ML120970148

Federal Register Notice 81040

ML120970148
Person / Time
Issue date:	12/23/2010
From:	Annette Vietti-Cook NRC/SECY
To:
SECY/RAS
References
74FR38117, PR 51
Download: ML120970148 (40)

Text

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / 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 secs. 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 the licensing and operation of nuclear also under Nuclear Waste Policy Act of 1982, 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 Secretary of the Commission.

to a request for information or an preamble and under the authority of the information collection requirement Atomic Energy Act of 1954, as amended; [FR Doc. 2010-31624 Filed 12-22-10; 8:45 am]

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 51ENVIRONMENTAL 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.

mstockstill on DSKH9S0YB1PROD with RULES2 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)); secs. 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, secs. 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 VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81038 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations proceeding, revising its generic proceedings for applications for nuclear those reactor sites until an offsite determinations in the NRCs regulations. power plant (NPP) licensees anticipated solution was available.

ADDRESSES: You can access publicly in the near future by ensuring that the The Waste Confidence proceeding available documents related to this findings are up to date. also stemmed from the Commissions document using the following methods: The Commission has considered statement, in denying a petition for NRCs Public Document Room (PDR): developments since 1990 and has rulemaking filed by the Natural The public may examine and have reviewed its five prior findings and Resources Defense Council (NRDC), that copied for a fee publicly available supporting environmental analysis. As a it intended to periodically reassess its documents at the NRCs PDR, Room O1 result of this review, the Commission is finding of reasonable assurance that F21, One White Flint North, 11555 revising the second and fourth findings methods of safe permanent disposal of Rockville Pike, Rockville, Maryland. in the Waste Confidence Decision as high-level radioactive waste (HLW)

NRCs Agencywide Documents Access follows: would be available when they were and Management System (ADAMS): Finding 2: The Commission finds needed. Further, the Commission stated Publicly available documents created or reasonable assurance that sufficient mined that, as a matter of policy, it would not received at the NRC are available geologic repository capacity will be available continue to license reactors if it did not electronically at the NRCs electronic to dispose of the commercial high-level have reasonable confidence that the Reading Room at http://www.nrc.gov/ radioactive waste and spent fuel generated in wastes can and will in due course be any reactor when necessary.

reading-rm/adams.html. From this page, disposed of safely (42 FR 34391, 34393; Finding 4: The Commission finds the public can gain entry into ADAMS, reasonable assurance that, if necessary, spent July 5, 1977), pet. for rev. dismissed sub which provides text and image files of fuel generated in any reactor can be stored nom., NRDC v. NRC, 582 F.2d 166 (2d NRCs public documents. If you do not safely without significant environmental Cir. 1978)).1 have access to ADAMS or if there are impacts for at least 60 years beyond the The Waste Confidence proceeding problems in accessing the documents licensed life for operation (which may resulted in the following five Waste located in ADAMS, contact the NRCs include the term of a revised or renewed Confidence Findings, which the license) of that reactor in a combination of Commission issued on August 31, 1984:

PDR reference staff at 1-800-397-4209, storage in its spent fuel storage basin and 301-415-4737, or by e-mail to either onsite or offsite independent spent fuel (1) The Commission finds reasonable pdr.resource@nrc.gov. storage installations. assurance that safe disposal of HLW and SNF Federal Rulemaking Web site: Public in a mined geologic repository is technically comments and supporting materials The Commission reaffirms the three feasible; related to this final rule can be found at remaining findings. Each finding and (2) The Commission finds reasonable http://www.regulations.gov by searching the reasons for revising or reaffirming assurance that one or more mined geologic on Docket ID: NRC-2008-0482. the finding are discussed below. In repositories for commercial HLW and SNF keeping with revised Findings 2 and 4, will be available by the years 2007-2009 and FOR FURTHER INFORMATION CONTACT: that sufficient repository capacity will be the Commission is concurrently Tison Campbell, Office of the General publishing in this issue of the Federal available within 30 years beyond the Counsel, U.S. Nuclear Regulatory Register conforming amendments to 10 expiration of any reactor operating license to Commission, Washington, DC 20555- dispose of existing commercial HLW and CFR 51.23(a), which provides a generic SNF originating in such reactor and 0001, telephone: 301-415-8579, e-mail: determination of the environmental tison.campbell@nrc.gov; Lisa London, generated up to that time; impacts of storage of spent fuel at, or (3) The Commission finds reasonable Office of the General Counsel, U.S. away from, reactor sites after the assurance that HLW and SNF will be Nuclear Regulatory Commission, expiration of reactor operating licenses, managed in a safe manner until sufficient Washington, DC 20555-0001, telephone: and expresses reasonable assurance that repository capacity is available to assure the 301-415-3233, e-mail: sufficient geologic disposal capacity safe disposal of all HLW and SNF; lisa.london@nrc.gov. will be available when necessary. (4) The Commission finds reasonable In October 1979, the NRC initiated a assurance that, if necessary, spent fuel SUPPLEMENTARY INFORMATION:

