ML11353A086

New York State (NYS) Pre-Filed Evidentiary Hearing Exhibit NYS000237, 75 Fed. Reg. 81,032 (Dec. 23, 2010) (75 Fed. Reg. 81,032)

ML11353A086
Person / Time
Site:	Indian Point
Issue date:	12/23/2010
From:	Annette Vietti-Cook NRC/SECY
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21573, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, 75FR81032, NRC-2008-0404, RIN 3150-AI47
Download: ML11353A086 (6)

Text

NYS000237 Submitted: December 17, 2011 81032 Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations NUCLEAR REGULATORY 301--415-4737, or by e-mail to environmental impacts for at least 30 COMMISSION pdr.resource@nrc.gov. years beyond the licensed life for Federal Rulemaking Web site: Public operation (which may include the term 10 CFR Part 51 comments and supporting materials of a revised or renewed license) of that

[NRC-2008-0404]

related to this final rule can be found at reactor at its spent fuel storage basin, or http:/lwww.regulations.gov by searching at either onsite or offsite ISFSis; and RIN 3150-AI47 on Docket ID: NRC-2008-0404. 5. The Commission finds reasonable FOR FURTHER INFORMATION CONTACT: assurance that safe independent onsite Consideration of Environmental spent fuel storage or offsite spent fuel Tison Campbell, Office of the General Impacts of Temporary Storage of storage will be made available if such Counsel, U.S. Nuclear Regulatory Spent Fuel After Cessation of Reactor storage capacity is needed. (55 FR Commission, Washington, DC 20555-Operation 38474; September 18, 1990).

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

AGENCY: Nuclear Regulatory tison.campbell@nrc.gov; Lisa London, These five findings formed the basis Commission. Office of the General Counsel, U.S. of the Commission's revised generic ACTION: Final rule. Nuclear Regulatory Commission, determination of no significant Washington, DC 20555-0001, telephone: environmental impact from temporary

SUMMARY

The U.S. Nuclear Regulatory 301--415-3233, e-mail: storage of SNF after cessation of reactor Commission (NRC or Commission) is lisa.london@nrc.gov. operation, which was codified at 10 CFR revising its generic determination on the 51.23(a):

SUPPLEMENTARY INFORMATION:

environmental impacts of storage of The Commission has made a generic spent fuel at, or away from, reactor sites Background determination that, if necessary, spent fuel after the expiration of reactor operating In 1990, the Commission concluded a generated in any reactor can be stored safely licenses. The revisions reflect findings and without significant environmental generic rulemaking proceeding to impact for at least 30 years beyond the that the Commission has reached in an reassess its degree of confidence that update and supplement to the 1990 licensed life for operation (which may radioactive wastes produced by nuclear include the term of a revised or renewed Waste Confidence rule making power plants can be safely disposed of, license) of that reactor at its spent fuel proceeding published elsewhere in this to determine when this disposal or storage basin or at either onsite or offsite issue of the Federal Register. The offsite storage will be available, and to independent spent fuel storage installations.

Commission now finds that, if determine whether radioactive wastes Further, the Commission believes there is necessary, spent fuel generated in any can be safely stored onsite past the reasonable assurance that at least one mined reactor can be stored safely and without geologic repository will be available within expiration of existing facility licenses the first quarter of the twenty-first century, significant environmental impacts for at until offsite disposal or storage is least 60 years beyond the licensed life and sufficient repository capacity will be available. This proceeding reviewed the available within 30 years beyond the licensed for operation (which may include the Commission's 1984 findings on these life for operation of any reactor to dispose of term of a revised or renewed license) of issues, which were developed through a the commercial [HLW] and [SNF] originating that reactor in a combination of storage generic rulemaking proceeding that in such reactor and generated up to that time.

in its spent fuel storage basin or at either became known as the "Waste (55 FR 38474; September 18, 1990) onsite or offsite independent spent fuel Confidence Proceeding." The 1990 Thus, the environmental impacts of storage installations (ISFSis). It also proceeding resulted in the following spent fuel storage for the period finds reasonable assurance that five reaffirmed or revised Waste following the term of a reactor operating sufficient mined geologic repository Confidence findings: license or amendment or reactor capacity will be available for disposal of 1. The Commission finds reasonable combined license or amendment or spent fuel when necessary. assurance that safe disposal of high- initial independent spent fuel storage DATES: The rule is effective on January level radioactive waste (HLW) and spent installation license or amendment do 24, 2011. nuclear fuel (SNF) in a mined geologic not need to be considered in ADDRESSES: You can access publicly repository is technically feasible; proceedings on applications for these available documents related to this 2. The Commission finds reasonable licenses or amendments. See 10 CFR document using the following methods: assurance that at least one mined 51.23(b).

