV), Clark and Eureka Counties in NV, and the Nuclear Energy Institute (NEI) provided comments supporting the alternative approach to Finding 2. NV supports the approach because it believes that specifying a time frame involves too much speculation about public acceptance, future technology, a possible redirection of the waste disposal program, adequate funding, and the outcome of the NRC licensing proceedings. NV believes that “whatever the NRC's period of safe storage might be, it is long enough for the Commission to generally conclude that, even if Yucca Mountain fails, one or more other repository sites (or some other form of disposition) would be available before dry storage of reactor spent fuel * * * could pose any significant safety or environmental problem.” Further, NV suggested that if the Commission followed this approach, it could dispense with Finding 2 altogether since Finding 3 provides reasonable assurance that HLW and SNF will be managed in a safe manner until sufficient repository capacity is available. Clark and Eureka Counties believe that focusing waste

confidence on management of SNF allows for consideration of a more systemic approach to waste management that considers an array of options and takes into account evolving energy policy at the national and international level, technology enhancements, and scientific research that could lead to new approaches and alternatives. NEI stated that “identifying the exact number of years involved is not necessary because, for whatever length of time is needed, the NRC's regulations will continue to provide a high standard of safety in the storage of spent nuclear fuel, and industry is compelled to comply with these regulations.”

Many comments from States, State organizations, one NV county, environmental groups and individuals opposed the alternative approach and want the Commission to retain a time frame. These commenters believe that a time frame is necessary to provide an incentive to the Federal Government to meet its responsibilities for the disposal of HLW. One commenter favored only a slight extension of the repository availability date to 2035 in the belief that a further extension or removal of a time frame would remove virtually all societal incentives for the United States to develop a geologic repository. Some commenters feared that removal of a time frame, which would remove any pressure on the Federal Government to resolve the SNF disposal issue, would lead to added costs to taxpayers due to the accumulating damages incurred by DOE because of its failure to honor its contracts for accepting SNF. Nye County, NV believes that removal of the time frame implies that there is no urgency in implementing the NWPA. Nye County believes that waste confidence would better be achieved if Finding 2 included a reaffirmation of the need for a repository for ultimate waste confidence and for its role in the nation's commitment to support the environmental cleanup of weapons program sites because a repository will be needed even if other options for spent fuel management, such as recycling, are adopted.

Some commenters believe that removal of a time frame does not acknowledge the intergenerational ethical concerns of this generation reaping the benefits of nuclear energy, and passing off the nuclear waste products to future generations without providing them with any ultimate disposal solution. Nye County believes that intergenerational equity is still the primary international basis for the policy of geologic disposal. The Western Interstate Energy Board, in urging retention of a time frame, states that the NRC should be concerned about the possibility of indefinite storage of SNF because it undermines support for a plan for disposal of nuclear waste, noting that approval of a new generation of NPPs should be contingent on a credible plan by which the Federal Government meets its responsibilities.

The Attorneys General of New York, Vermont, and Massachusetts believe that “NRC has admitted that its original thirty-year time estimation was based on no scientific or technical facts, but instead on the period of time in which it expected a repository to be available. * * * The NRC's reasoning—that because no problems significant in NRC's eyes have [yet] occurred * * *, no problems will occur no matter how long spent fuel remains on reactor sites—is antithetical to science, the laws of time, and common sense. For example, over an indefinite period of storage, the probability of a severe earthquake increases.” They believe that the NRC's alternative approach is arbitrary because there is no basis for unconditional confidence in the indefinite onsite or offsite storage of waste. Further, the Attorney General of New York argues (in supplemental comments) that the Commission's September 2009 votes on the draft final rule, which would remove a target date from Finding 2 (and which the Commission decided to do in September 2010), support the idea that fuel will have to be stored indefinitely.
8

Similarly, another commenter asserted that it is questionable whether the storage of SNF at current sites for 150 years or more “is safe and feasible merely on the basis of the much more limited experience involving SNF storage to date, particularly at ISFSIs, and at fewer locations with lower quantities of SNF, compared to what would exist over such a long time span.”

8
The Commission's September 2009 votes, along with the September 2010 votes, are available at
http://www.nrc.gov/reading-rm/doc-collections/commission/cvr/2009/2009-0090vtr.pdf.

In addition, the Attorneys General believe that in proposing to revise the generic determination in 10 CFR 51.23(a) without reference to any time frame, the NRC has prematurely and inappropriately adopted the alternative approach without waiting for public comments. Similarly, the Prairie Island Indian Community believes that, in the absence of a time frame, “the Waste Confidence Rule would be premised on the pure speculation that a disposal facility will be available at some unknown point in the future.” NRDC believes that the NRC's alternative approach “is contrary to the NRC's long-standing policy of [having] at least some minimal time limitation on the actions of its licensees with respect to active institutional controls at nuclear facilities,”
e.g.,
10 CFR 61.59(b), which prohibits reliance on institutional controls for more than 100 years by the land owner or custodial agency of a low-level waste disposal site.