generated in any reactor can be stored safely rulemaking proceeding, known as the Background and without significant environmental Waste Confidence proceeding, to assess impacts for at least 30 years beyond the On September 18, 1990 (55 FR 38474), its degree of assurance that radioactive expiration of that reactors operating license the NRC issued a decision reaffirming wastes produced by NPPs can be safely at that reactors spent fuel storage basin, or and revising, in part, the five Waste disposed of, to determine when such at either onsite or offsite independent spent Confidence Findings reached in its 1984 disposal or offsite storage will be fuel storage installations (ISFSIs);

Waste Confidence Decision. The 1984 available, and to determine whether (5) The Commission finds reasonable Decision and the 1990 update to the radioactive wastes can be safely stored assurance that safe independent onsite or Decision were products of rulemaking onsite past the expiration of existing offsite spent fuel storage will be made proceedings designed to assess the facility licenses until offsite disposal or available if such storage capacity is needed (49 FR 34658).

degree of assurance that radioactive storage is available (44 FR 61372, wastes generated by nuclear power 61373; October 25, 1979). The Based on these findings, the plants can be safely disposed of, to Commissions action responded to a Commission promulgated 10 CFR determine when disposal or offsite remand from the U.S. Court of Appeals 51.23(a) to provide a generic storage would be available, and to for the District of Columbia Circuit in determination that for at least 30 years determine whether radioactive wastes State of Minnesota v. NRC, 602 F.2d 412 1 The NRDC petition asserted that the Atomic can be safely stored onsite past the (DC Cir.1979). That case questioned mstockstill on DSKH9S0YB1PROD with RULES2 Energy Act of 1954 (AEA). Public Law 83-703, 68 expiration of existing facility licenses whether an offsite storage or disposal Stat. 919 (1954), required NRC to make a finding, until offsite disposal or storage is solution would be available for the before issuing an operating license for a reactor, that available. In 2008, the Commission spent nuclear fuel (SNF) produced at permanent disposal of HLW generated by that decided to undertake a review of its the Vermont Yankee and Prairie Island reactor can be accomplished safely. The Commission found that the AEA did not require Waste Confidence Decision and Rule as NPPs at the expiration of the licenses for this safety finding to be made in the context of part of an effort to enhance the those facilities in 2007-2009 or, if not, reactor licensing, but rather in the context of the efficiency of combined license whether the SNF could be stored at licensing of a geologic disposal facility.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81039 beyond the expiration of reactor concluded that experience and October 22, 2008). Requests for hearing operating licenses, no significant developments since 1990 had confirmed were received from 12 parties and 2 environmental impacts will result from the findings and made a comprehensive interested governmental entities; these the storage of spent fuel in reactor reevaluation of the findings requests included 318 contentions to the facility storage pools or ISFSIs located at unnecessary. It also stated that it would application.2 The Construction reactor or away-from-reactor sites and consider undertaking a reevaluation Authorization Boards granted 10 of that the Commission had reasonable when the pending repository these petitions to intervene and assurance that a permanent disposal development and regulatory activities admitted all but 17 of the 318 facility would be available by 2007- had run their course or if significant and contentions (ADAMS Accession 2009. pertinent unexpected events occurred Number ML091310479).

The Commission conducted a review that raise substantial doubt about the On January 29, 2010, President of its findings in 1989-1990, which continuing validity of the Waste Obama directed the Secretary of Energy resulted in the revision of Findings 2 Confidence Findings (64 FR 68005; to create a Blue Ribbon Commission on and 4 to reflect revised expectations for December 6, 1999). The Commission has Americas Nuclear Future to evaluate the date of availability of the first not found that the criteria put forth in options for the back-end of the nuclear repository, and to clarify that the 1999 for reevaluating its findings have fuel cycle. See Presidential expiration of a reactors operating been met. But because the Commission MemorandumBlue Ribbon license referred to the full 40-year initial is now preparing to conduct a Commission on Americas Nuclear license for operation, as well as any significant number of proceedings on Future (January 29, 2009), available at additional term of a revised or renewed combined license (COL) applications for http://www.whitehouse.gov/the-press-license: new reactors, and the issue of waste office/presidential-memorandum-blue-(2) The Commission finds reasonable confidence has been raised in some of ribbon-commission-americas-nuclear-assurance that at least one mined geologic those proceedings and may be raised in future.