NRC's Public Document Room (PDR): geologic repository will be available In 1999, the Commission reviewed its The public may examine and have within the first quarter of the twenty- Waste Confidence findings and copied for a fee publicly available first century, and that sufficient concluded that experience and documents at the NRC's PDR, Room 0- repository capacity will be available developments after 1990 had confirmed 1F21, One White Flint North, 11555 within 30 years beyond the licensed life the findings and made a comprehensive Rockville Pike, Rockville, Maryland. for operation (which may include the reevaluation of the findings NRC's Agencywide Documents Access term of a revised or renewed license) of unnecessary. It also stated that it would and Management System (ADAMS): any reactor to dispose of the commercial consider undertaking a reevaluation Publicly available documents created or HL W and SNF originating in such when the pending repository received at the NRC are available reactor and generated up to that time; development and regulatory activities electronically at the NRC's electronic 3. The Commission finds reasonable had run their course or if significant and Reading Room at http:/lwww.nrc.gov/ assurance that HL W and SNF will be pertinent unexpected events occurred reading-rm/adams.html. From this page, managed in a safe manner until that raise substantial doubt about the the public can gain entry into ADAMS, sufficient repository capacity is continuing validity of the Waste which provides text and image files of available to assure the safe disposal of Confidence findings (See 64 FR 68005; NRC's public documents. If you do not all HLW and SNF; December 6, 1999).

have access to ADAMS or if there are 4. The Commission finds reasonable problems in accessing the documents assurance that, if necessary, spent fuel The Proposed Rule located in ADAMS, contact the NRC's generated in any reactor can be stored In 2008, the Commission decided that PDR reference staff at 1-800-397-4209, safely and without significant the generic resolution of appropriate OAGI0001381_00001

Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations 81033 issues that might be raised in licensing Finding 4: The Commission finds regulations before they can receive a proceedings on anticipated combined reasonable assurance that, if necessary, license. And the Waste Confidence operating license (COL) applications for spent fuel generated in any reactor can Decision and Rule satisfy a portion of new reactors would enhance the be stored safely and without significant the NRC's NEPA obligations-those efficiency of the COL proceedings; environmental impacts for at least 60 associated with the environmental waste confidence was one of these years beyond the licensed life for impacts after the end of license life. In issues. Prior to NRC's original Waste operation (which may include the term this rulemaking, the Waste Confidence Confidence proceeding, the Commission of a revised or renewed license) of that Decision is the Environmental stated that, as a matter of policy, it reactor in a combination of storage in its Assessment-the NRC's NEPA "would not continue to license reactors spent fuel storage basin and either analysis-that provides the basis for the if it did not have reasonable confidence onsite or offsite independent spent fuel generic determination of no significant that the wastes can and will in due storage installations. environmental impacts reflected in the course be disposed of safely" (42 FR The Commission, in response to rule (10 CFR 51.23).

34391, 34393; July 5, 1977). It has been public comments, and to achieve greater The Commission is amending its 20 years since the last formal review of consistency with Finding 4, is also generic determination of no significant the Waste Confidence findings, so the modifying the rule to include a time environmental impact from the Commission is revisiting the findings to frame for the safe storage of SNF: temporary storage of spent fuel after address their continuing validity, given The Commission has made a generic cessation of reactor operation contained the passage of time since the last update determination that, if necessary, spent in 10 CFR 51.23(a) to conform it to the to the Waste Confidence Decision, and fuel generated in any reactor can be Commission's revised Finding 4 of the given the upcoming COL proceedings. stored safely and without significant Waste Confidence Decision. Finding 4 is The Commission is now updating and environmental impacts for at least 60 revised to provide reasonable assurance revising the 1990 Waste Confidence years beyond the licensed life for that spent fuel can be stored safely and Decision and Rule. operation (which may include the term without significant environmental of a revised or renewed license) of that impacts for at least 60 years beyond the On October 9, 2008 (73 FR 59551), the reactor in a combination of storage in its licensed life for operation of a reactor, Commission published the proposed spent fuel storage basin and at either rather than for at least 30 years as in the update and revision of two of the Waste onsite or offsite independent spent fuel present Finding 4. The Commission is Confidence findings, along with a storage installations. Further, the also revising the final rule to remove the request for public comment, in the Commission believes there is reasonable time frame from the second sentence of Federal Register. In the same issue of assurance that sufficient mined geologic 10 CFR 51.23(a); instead the the Federal Register, the Commission repository capacity will be available to Commission has incorporated the proposed a conforming amendment of dispose of the commercial high-level language adopted in Finding 2: That its generic determination of no radioactive waste and spent fuel sufficient repository capacity will be significant environmental impact from generated in any reactor when available to dispose of spent nuclear the temporary storage of spent fuel after necessary. fuel and high-level waste when cessation of reactor operations codified Public Comments necessary.