NRC Response:
In 1990, the Commission explained that it had not identified a date by which health and safety reasons require that a repository must be available (55 FR 38504; September 18, 1990). The Commission noted that in 1984 it had found under Finding 3 that SNF would be safely managed until sufficient repository capacity is available, but that safe management would not need to continue for more than 30 years beyond the expiration of any reactor's operating license because sufficient repository capacity was expected to become available within those 30 years. The Commission also reached the conclusion under Finding 4 that SNF could be safely stored for at least 30 years beyond the expiration of the operating license.
Id.

In 1990, the Commission considered a license renewal term of 30 years in its analysis supporting Findings 2 and 4
9

and explained its reasons for believing that “there is ample technical basis for confidence that spent fuel can be stored safely and without significant environmental impact at these reactors for at least 100 years” (55 FR 38506; September 18, 1990). Thus, it is not correct to say that “NRC has admitted that its original thirty-year time estimation was based on no scientific or technical facts.” Rather, the NRC's estimate was based on both when it expected a repository to be available and all the scientific and technical facts it discussed under Findings 3 and 4 that support a conclusion that SNF can be safely managed and stored for at least that period of time. In fact, the Commission considered a comment urging it to find that SNF can be stored safely in dry storage casks for 100 years (55 FR 38482; September 18, 1990). The Commission did not “dispute a conclusion that dry spent fuel storage is safe and environmentally acceptable for a period of 100 years,” but rejected this suggestion because it found that safe storage without significant environmental impact could take place for “at least” 30 years beyond the licensed life for operation of the reactor, and because it supported “timely

disposal of [SNF and HLW] in a geologic repository, and by this Decision does not intend to support storage of spent fuel for an indefinitely long period.”
Id.

9
The license renewal period for operating reactors in 10 CFR part 54 is 20 years.

The fact that the Commission, in 1990 and now, has confidence that SNF can be safely stored for long periods of time does not mean, however, that the Commission has examined scientific and technological evidence supporting
indefinite
storage. The commenters supporting alternative Finding 2 did not provide evidence supporting indefinite storage, nor has the Commission adopted findings that support indefinite storage. The State of Nevada, in its 2005 petition for rulemaking, requested,
inter alia,
that the NRC define “availability” by presuming that some acceptable disposal site would be available at some undefined time in the future. In denying the petition, the Commission said “[w]e find this approach inconsistent with that taken in the 1984 [WCD] because it provides neither the basis for assessing the degree of assurance that radioactive waste can be disposed of safely nor the basis for determining when such disposal will be available” (70 FR 48333; August 17, 2005).

As explained in response to Comment 1, the Commission's action in this update of the 1990 Waste Confidence Decision is to expand its generic determination in 10 CFR 51.23(a) by 30 years, an action that results in no significant environmental impacts and therefore does not require an EIS. The Commission's approach in Findings 2 and 4 acknowledges the need for permanent disposal, and for the generations that benefit from nuclear energy to bear the responsibility for providing an ultimate disposal for the resulting waste. The Commission's removal of a target date from Finding 2 does not mean that the Commission has approved indefinite storage; Finding 4 still contains a time frame for the length of post-licensed life storage. But a time frame in Finding 4 does not mean that the Commission has to include a target date in Finding 2; instead, the Commission has adopted a revised Finding 2 that expresses the Commission's reasonable assurance that repository capacity will be available when necessary. This Finding does not contemplate indefinite storage of SNF and HLW; Finding 4 has not been changed, and only considers “at least 60 years” of storage beyond the licensed life for operation, including a license renewal period, and the analysis supporting Finding 2 considers the time needed to construct a repository.

The Commission has removed the target date from Finding 2 because recent events have demonstrated that the Commission is unable to predict with confidence when a successful program to construct a repository will start. Instead, the Commission has reasonable assurance that sufficient repository capacity will be available when necessary, which means that repository capacity will be available before there are safety or environmental issues associated with the SNF and HLW that would require the material to be removed from storage and placed in a disposal facility. As made clear in the analysis that supports Finding 2, the Commission continues to have confidence that a repository can be constructed within 25-35 years of a Federal decision to do so, which is much shorter than the time frame considered in revised Finding 4. Further, if it becomes clear that a repository or some other disposal solution will not be available by the end of 60 years after licensed life for operation, the Commission will revisit and reassess its Waste Confidence Decision and Rule if a revision has not already occurred for other reasons.

As the Attorneys General, as well as other commenters, noted, the proposed rule was phrased differently from the proposed revision of Finding 2; the proposed rule made a generic determination of safe storage of SNF “until a disposal facility can reasonably be expected to be available” whereas proposed Finding 2 predicted repository availability “within 50-60 years beyond the licensed life for operation,” and proposed Finding 4 made a finding of reasonable assurance of safe storage of SNF “for at least 60 years beyond the licensed life for operation.”

The Commission did not intend to cause confusion by adopting different language in the Findings and the rule. The basis for the rule is identical to the basis for the findings, no matter how the rule itself is phrased; the Commission has therefore decided to adopt similar language for Findings 2 and 4 and the rule. As discussed above, the Commission has reconsidered Finding 2 and, in recognition of recent developments, has concluded that it would be inappropriate to include a target date in the Finding. The Commission has therefore made a conforming change to the rule to incorporate the revised language from Finding 2.

Further, as discussed in the proposed rule, the Commission has updated the rule language to include the time frame for safe and environmentally sound storage from Finding 4. The final rule now limits the generic determination regarding safe and environmentally sound storage to “at least 60 years beyond the licensed life for operation (which may include the term of a revised or renewed license).” Section 51.23(a) is also revised to reinsert a version of the second sentence in the present rule that was excluded from the proposed rule. This statement was added to make it clear that Finding 4 does not contemplate indefinite storage and to underscore the fact that the Commission has confidence that mined geologic repository capacity will be available when necessary.

Comment 10:
TSEP claims that the survey of various international HLW disposal programs that the NRC provided to review the issue of social and political acceptability of a repository shows that there can be no confidence that the necessary social and political conditions exist in the United States to provide any assurance that a repository can be developed in any foreseeable time frame. TSEP also believes that the NRC's survey is inaccurate and essentially incomplete because it omits the country that is often held up as being exemplary for nuclear power—France.

NRC Response:
The NRC rejects the commenter's assertion that the NRC's examination of international experience shows that there can be no confidence that a repository will be developed in the United States in any foreseeable time frame. The NRC's discussion of the HLW programs of other countries was included to show that those countries have programmed into their plans various methodologies for securing social and political acceptance of a repository. This has been a trial-and-error process that has led to both failures and successes. The processes, especially in Finland and Sweden, show that this focus on deliberate attempts to gain public support can lead to success given a sufficiently inclusive process and enough time.

The commenter believes that the NRC's survey is partly inaccurate because the NRC incorrectly implies that the United Kingdom (UK) ended a program for developing a repository for HLW and SNF in 1997 when, in fact, the program was for disposal of intermediate-level waste (ILW). The NRC agrees with the commenter that one sentence describing the UK program is misleading. This is because of a typographical error where “HLW” was inserted instead of “ILW”. This error is corrected in this update.

With respect to the omission of France, the NRC did not seek to provide an exhaustive survey or complete history of all foreign repository programs. The NRC examined a number of international examples for the

purpose of reasonably estimating the minimum time needed to “develop * * * societal and political acceptance in concert with essential technical, safety and security assurances.” The NRC noted that France was among ten nations that have established target dates (France expects that its repository will commence operation in 2025.), and among seven nations, of those ten, that plan disposal of reprocessed SNF and HLW (73 FR 59558; October 9, 2008). A brief examination of the progress of France's waste disposal program suggests a time frame that is consistent with a range of 25-35 years for achieving societal and political acceptability of a repository. Initial efforts in France in the 1980s failed to identify potential repository sites using solely technical criteria. Failure of these attempts led to the passage of nuclear waste legislation that prescribed a period of 15 years of research. Reports on generic disposal options in clay and granite media were prepared and reviewed by the safety authorities in 2005. In 2006, conclusions from the public debate on disposal options, held in 2005, were published. Later that year, the French Parliament passed new legislation designating a single site for deep geologic disposal of intermediate and HLW. This facility, to be located in the Bure region of northeastern France, is scheduled to open in 2025, some 34 years after passage of the original Nuclear Waste Law of 1991.

Comment 11:
Several commenters believe that the history of the U.S. repository program demonstrates that there should be no assurance that the political and social acceptance needed to support development of a repository in the time frame envisioned in Finding 2 will be realized.

NRC Response:
The Commission acknowledges the difficulties that the U.S. HLW program has encountered over the years from the failed attempt to locate a repository in a salt mine in Lyons, Kansas, through the strong and continuous opposition to the proposed repository at YM. Nevertheless, the commenters overlook a number of key developments that support the Commission's confidence that a repository will be available when necessary.

First, the comments assume that any repository program must start over from the beginning. But any new repository program would build upon the lessons learned from the YM and other repository programs. Other countries are working toward development of a repository, and some have settled upon a process that is designed to deal with many of the societal and political issues that have delayed the U.S. program.
See
Finding 2 below.

Second, the Secretary of Energy established the Blue Ribbon Commission on America's Nuclear Future. Department of Energy, Blue Ribbon Commission on America's Nuclear Future, Advisory Committee Charter (2010), available at
http://brc.gov/pdfFiles/BRC_Charter.pdf.
The Blue Ribbon Commission “will provide advice, evaluate alternatives, and make recommendations for a new plan to address” a number of issues associated with the back-end of the nuclear fuel cycle.
Id.
Specifically, the Blue Ribbon Commission will evaluate the existing fuel cycle technologies and research and development cycles; look at options for the safe storage of SNF while final disposal pathways are prepared; look at options for the permanent disposal of SNF and HLW; evaluate options to make legal and commercial arrangements for the management of SNF and HLW; prepare flexible, adaptive, and responsive options for decision-making processes related to the disposal and management of SNF and HLW; look at options to ensure that any decisions are open and transparent, with broad participation; evaluate the possible need for additional legislation or amendments to existing laws; and any additional issues that the Secretary of Energy deems appropriate.
Id.

The NWPA still mandates by law a national repository program, and decades of scientific studies support the use of a repository for disposal of HLW and SNF. Federal responsibility for siting and building a repository remains controlling national policy. Finding 2 is a prediction that a repository will be available when the societal and political obstacles to a repository are overcome and sufficient resources are dedicated to the siting, licensing, and construction of a repository. It necessarily follows from the Waste Confidence Decision that the Commission has reasonable assurance that sufficient repository capacity will be available before there are safety or environmental issues associated with the SNF and HLW that would require the material to be removed from storage and placed in a disposal facility. If this were not the case, the Commission would be unable to express its reasonable assurance in the continued safe, secure, and environmentally sound storage of SNF and HLW.