at 10 CFR 51.23(a) (73 FR 59547; The revised generic determination is October 9, 2008). The Commission The NRC received 158 comment not a generic licensing decision. It does proposed to modify its generic letters, including a late-supplemental not authorize the operation of a nuclear determination to state that, if necessary, comment from the Attorney General of power plant (NPP), the renewal of a NPP spent fuel generated in any reactor can New York, as well as two form letters license, or the production or storage of be stored safely and without significant sent by 1,990 and 941 commenters, spent fuel by a NPP. Licensing environmental impacts beyond the respectively. Many of the comment proceedings for any of these actions are licensed life for operation (which may letters contained multiple comments on supported by both specific and generic include the term of a revised or renewed the proposed rule, the proposed environmental impact statements (EISs) license) of that reactor at its spent fuel revisions to the Waste Confidence or environmental assessments (EAs) that storage basin or at either onsite or offsite findings, or both. All comments consider the potential environmental ISFSis until a disposal facility can received on both notices have been impacts of storage of spent fuel during reasonably be expected to be available. considered together and are addressed the term of the license. Because of the The Final Rule in the final update to the Waste generic determination in§ 51.23(a) the Confidence Decision. The main issues potential environmental impact of After evaluating the public comments raised by the comments are briefly storage of spent fuel for a 60-year period on the proposed rule and update to the discussed below. (rather than a 30-year period) after the Waste Confidence Decision, the Many commenters argued that NRC end of licensed operations or whether Commission is now publishing its final has not complied with the National ultimate disposal will be available, is rule amending 10 CFR 51.23(a), along Environmental Policy Act (NEPAl not considered in individual NPP with the final update and revision to the because they believe that the revisions licensing reviews. The EA supporting Waste Confidence Decision (published to the findings and amended rule this 30-year extension of the generic separately in this issue of the Federal constitute "generic licensing decisions" determination and the finding of Register). The Commission is revising and need to be supported by a Generic reasonable assurance of a safe, timely two of its findings: Environmental Impact Statement (GElS) disposal facility is the Waste Confidence Finding 2: The Commission finds that addresses all aspects of the nuclear Decision Update, which supports the reasonable assurance that sufficient fuel cycle. But as the Commission Commission's Finding of No Significant mined geologic repository capacity will discusses in its comment responses, Impact (FONSI) and concurrent decision be available to dispose of the neither the Waste Confidence Rule nor to not conduct an EIS.

commercial high -level radioactive waste the Decision allow for the issuance of a A number of commenters asserted and spent fuel generated in any reactor license; applicants for an NRC license that NRC, in preparing an EA and when necessary. must comply with the relevant NRC FONSI, has not complied with the OAGI0001381 00002

81034 Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations procedural requirements for a FONSI, Ninth Circuit's holding in Mothers for is necessary to provide an incentive for which include the preparation of an EA Peace. the Federal Government to meet its and the identification of all the Some commenters believe that this responsibilities for the disposal of spent documents that the FONSI is based on. revision of the Waste Confidence fuel and HLW.

As stated above, the update and revision findings violates the Atomic Energy Act The Commission has confidence that of the Waste Confidence Decision is the of 1954 (AEA) because the AEA spent fuel can be safely stored without EA supporting the amendment of the precludes NRC from licensing any new significant environmental impact for generic determination in 10 CFR NPP or renewing the license of any long periods of time for all the reasons 51.23(a). All of the documents relied existing NPP if it would be "inimical described in its discussion of Findings upon in preparing the Update and Final * *