Finally, the Commission reiterates Finding 1, which states that the Commission finds reasonable assurance that safe disposal of HLW and SNF in a mined geologic repository is technically feasible. This finding has remained unchanged since 1984. The more difficult problem challenging a repository program is achieving political and social acceptance, but the Commission has confidence that this problem can be solved. By applying the lessons learned in the YM program and in the different methodologies for achieving acceptance used in international HLW programs, the Commission remains confident that these issues impeding the construction of a repository can be resolved.

Comment 12:
One commenter worried that “a decision in favor of this proposed rule change could prejudice a licensing decision in favor of the Yucca Mountain project simply because it would announce confidence in a waste site and that is the only one there.” The commenter also fears that this rulemaking could bias a decision to lift or eliminate the statutory capacity limit on YM, which would be necessary for the repository to accept SNF from new reactors. Further, the commenter believes that if the YM project fails, there will be no basis for confidence that a waste site will be available in the future.

NRC Response:
The Commission's reaffirmation of Finding 1—that disposal of HLW and SNF is technically feasible—and its revision of Finding 2, which states confidence that repository capacity will be available when necessary, are not tied to any particular site. In fact, the Commission's proposal assumed that YM would not go forward and become available as a repository. Moreover, the Waste Confidence Decision and Rule have no legal effect in the YM licensing proceeding.
See Nevada
v.
NRC,
No. 05-1350, 199 Fed. Appx. 1 (DC Cir. 2006). Therefore, the NRC does not believe that adopting these findings will prejudice a licensing decision on Yucca Mountain. In a 2008 report DOE predicted that by 2010 SNF would exceed the 70,000 metric tons of heavy metal (MTHM) statutory limit for YM, and that if all existing reactors continue to operate for a total of 60 years through license renewals, SNF will exceed 130,000 MTHM.
See The Report to the President and the Congress by the Secretary of Energy on the Need for a Second Repository,
DOE/RW-0595, December, 2008. Thus, even if YM were to obtain NRC approval and be built, the amount of SNF from current reactors alone would require a change in the statutory limit or a second repository. Finally, as stated above, the proposed revision of Finding 2 assumed that YM would not go forward. The NRC's basis for continued confidence that a repository will be available when necessary is explained in its response to

Comment 11 and its discussion of Finding 2.

Comment 13:
The State of Nevada favored the Commission's alternative approach to Finding 2, but also suggested that 10 CFR 51.23(a) be reworded as follows:

The Commission has made a generic determination that there is reasonable assurance all licensed reactor spent fuel will be removed from storage sites to some acceptable disposal site well before storage causes any significant safety or environmental impacts. This generic finding does not apply to a reactor or storage site if the Commission has found, in the 10 CFR Part 50, Part 52, Part 54 or Part 72 specific licensing proceeding, that storage of spent fuel during the term requested in the license application will cause significant safety or environmental impacts.

Nevada explains that the last sentence is added to be consistent with 10 CFR 51.23(c), which provides that 10 CFR 51.23(a) does not alter any requirement to consider environmental impacts during the requested license terms in specific reactor or spent fuel storage license cases. Nevada states that “NRC should not prejudge this review of potential safety or environmental impacts from storage during the requested license term in any pending or future licensing proceeding.” Nevada also states that in the event the Commission adopts Finding 2 as proposed, “it needs to clear up the ambiguity inherent in the reference to the 50-60 year time period. Presumably the Commission means it expects a repository within 60 years.”

NRC Response:
For the reasons explained in response to Comment 9, the Commission has decided to adopt a revised Finding 2 that states its confidence in the availability of a repository “when necessary.” 10 CFR 51.23(c) points out that the generic determination in 10 CFR 51.23(a) only applies to the period following the term of the reactor operating license, reactor combined license or amendment, or initial ISFSI license or amendment in proceedings held under 10 CFR Parts 50, 52, 54 and 72. Nevada is concerned that in a case where the environmental impacts during the term of the license were judged to be significant, there would be reason to doubt the applicability of a generic determination that the impacts occurring after the requested license term would not be significant and so has proposed inclusion of a second sentence in 10 CFR 51.23(a). The Commission already has a rule, 10 CFR 2.335, that allows a party to an adjudicatory proceeding to seek a waiver or exception to a rule where its application would not serve the purposes for which the rule was adopted. Thus, the Commission declines to adopt this additional sentence.

Issue 6: Whether the Commission Has an Adequate Basis To Reaffirm Finding 3

Comment 14:
One commenter stated that the NRC appears to ignore the reality that available legal and corporate strategies exist that can provide for the transfer of NPPs and ISFSIs, and the SNF itself, to unfunded separate limited liability companies that can easily abandon SNF at existing sites once the economic value of the generating plants is exhausted.