• to the health and safety of the 3, 4, and 5 in the update to the Waste Rule are referenced. Two of the public." 42 U.S.C. 2133(d). As explained Confidence Decision. Further, as referenced documents are not publicly above, NRC's revised Waste Confidence discussed in Finding 2, the Commission available; these are reports concerning findings and revised generic has confidence that sufficient mined the safety and security of spent fuel pool determination are not licensing geologic disposal capacity will be storage issued by Sandia National decisions, but merely generically available when necessary. However, Laboratories (SNL) and the National resolve certain discrete issues in there are issues beyond the Academy of Sciences (NAS), which are licensing proceedings. They are not Commission's control, including the either Classified, Safeguards determinations made as part of the political and societal challenges of Information (SGI), or Official Use licensing proceedings for NPPs or siting a HLW repository, that make it Only-Security Related Information. ISFSis or the renewal of those licenses. premature to predict a date when a Although these documents cannot be They do not authorize the storage of repository will become available. The released to the public, redacted or SNF in spent fuel pools or ISFSis. The Commission has therefore decided not publicly available summaries are revised findings and generic to adopt a specific time frame in available. A redacted version of the SNL determination include conclusions of Finding 2 or its final rule. Instead, the study can be found in ADAMS (ADAMS the Commission's environmental Commission is expressing its reasonable Accession Number ML062290362) and analyses, under NEPA, ofthe assurance that a repository will be the unclassified summary of the NAS foreseeable environmental impacts available "when necessary."

report can be purchased or downloaded stemming from the storage of spent fuel The Commission believes that this after the end of reactor operation. standard accurately reflects its position, for free by accessing the NAS Web site Other comments questioned NRC's as discussed in the analysis supporting at: http:/lwww.nap.edu/

basis for reaffirming Finding 1 and Finding 2, that a repository can be catalog.php?record_id=11263. No other Finding 3 and for the revisions made in constructed within 25-35 years of a non-public documents are referenced in Findings 2 and 4. Those comments are Federal decision to do so. Further, the the Waste Confidence Update.

fully addressed in the final update as Commission continues to have A number of commenters argued that well as other, more minor, comments. confidence, as expressed in Findings 3 NRC's revisions of its Waste Confidence The Commission, below, restates its and 5, that safe and sufficient onsite or findings and temporary storage rule do reasons for revising Findings 2 and 4. offsite storage capacity is available and not comply with the holding of the U.S. will be available until a repository Court of Appeals for the Ninth Circuit Specific Question for Public Comment becomes available for disposal. In in San Luis Obispo Mothers for Peace v. The Waste Confidence Decision addition, revised Finding 4 supports at NRC, 449 F. 3d 1016 (2006), cert. Update considers the many comments least 60 years of safe and denied, 127 S. Ct. 1124 (2007), that received on the specific question for environmentally sound onsite or offsite NEP A requires an examination of the public comment in the Commission's storage beyond the end of the licensed environmental impacts that would proposals-whether Finding 2 should life for operation of any nuclear power result from an act of terrorism against an contain a target date, as proposed, or reactor. It necessarily follows from these ISFSI. These commenters believe that an take a more general approach that a findings that the Commission has attack is reasonably foreseeable and repository will be available when reasonable assurance that sufficient therefore subject to a NEPA review. needed (the alternative approach). The repository capacity will be available Despite the outcome of Mothers for State of Nevada, Clark and Eureka before there are safety or environmental Peace, the Commission has adhered to Counties in Nevada, and the Nuclear issues associated with the SNF and its traditional position (outside of the Energy Institute favor the alternative HL W that would require the material to Ninth Circuit) that the environmental approach. They generally believe that a be removed from storage and placed in effects of a terrorist attack do not need time frame involves too much a disposal facility.

to be considered in its NEPA analyses. speculation about future events and that In short, the Commission can express See Amergen Energy Co., LLC (Oyster licensed storage of SNF will be safe no its reasonable assurance that disposal Creek Nuclear Generating Station), CLI- matter what the time needed. Several capacity will become available when 07-08, 65 NRC 124 (2007). And in 2009, states; State organizations; Nye County, necessary and that there will be the U.S. Court of Appeals for the Third Nevada; environmental groups; and sufficient safe and environmentally Circuit upheld the Commission's other commenters want the Commission sound storage available for all of the position that terrorist attacks are too far to retain a time frame. In general, they SNF until this disposal capacity removed from the natural or expected believe that, in the absence of a time becomes available.

consequences of agency action to frame, the Commission's confidence in require an environmental impact the eventual disposal of spent fuel Safe Storage of Spent Fuel analysis. New Jersey Dept. of would rest on pure speculation; that it This update reflects the Commission's Environmental Protection v. U.S. would ignore intergenerational ethical increased confidence in the safety and Nuclear Regulatory Com'n, 561 F.3d 132 concerns of this generation reaping the security of SNF storage, both in spent (2009). Even so, the EA for this update benefits of nuclear energy while passing fuel pools and in ISFSis. In 1990, the and rulemaking includes a discussion of off the problem of waste disposal to Commission determined that experience terrorism that NRC believes satisfies the future generations; and that a time frame with spent fuel pools continued to OAGI0001381 00003

Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations 81035 confirm that pool storage is a benign Matter of Private Fuel Storage, L.L.C., political consensus necessary for a environment that does not lead to CLI-05-19; 62 NRC 403 (2005). successful repository program will be significant degradation of spent fuel In sum, the characteristics of spent reached in the near future. Therefore, integrity; that the pools in which the fuel storage facilities, the studies of the the Commission has adopted the assemblies are stored will remain safe safety and security of spent fuel storage approach proposed in the Additional for extended periods; and that (conducted both before and after the Question for Public Comment, and has degradation mechanisms are well 1990 update to the Decision and Rule), removed the target date from Finding 2 understood and allow time for NRC's extensive experience in (73 FR 59561; October 9, 2008).

appropriate remedial action. Similarly, regulating spent fuel storage and ISFSis This modification to Finding 2 does by 1990, the Commission had gained and in certifying dry cask storage not mean that the Commission is experience with dry storage systems that systems, NRC's actions in approving 40- endorsing indefinite storage of HL W and confirmed the Commission's 1984 year license renewals for three ISFSis SNF; Finding 4 has not been changed, (meaning that the safety of dry storage and only considers "at least 60 years" of conclusions that material degradation after licensed operation at these ISFSis storage beyond the licensed life for processes in dry storage are well has been approved for at least a 60-year operation. If the expiration of this time understood and that dry storage systems period), and an additional 20 years of nears without the availability of a are simple, passive, and easily experience with safely storing spent fuel repository, the Commission will revisit maintained. In fact, one of the bases for support the Commission's confidence in the Waste Confidence Decision and the Commission's confidence in the the long-term safety and security of Rule. The Commission's current Waste safety of dry storage was its August 19, spent fuel storage. Confidence Decision and Rule reflect 1988 (53 FR 31651) amendment to 10 the NRC's best information and CFR part 72 that addressed spent fuel The Availability of a Repository judgment. But the longer-term storage in a monitored retrievable On June 3, 2008, the Department of rulemaking and study of storage for storage installation (MRS) for a license Energy (DOE) submitted the Yucca more than 120 years that the term of 40 years, with the possibility of Mountain (YM) application to NRC and Commission directed the staff to start in renewal. In the EA for the MRS rule, the on September 8, 2008, NRC staff its Staff Requirements Memorandum Commission found confidence in the notified DOE that it found the (SRM) (SRM-SECY-09-0090, M100915; safety and environmental insignificance application acceptable for docketing (73 September 15, 2010) will result in the of dry storage for 70 years following a FR 53284; September 15, 2008). Commission having more information in period of 70 years of storage in a storage Although the licensing proceeding for a timely fashion should additional pool, for a total of 140 years of storage. the YM repository is still pending, the adjustments to the Waste Confidence See NUREG-1092: Environmental current Administration and DOE Decision and Rule prove necessary.

Assessment for 10 CFR Part 72, leadership have made it clear that they The Commission remains confident "Licensing Requirements for the oppose the construction of the YM that disposal of SNF and HL W in a Independent Storage of Spent Fuel and repository. The President's 2010 budget geologic repository is technically High-Level Radioactive Waste," August proposal stated that the "Administration feasible and that DOE should be able to 1984. Nothing has occurred in the proposes to eliminate the Yucca locate a suitable site for repository intervening years to call into question Mountain repository program." development in no more time than was the Commission's confidence in the Terminations, Reductions, and Savings: needed for the YM repository program long-term safety of both wet and dry Budget of the U.S. Government, Fiscal (about 20 years). Both domestic and storage of SNF. Subsequently, the NRC Year 2010, Page 68 available at http:/I international developments have made has approved a 20-year license renewal www.gpoaccess.gov/usbudgetlfy1 0/pdf/ it clear that confidence in the technical for a wet ISFSI and 40-year license trs.pdf(last visited on November 9, feasibility of a repository alone is not renewals for three dry ISFSis. 2010). sufficient to bring about the broader On March 3, 2010, DOE filed a Notice societal and political acceptance of a Since 1990, the Commission's of Withdrawal with the Atomic Safety repository. Achieving this broader primary focus has been on potential and Licensing Board (Board) that is support for construction of a repository accidents. And since September 11, presiding over the YM licensing at a particular site requires a broad 2001, this focus has expanded to proceeding (ADAMS Accession Number public outreach program. In some include security events that might lead ML100621397). On June 29, 2010, the countries community acceptance has to a radioactive release from stored SNF. Board denied DOE's motion; and on taken 25-35 years.