NRC Response:
The transfer of a license for a NPP is governed by 10 CFR 50.80. An applicant for transfer of its license must provide the same information on financial and technical qualifications for the proposed transferee as is required for the initial license. Therefore, the entity intended to receive the license must demonstrate its ability to meet the financial obligations of the license. Both general and specifically licensed ISFSIs are required to demonstrate financial qualifications before they are issued a license. The requirements for general licensees are in 10 CFR part 50, while the financial qualifications for specifically licensed ISFSIs are in 10 CFR part 72.

A general license is issued to store spent fuel at an ISFSI “[a]t power reactor sites to persons authorized to possess or operate nuclear power reactors under 10 CFR part 50 or 10 CFR part 52.” 10 CFR 72.210. Under 10 CFR 50.54(bb), NPP licensees must have a program to manage and provide funding for the management of spent fuel following permanent cessation of operations until title to and possession of the fuel is transferred to the Secretary of Energy. As required in 10 CFR 72.30(c), all general licensees must provide financial assurance for sufficient funds to decommission the ISFSI. In addition, general licensees who have decommissioned their site, with the exception of the ISFSI and support facilities, must demonstrate that they have sufficient funds to decommission the ISFSI after the spent fuel is permanently transported offsite.

Applicants for a specific license to store spent fuel under 10 CFR part 72 are required to demonstrate their financial qualifications.
See
10 CFR 72.22(e). To meet the financial requirements, the applicant must show that it either possesses the necessary funds or has reasonable assurance of obtaining the necessary funds to cover ISFSI construction, operating, and decommissioning costs. In addition, a specific licensee that wants to transfer its license must submit an application that demonstrates that the proposed transferee meets the same financial qualifications as the initial license.
See
10 CFR 72.50. Most specific licensees are financially backed by a utility with either an operating or shutdown NPP and are required under 10 CFR 50.54(bb) to have sufficient resources for spent fuel management after cessation of operations. Other specific licensees, not located at a NPP site, that are currently storing spent fuel are backed either by a large corporation, such as General Electric (the GE Morris ISFSI), or by the DOE, in the case of the Three Mile Island Unit 2, and Ft. Saint Vrain ISFSIs.

Issue 7: Whether the Commission Has an Adequate Basis for Finding That SNF Generated in Any Reactor Can Be Stored Safely and Securely and Without Significant Environmental Impact for at Least 60 Years (Finding 4)

Comment 15:
Several commenters posited that the NRC does not have an adequate technical basis for finding reasonable assurance that SNF can be stored safely and without significant environmental impact because they believe that high-density spent fuel storage pools (SFPs) are vulnerable to catastrophic fires that may be caused by accidents or intentional attacks. These commenters do not believe that the NRC has properly assessed this risk. TSEP submitted a report, “Environmental Impacts of Storing Spent Nuclear Fuel and High-Level Waste from Commercial Nuclear Reactors: A Critique of NRC's Waste Confidence Decision and Environmental Impact Determination,” prepared by Dr. Gordon R. Thompson, the Executive Director of the Institute for Resource and Security Studies (Thompson Report), which describes the potential risks associated with a fire in a SFP following a loss of water from the pool. The Thompson Report takes the view that the NRC documents published on the risk of SFP fires are inadequate and objects to the fact that some of the more recent documents rely on “secret studies,” which cannot be verified by the public. The Attorney General of California requests that the NRC reconsider the information on the risks of SFP fires that California and Massachusetts submitted with their rulemaking petitions, which the NRC denied.
See The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking
(73 FR 46204; August 8, 2008) (MA and CA Petitions).

Dr. Thompson also questioned the analyses and assumptions that support the staff's conclusions regarding terrorist attacks on ISFSIs. Dr. Thompson defined four types of potential attack scenarios and noted that the staff's previous analyses, specifically the Diablo Canyon EA, focus only on Type III scenarios and ignore the far less dramatic, but far more effective, Type IV releases. Thompson Report at 47-48. Type I releases are those caused by the vaporization of the ISFSI by a nuclear explosion and are not considered by Dr. Thompson in his analysis. Thompson Report at Table 7-8. Type II releases deal with an attack by aerial bombing, artillery, rockets, etc., resulting in rupture of the ISFSI and large dispersal of the contents of the cask.
Id.
Type III events are similar to Type II, but involve small dispersal of the contents of the cask, and are caused by vehicle bombs, impact by commercial aircraft, or perforation by a shaped charge.
Id.
Finally, Type IV events are caused by missiles with tandem warheads, close-up use of shaped charges and incendiary devices, or removal of the overpack lid.
Id.
This type of attack results in scattering and plume formation similar to that of a Type III event, but the release of material far exceeds that of a Type III event.
Id.
Dr. Thompson claims that the staff's analysis does not consider the environmental impacts of a Type IV attack on an ISFSI.
Id.
at 48.