Multiple studies of the safety and June 30, 2010, the Secretary of the For example, if a new repository security of spent fuel storage, including Commission invited the parties to file program starts in 2025, it could be the potential for the draining of a spent briefs regarding whether the reasonable to expect that a repository fuel pool leading to a zirconium fire and Commission should review, reverse, or would become available by 2050-2060.

for an airplane crashing into an ISFSI, uphold the Board's decision (ADAMS But the Commission cannot express have been undertaken by NRC and by Accession Numbers ML101800299 and reasonable assurance in 2025 as the start other entities, such as the NAS. These ML101810432). The Commission has date for a new program because it is not studies and the Commission's regulatory not yet issued its decision. possible to predict when a political and actions have reinforced NRC's view that Recent events, coupled with its social consensus will be reached. The spent fuel storage systems are safe, ongoing analysis of the target date Commission believes that there is no secure, and without significant approach used in Finding 2, have specific date by which a repository must environmental impacts. See, e.g., Letter caused the Commission to reconsider its be available for safety or environmental to Senator Pete V. Domenici from Nils position regarding the use of a target reasons; the Commission did not define J. Diaz, March 14, 2005, enclosing NRC date in Finding 2. As discussed above, a period when a repository will be Report to Congress on the [NAS] Study the Commission continues to have needed for safety or environmental on the Safety and Security of confidence that a repository can be reasons in 1990 and it is not doing so Commercial [SNF] Storage, March 2005; constructed in 25-35 years, but it is now-it is only explaining its view of (73 FR 46204; August 8, 2008); In the uncertain whether the social and when a repository could reasonably be OAGI0001381 00004

81036 Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations expected to be available after a Federal acceptance will occur, it is unable to in the present rule that was excluded decision to construct a repository. express reasonable assurance in a from the proposed rule. This statement specific target date for the availability of was added to make clear that Finding 4 Availability of Repository Capacity for a repository. The Commission does, does not contemplate indefinite storage Disposal of Spent Fuel From All however, believe that a repository can and to underscore that the 60-year Reactors be constructed within 25-35 years of a storage period is related to the The Commission's generic Federal decision to construct a Commission's expectation that determination of no significant repository. sufficient repository capacity will be environmental impact from the Given the ongoing activities of the available when necessary. Accordingly, temporary storage of spent fuel after Blue-Ribbon Commission on America's the added sentence provides that there cessation of reactor operation has Nuclear Future, events in other is "reasonable assurance that sufficient included a prediction that sufficient countries, the viability of safe long-term mined geologic repository capacity will repository capacity for a reactor's fuel storage for at least 60 years (and perhaps be available to dispose of the will be available within 30 years beyond longer) after reactor licenses expire, and commercial high -level radioactive waste the licensed life for operation of that the Federal Government's statutory and spent fuel generated in any reactor reactor. This prediction was not based obligation to develop a HL W repository, when necessary."

on safety or environmental the Commission has confidence that a Section 51.23(a) is also revised to considerations; it was based on finding repository will be made available well provide the Commission's generic that 30 years beyond the licensed life for before any safety or environmental determination that, if necessary, spent operation of even the earliest reactors concerns arise from the extended fuel generated in any reactor can be would not occur until after 2025. Thus, storage of spent nuclear fuel and high- stored safely and without significant the Commission's confidence that a level waste. In other words, a repository environmental impacts for at least 60 repository would be available by 2025 will be available when necessary. For years beyond the licensed life for still meant that no reactor would need these reasons, the Commission is operation (which may include the term to store its SNF for more than 30 years amending its generic determination that of a revised or renewed license) of that beyond its licensed life for operation. If sufficient repository capacity will be reactor in a combination of storage in its it is assumed that a repository will not available "within 30 years of the spent fuel storage basin or at either be available until well after 2025, then expiration of the licensed life for onsite or offsite ISFSis. The time period this prediction can no longer be operation of all reactors" to reflect its of "at least 30 years" beyond the maintained (the analysis supporting reasonable assurance that sufficient licensed life for operation is deleted.

Finding 2 indicates that if the political repository capacity will be available This amendment also deletes the and societal roadblocks were resolved when necessary. predictions that at least one mined today, a repository would not be As stated above, this is not a safety geologic repository will be available available until at least 2035-2045). finding, and the amendment is made within the first quarter of the twenty-According to NRC's "High-Value solely to be consistent with an first century and that sufficient Datasets," there are 14 reactor operating assumption that a repository will not be repository capacity will be available licenses that will expire between 2012 available until 25-35 years after the within 30 years beyond the licensed life and 2020 and an additional 36 licenses resolution of the political and societal for operation of any reactor to dispose that will expire between 2021 and 2030. issues associated with a repository. As of the commercial HL W and SNF NRC High-Value Datasets, http:// explained in the update to the Waste originating in such reactor and www.nrc.gov/public-involve/ Confidence Decision, the Commission's generated up to that time. The open.html#datasets (last visited confidence that a repository will be amendment adds the expectation that November 9, 2010). available when necessary rests on a sufficient mined geologic repository For licenses that are not renewed, number of factors, including (for capacity will be available to dispose of some spent fuel will need to be stored example) the options being considered the commercial HL W and spent fuel for more than 30 years beyond the by the Blue-Ribbon Commission, the originating in any reactor when licensed life for operation. There are 23 time it likely will take to site, license, necessary.

reactors that were formerly licensed to and build a repository, the Federal operate by the NRC or the Atomic Voluntary Consensus Standards Government's commitment, by law (the Energy Commission (the NRC's Nuclear Waste Policy Act) to dispose of The National Technology Transfer predecessor agency) and have been spent fuel, and developments in other and Advancement Act of 1995 (Pub. L.

permanently shut down. Id. For most of countries. 104-113) requires that Federal agencies these plants, 30 years beyond the use technical standards that are licensed life for operation will fall in the Summary of Amendments by Section developed or adopted by voluntary 2030s and 2040s. Thus, for virtually all The Commission is adopting the consensus standards bodies unless the of these plants, spent fuel will have to proposed revision, with some changes. use of such a standard is inconsistent be stored beyond 30 years from the The rule is being revised to more closely with applicable law or otherwise expiration of the license if a repository track the language in final Findings 2 impractical. In this final rule, NRC is is not available until well after 2025. and 4; the basis for the rule is identical modifying its generic determination on Further, the Commission has concerns to the basis for the findings, no matter the consideration of environmental about the use of the target date approach how the rule itself is phrased. But to impacts of temporary storage of spent used in proposed Finding 2 and the avoid confusion and respond to the fuel after cessation of reactor operations proposed rule and has decided not to issues raised in the comments, the to provide that, if necessary, spent fuel adopt this approach. A target date Commission has reconsidered the generated in any reactor can be stored requires the Commission to have phrasing of the proposed rule, and the safely and without significant reasonable assurance of when a generic determination in the final rule environmental impacts for at least 60 repository will become available; but, now is made identical to Finding 4. years beyond the licensed life for because the Commission cannot predict Section 51.23(a) is also revised to operation (which may include the term when this societal and political reinsert a version of the second sentence of a revised or renewed license) of that OAGI0001381 00005

Federal Register I Vol. 75, No. 246 I Thursday, December 23, 2010 I Rules and Regulations 81037 reactor in a combination of storage in its which provides that no discussion of 4334, 4335), and Pub. L.95-604, Title II, 92 spent fuel storage basin and at either any environmental impact of spent fuel Stat. 3033-3041; and sec. 193, Pub. L. 101-onsite or offsite ISFSis. This action does storage in reactor facility storage pools 575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 41.80, and 51.97 also not constitute the establishment of a or ISFSis for the period following the issued under sees. 135, 141, Pub. L.97-425, standard that establishes generally term of the reactor operating license or 96 Stat. 2232, 2241, and sec. 148, Pub. L.

applicable requirements. amendment or initial ISFSI license or 100-203, 101 Stat. 1330-223 (42 U.S.C.

amendment for which application is 10155, 10161, 10168). Section 51.22 also Finding of No Significant made is required in any environmental issued under sec. 274, 73 Stat. 688, as Environmental Impact: Availability report, environmental impact statement, amended by 92 Stat. 3036-3038 (42 U.S.C.