NRC Response:
The NRC's 1990 Waste Confidence Decision described the studies of the catastrophic loss of reactor SFP water possibly resulting in a fuel fire in a dry pool that the NRC staff had undertaken prior to that time (55 FR 38511; September 18, 1990). The proposed update further details the considerable work that the NRC has done in evaluating the safety of SFP storage, including the scenario of a SFP fire, and notes that following the terrorist attacks of September 11, 2001, the NRC undertook a complete reexamination of SFP safety and security issues (73 FR 59564-59565; October 9, 2008).
10

The proposed update discusses, in particular, the Commission's careful consideration of this issue in responding to the MA and CA Petitions. The petitions asserted that spent fuel stored in high-density SFPs is more vulnerable to a zirconium fire than the NRC had concluded in the GEIS for renewal of NPP licenses. The petitioner raised the possibility of a successful terrorist attack as increasing the probability of a SFP zirconium fire. The petitions claimed that they were proffering “new and significant information” on this issue, including a study by Dr. Thompson,
see Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants,
May 25, 2006 (Thompson 2006 Report), and a report by the National Academies Committee on the Safety and Security of Commercial Spent Nuclear Fuel Storage,
see Safety and Security of Commercial Spent Nuclear Fuel Storage
(National Academies Press: 2006) (NAS Report).

10
NRC's reexamination of safety and security issues included consideration of reports issued by Sandia National Laboratories and the National Academy of Sciences, which are classified, SGI, or official-use-only security-related information, and thus cannot be released to the public; public versions of these reports are available.
See
response to comment 2 above.

The Commission considered all of this information and concluded that “[g]iven the physical robustness of SFPs, the physical security measures, and SFP mitigation measures, and based upon NRC site evaluations of every SFP in the United States * * * the risk of an SFP zirconium fire, whether caused by an accident or a terrorist attack, is very low” (73 FR 46208; October 9, 2008). Later, the United States Court of Appeals for the Second Circuit rejected a challenge to the Commission's denial of the CA and MA petitions.
New York
v.
NRC,
589 F.3d 551 (2d Cir. 2009). The court said that the “relevant studies cited by the NRC in this case constitute a sufficient `basis in fact' for its conclusion that the overall risk is low.”
Id.
at 555.

The commenters are dissatisfied with the NRC's analysis of this issue, but the only new information they have provided is Dr. Thompson's 2009 Report. The NRC has reviewed the 2009 Report and has found no information not previously considered by the NRC.

The Attorney General of California contends that the NRC should have considered the information supplied by the petitioners with the MA and CA Petition. The NRC did consider this information and explained that the information was neither new nor significant and would not lead to an environmental impact finding different from that set forth in the GEIS for license renewal. Dr. Thompson's contention that the NRC did not consider credible threats to ISFSIs that would cause significant environmental impacts has already been addressed by the Commission in
Pacific Gas and Electric Co.
(Diablo Canyon Independent Spent Fuel Storage Installation), 67 NRC 1, CLI-08-01 (2008). In that case, the San Luis Obispo Mothers for Peace submitted an affidavit and report by Dr. Thompson, which argued that the NRC staff should have considered, but failed to consider, “scenarios with much larger releases of radiation [that] are also plausible and should have been considered. * * * [for] example [a scenario] * * * where the penetrating device is accompanied by an incendiary component that ignites the zirconium cladding of the spent fuel inside the storage cask, causing a much larger release of radioactive material than posited in scenarios where the cases sustain minimal damage.”
Id.
at 19. The Commission considered this argument and found that “[a]djudicating alternate terrorist scenarios is impracticable. The range of conceivable (albeit highly unlikely) terrorist scenarios is essentially limitless, confined only by the limits of human ingenuity.”
Id.
at 20. Further, the Commission found that the staff's approach to its terrorism analysis, “grounded in the NRC Staff's access to classified threat assessment information, is reasonable on its face.”
Id.
In his comment, Dr. Thompson attempts to revisit the Diablo Canyon proceeding by claiming that “the Staff limited its examination to Type III releases.” Thompson Report at 48. Not only has this issue already been addressed by the Commission, but some of the specifics of Dr. Thompson's “Type IV” releases are discussed and dismissed by the Commission. Thompson Report Table 7-8;
Diablo Canyon
at 19-20.

Comment 16:
A number of commenters urged the Commission to consider the increasing frequency of spent fuel pool leaks as evidence calling into question the NRC's confidence in the safety of SNF storage in the normal operation of spent fuel pools. Comments submitted by the Attorneys General of the States of New York and Vermont, a supplemental comment from the Attorney General of New York, and the Commonwealth of Massachusetts described leaks of tritium at reactor sites around the country. They believe that increased onsite storage increases the opportunity for human error resulting in unauthorized releases. They are concerned about the lack of monitoring requirements or guidelines for these spent fuel leaks.

NRC Response:
The NRC's proposed update of the Waste Confidence Decision acknowledged incidents of groundwater contamination originating from spent fuel pool leaks. The Liquid Radioactive Releases Lessons Learned Task Force, created in response to these incidents, reported that near-term health impacts resulting from the leaking spent fuel pools that the NRC had examined were negligible but also that measures should be taken to avoid leaks in the

future. The Task Force provided 26 specific recommendations for improvements to The NRC's regulatory programs regarding unplanned radioactive liquid releases.
See
Report Nos. 05000003/2007010 and 05000247/2007010, May 13, 2008 (ADAMS Accession Number ML081340425), as well as “Liquid Release Task Force Recommendations Implementation Status as of February 26, 2008,” (ADAMS Accession Number ML073230982).

The NRC has also revised several guidance documents as well as an Inspection Procedure to address issues associated with leaking spent fuel pools. The NRC will continue to follow this issue and the NRC's regulatory oversight will continue to ensure safety and appropriate environmental protection. Thus, the Commission remains confident that storage of SNF in pools will not have any significant environmental impacts.