This final rule amends the generic environmental assessment, or other 2021) and under Nuclear Waste Policy Act of determination in 10 CFR 51.23 to state analysis prepared in connection with 1982, sec. 121, 96 Stat. 2228 (42 U.S.C.

that, if necessary, spent fuel generated certain actions. This rule affects only 10141). Sections 51.43, 51.67, and 51.109 in any reactor can be stored safely and also under Nuclear Waste Policy Act of 1982, the licensing and operation of nuclear without significant environmental sec. 114(f), 96 Stat. 2216, as amended (42 power plants or ISFSis. Entities seeking U.S.C. 10134 (f)).

impacts for at least 60 years beyond the or holding Commission licenses for licensed life for operation (which may these facilities do not fall within the

• 2. In§ 51.23, paragraph (a) is revised include the term of a revised or renewed scope of the definition of "small to read as follows:

license) of that reactor in a combination entities" set forth in the Regulatory § 51.23 Temporary storage of spent fuel of storage in its spent fuel storage basin Flexibility Act or the size standards after cessation of reactor operation-and at either onsite or offsite ISFSis. established by the NRC at 10 CFR 2.810. generic determination of no significant The environmental assessment on environmental impact.

which the revised generic determination Backfit Analysis (a) The Commission has made a is based is the revision and update to The NRC has determined that the generic determination that, if necessary, the Waste Confidence findings backfit rule(§§ 50.109, 70.76, 72.62, or spent fuel generated in any reactor can published elsewhere in this Federal 76.76) does not apply to this final rule be stored safely and without significant Register. Based on this analysis, the because this amendment does not environmental impacts for at least 60 Commission finds that this final involve any provisions that would years beyond the licensed life for rulemaking has no significant impose backfits as defined in the backfit operation (which may include the term environmental impacts. The final rule. Therefore, a backfit analysis is not of a revised or renewed license) of that revisions and update to the Waste required.

reactor in a combination of storage in its Confidence findings are available as Congressional Review Act spent fuel storage basin and at either specified in the ADDRESSES section of In accordance with the Congressional onsite or offsite independent spent fuel this document.

Review Act of 1996, the NRC has storage installations. Further, the Paperwork Reduction Act Statement determined that this action is not a Commission believes there is reasonable This final rule does not contain a new major rule and has verified this assurance that sufficient mined geologic or amended information collection determination with the Office of repository capacity will be available to requirement subject to the Paperwork Information and Regulatory Affairs of dispose of the commercial high-level Reduction Act of 1995 (44 U.S.C. 3501 OMB. radioactive waste and spent fuel et seq.). Existing requirements were generated in any reactor when List of Subjects in 10 CFR Part 51 necessary.

approved by the Office of Management and Budget (OMB) approval number Administrative practice and * * * *

• 3150-0021. procedure, Environmental impact Dated at Rockville, Maryland, this 9th day statement, Nuclear materials, Nuclear of December, 2010.

Public Protection Notification power plants and reactors, Reporting For the Nuclear Regulatory Commission.

The NRC may not conduct or sponsor, and recordkeeping requirements.

Annette L. Vietti-Cook, and a person is not required to respond

• For the reasons set out in the to a request for information or an Secretary of the Commission.

preamble and under the authority of the

[FR Doc. 2010-31624 Filed 12-22-10; 8:45am]

information collection requirement Atomic Energy Act of 1954, as amended; unless the requesting document the Energy Reorganization Act of 1974, BILLING CODE 7590-01-P displays a currently valid OMB control as amended; and 5 U.S.C. 552 and 553, number. the NRC is adopting the following amendment to 10 CFR part 51. NUCLEAR REGULATORY Regulatory Analysis COMMISSION A regulatory analysis has not been PART 51-ENVIRONMENTAL prepared for this regulation because this PROTECTION REGULATIONS FOR 10 CFR Part 51 regulation does not establish any DOMESTIC LICENSING AND RELATED

[NRC-2008-0482]

requirements that would place a burden REGULATORY FUNCTIONS on licensees. Waste Confidence Decision Update

• 1. The authority citation for part 51 Regulatory Flexibility Certification continues to read as follows:

AGENCY: Nuclear Regulatory Under the Regulatory Flexibility Act Authority: Sec. 161, 68 Stat. 948, as Commission.

of 1980, 5 U.S.C. 605(b), the amended, sec. 1701, 106 Stat. 2951, 2952, ACTION: Update and final revision of Commission certifies that this rule does 2953 (42 U.S.C. 2201, 2297(f)); sees. 201, as amended, 202, 88 Stat. 1242, as amended, Waste Confidence Decision.

not have a significant economic impact 1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 on a substantial number of small Stat. 2750 (44 U.S.C. 3504 note). Subpart A

SUMMARY

The U.S. Nuclear Regulatory entities. This final rule describes a also issued under National Environmental Commission (NRC or Commission) is revised basis for continuing in effect the Policy Act of 1969, sees. 102, 104, 105, 83 updating its Waste Confidence Decision current provisions of 10 CFR 51.23(b), Stat. 853-854, as amended (42 U.S.C. 4332, of 1984 and, in a parallel rulemaking OAGI0001381 00006