Comment 17:
A number of commenters expressed the view that the NRC's updates to the Waste Confidence Decision and Rule do not comply with the holding of the Ninth Circuit Court of Appeals in
San Luis Obispo Mothers for Peace
v.
NRC,
449 F. 3d 1016 (9th Cir. 2006),
cert. denied,
127 S. Ct. 1124 (2007), that environmental analysis under NEPA requires an examination of the environmental impacts that would result from an act of terrorism against an ISFSI because an attack is reasonably foreseeable and not remote and speculative as the NRC had argued before the court.

NRC Response:
Finding 4 considers the potential risks of accidents and acts of sabotage at spent fuel storage facilities. In 1984 and 1990, the NRC provided some discussion of the reasons why it believed that the possibility of a major accident or sabotage with offsite radiological impacts at a spent fuel storage facility was extremely remote. In the proposed update to the Waste Confidence Decision, the Commission gave considerable attention to the issue of terrorism and spent fuel management (
See
73 FR 59567-59568; October 9, 2008). The Commission concluded that “[t]oday spent fuel is better protected than ever. The results of security assessments, existing security regulations, and the additional protective and mitigative measures imposed since September 11, 2001, provide high assurance that the spent fuel in both spent fuel pools and in dry storage casks will be adequately protected.”
Id.

Some commenters believe that the NRC's environmental analysis of the security of spent fuel storage facilities is deficient because it does not include consideration of the environmental impacts of a successful terrorist attack. The commenters recognize that the Commission continues to disagree with the Ninth Circuit and believes that, outside of the Ninth Circuit, the environmental effects of a terrorist attack do not need to be considered in its NEPA analyses.
Amergen Energy Co., LLC
(Oyster Creek Nuclear Generating Station), CLI-07-08, 65 NRC 124 (2007). Recently, the Third Circuit U.S. Court of Appeals upheld the NRC's view that terrorist attacks are too far removed from the natural or expected consequences of agency action to require an environmental impact analysis.
New Jersey Department of Environmental Protection
v.
U.S. Nuclear Regulatory Commission,
561 F.3d 132 (3d Cir. 2009). The Third Circuit stated:

In holding that there is no “reasonably close causal relationship” between a relicensing proceeding and the environmental effects of an aircraft attack on the licensed facility, we depart from the reasoning of the Ninth Circuit * * *. The
Mothers for Peace
court held that, given “the policy goals of NEPA and the rule of reasonableness that governs its application, the possibility of terrorist attack is not so `remote and highly speculative' as to be beyond NEPA's requirements.” * * *. We note, initially, that
Mothers for Peace
is distinguishable on the ground that it involved the proposed construction of a new facility—a change to the physical environment arguably with a closer causal relationship to a potential terrorist attack than the mere relicensing of an existing facility. …. More centrally, however, we disagree with the rejection of the `reasonably close causal relationship' test set forth by the Supreme Court and hold that this standard remains the law in this Circuit. We also note that no other circuit has required a NEPA analysis of the environmental impact of a hypothetical terrorist attack. Id. at 142 (citations and footnote omitted).

But even though, outside of the Ninth Circuit, the NRC continues to adhere to its traditional view that the environmental impacts of a terrorist attack do not need to be considered outside of the Ninth Circuit, the environmental assessment for this update and rule amendment includes a discussion of terrorism in the discussion of the revision to Finding 4 that the NRC believes satisfies the Ninth Circuit's holding in
Mothers for Peace
v.
NRC,
as the decision explicitly left to agency discretion the precise manner in which the NRC undertakes a NEPA-terrorism review.
See

Pacific Gas and Electric Co.
(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-01, 67 NRC 1 (2008),
petition for judicial review pending,
No. 09-1268 (9th Cir.).

Comment 18:
TSEP and the Attorney General of New York (in a supplemental comment) point out that the NRC has treated the risk of a catastrophic fuel fire caused by an attack or an accident that leads to partial or complete drainage of a high-density SFP as a site-specific issue, imposing orders requiring NPPs to enhance security and improve their capabilities to respond to terrorist attack. Some of these orders required licensees to develop specific guidance and strategies to maintain or restore spent fuel pool cooling capabilities (
See
73 FR 59567; October 9, 2008). TSEP and the Attorney General believe that this demonstrates that the NRC considers the risk of a pool fire to be specific to each nuclear plant and that site-specific measures to reduce these risks to an acceptable level must be taken at each plant. TSEP and the Attorney General believe that this is inconsistent with the NRC's reliance on its generic determination in 10 CFR 51.23(a) to deny hearing requests regarding the safety and environmental impacts of spent fuel storage, on contentions that are within the scope of the generic determination, in individual licensing cases. Because the NRC has (allegedly) acknowledged that its findings regarding the safety and security of spent fuel storage are site-specific and not generic in nature, TSEP and the Attorney General believe that the NRC should withdraw its generic finding.

NRC Response:
After the terrorist attacks of September 11, 2001, the Commission issued orders to NPP and ISFSI licensees requiring enhanced protective measures under its Atomic Energy Act authority to “establish by rule, regulation, or order, such standards and instructions to govern the possession and use of [nuclear materials] as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property. * * *” 42 U.S.C. 2201 (2006). These orders were site-specific and required each licensee to buttress its security arrangements to achieve the revised standards set by the Commission. Additionally, the orders were used as an expedient method to impose new security requirements on licensees. Subsequently, some of these new requirements and other additional requirements were codified in rulemaking (
See
72 FR 56287; October 3, 2007, 73 FR 19443; April 10, 2008, 73 FR 51378; September 3, 2008, 73 FR 63546; October 24, 2008; 74 FR 13926; March 27, 2009, 74 FR 17115; April 14,

2009). The NRC's determination that SNF can be stored safely and without significant environmental impacts beyond the licensed life for operation of the reactor for at least 60 years is a generic determination that satisfies both the NRC's NEPA responsibilities and evaluates the safety of the ongoing storage of SNF and HLW. The determination considers reasonably foreseeable risks that could threaten the safety of SNF storage and the environmental impacts of these risks. There is no inconsistency between the NRC's orders enhancing security at each plant and its generic determination that SNF can be safely stored because the requirements imposed by the orders and rulemakings help to ensure the safety and security of the SNF. As the Third Circuit said in its decision upholding the NRC's determination that NEPA did not require that the NRC consider the environmental effects of an aircraft attack on a licensed facility, the fact that the NRC does not have a particular obligation under NEPA does not mean that the NRC “has no obligation to consider how to strengthen nuclear facilities to prevent and minimize the effects of a terrorist attack; indeed, the AEA gives broad discretion over the safety and security of nuclear facilities.”
New Jersey Department of Environmental Protection
v.
U.S. Nuclear Regulatory Commission,
561 F.3d 132, 142 fn 9 (3d Cir. 2009). As discussed in the Response to Comment 17, the NRC's analysis satisfies the Ninth Circuit's holding in
San Luis Obispo Mothers for Peace.

Comment 19:
A commenter stated that the NRC's implication that above-ground storage may be safely conducted for 60 years beyond the operating license of a reactor does not seem to account for probably rapidly changing climactic conditions in the next few decades. This is very critical since most reactor sites are located near large bodies of water.

NRC Response:
The earliest impact to spent fuel storage casks from climate change is not from submergence of structures by rising ocean levels, but rather from an increased risk of potential flooding from storm surge and high winds caused by extreme weather events. Current NRC regulations for design characteristics specifically address severe weather events. Before certification or licensing of a dry storage cask or ISFSI, the NRC requires that the vendor or licensee include design parameters on the ability of the storage and spent fuel storage facilities to withstand severe weather conditions such as hurricanes, tornadoes, and floods.

The NRC's regulations, 10 CFR 72.236 (for casks) and 72.122 (for facilities), require that applications for a Certificate of Compliance (COC) for a dry storage cask and a license to store spent fuel in an ISFSI evaluate the effects of a design basis flood on the facility. The evaluation of a design basis flood includes both static pressure from standing water and the force from a uniform flood-current. In addition, all storage casks approved for use with the general license provisions in 10 CFR part 72 have been evaluated for static pressure and uniform flood-current in the same manner as those for a specific licensee. The NRC has published regulatory guidance that describes acceptable approaches to assessing these impacts; further, the staff is addressing climate change in updates to its guidance. Based on the NRC's activities related to climate change, and the relatively slow rate of this change, the NRC is confident that any regulatory action that may be necessary will be taken in a timely manner to ensure the safety of all nuclear facilities regulated by the NRC.

Based on the models discussed in the NAS study (Potential Impact of Climate Change on U.S. Transportation: Special Report 290), none of the U.S. NPPs (operational or decommissioned) will be under water or threatened by water levels by 2050. The climate change models used in the NAS study are based on work by the Intergovernmental Panel on Climate Change. Climate changes over the next century are expected to result in a sea-level rise of approximately 0.8 meters;
see
J.A. Church
et al., Climate Change 2001: Impacts, Adaptation, and Vulnerability,
Intergovernmental Panel on Climate Change, 642 (2001). Recently, the Intergovernmental Panel on Climate Change published a report confirming an accelerated sea-level rise in North America and concluding there will be further accelerated sea-level rise; the report found that the global mean sea-level is projected to rise by 0.35 ± 0.12 meters from the 1980 to 1999 period to the 2090 to 2099 period (
http://www.ipcc.ch/ipccreports/ar4-wg2.htm
). This conclusion is supported by the findings of the U.S. Global Change Research Program report published in 2009 (
http://downloads.globalchange.gov/usimpacts/pdfs/climate-impacts-report.pdf
). Based on these reports, sea-level rise is controlled by complex processes, and estimated to rise less than 1 meter by 2100. In addition to sea-level rise, NRC facilities may be affected by increased storm surges, erosion, shoreline retreat, and inland flooding. Impacts to coastal areas may be further exacerbated by the land subsiding, as is currently observed in some central Gulf Coast areas. NRC facilities, including ISFSIs, are designed to be robust. The facilities are evaluated to ensure that performance of their safety systems, structures, and components is maintained during flooding events, and are monitored when in use. The lowest grade above sea-level of concern for an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-31637. Public record. Not legal advice.