repository will be available within the first others, it is prudent to take a fresh look In the YM proceeding, DOE filed a quarter of the twenty-first century, and at the NRCs Waste Confidence Findings Motion to Stay the Proceeding, on sufficient repository capacity will be now, before completing the agencys February 1, 2010, which stated that the available within 30 years beyond the licensed review of new reactor license President, in the proposed budget for life for operation (which may include the applications. fiscal year 2011, directed that the term of a revised or renewed license) of any On February 14, 2002, the Secretary of Department of Energy discontinue its reactor to dispose of the commercial HLW application to the U.S. Nuclear and SNF originating in such reactor and Energy recommended the Yucca generated up to that time; Mountain (YM) site for the development Regulatory Commission for a license to (4) The Commission finds reasonable of a repository to the President thereby construct a high-level waste geologic assurance that, if necessary, spent fuel setting in motion the approval process repository at Yucca Mountain in 2010 generated in any reactor can be stored safely set forth in sections 114 and 115 of the * * * (ADAMS Accession Number and without significant environmental Nuclear Waste Policy Act, as amended ML100321641 at 1). The Motion also impacts for at least 30 years beyond the (NWPA). See 42 U.S.C. 10134(a)(1); stated that the proposed budget licensed life for operation (which may 10134(a)(2); 10135(b), 10136(b)(2) indicated that all DOE funding for YM include the term of a revised or renewed (2006). On February 15, 2002, the would be eliminated in 2011. Id.

license) of that reactor at its spent fuel storage basin, or at either onsite or offsite President recommended the site to Therefore, DOE stated its intent to ISFSIs. Congress. On April 8, 2002, the State of withdraw the license application by (55 FR 38474; September 18, 1990) Nevada submitted a notice of March 3, 2010, and requested a stay of The Commission similarly amended disapproval of the site recommendation. the proceeding to avoid unnecessary Congress responded on July 9, 2002, by expenditure of resources by the Board the generic determination in 10 CFR passing a joint resolution approving the and parties. See Id. at 2. Construction 51.23(a):

development of a repository at YM, Authorization Board 4 granted a stay of The Commission has made a generic which the President signed on July 23, the proceeding on February 16, 2010 determination that, if necessary, spent fuel 2002. See Public Law 107-200, 116 Stat. (ADAMS Accession Number generated in any reactor can be stored safely and without significant environmental 735 (2002) (codified at 42 U.S.C. 10135 ML100470423).

impacts for at least 30 years beyond the note (Supp. IV 2004)). On February 19, 2010, Aiken County, licensed life for operation (which may On June 3, 2008, the Department of South Carolina filed an action in the include the term of a revised or renewed Energy (DOE) submitted the Yucca U.S. Court of Appeals for the District of license) of that reactor at its spent fuel Mountain Repository License Columbia Circuit, challenging DOEs storage basin or at either onsite or offsite Application, seeking NRCs decision to seek withdrawal of the

[ISFSIs]. Further, the Commission believes authorization to begin construction of a license application. Similar lawsuits there is reasonable assurance that at least one permanent HLW repository at YM. U.S. filed by three individuals living near mined geologic repository will be available Department of Energy, License within the first quarter of the twenty-first Hanford, Washington (the Ferguson century, and sufficient repository capacity Application for a High-Level Waste Petitioners), the State of South Carolina, will be available within 30 years beyond the Geologic Repository at Yucca Mountain and the State of Washington were licensed life for operation of any reactor to (2008), available at http://www.nrc.gov/ consolidated into one proceeding now dispose of the commercial [HLW and SNF] waste/hlw-disposal/yucca-lic-app.html. before the District of Columbia Circuit.

originating in such reactor and generated up On September 8, 2008, the NRC staff See In re Aiken County, No. 10-1050 to that time. (55 FR 38472; September 18, found that the application contained (and consolidated cases) (DC Cir.).

mstockstill on DSKH9S0YB1PROD with RULES2 1990) sufficient information for the staff to This generic determination is applied begin its detailed technical review, and 2 ADAMS Accession Numbers ML083540096, in licensing proceedings conducted docketed the application (73 FR 53284; ML083540230, ML083550015, ML083570102, under 10 CFR parts 50, 52, 54, and 72. September 15, 2008). On October 17, ML083570371, ML083570416, ML083570731, ML083570732, ML083570741, ML083570761, See 10 CFR 51.23(b) (2010). 2008, the Commission issued a Notice ML083570773, ML083570775, ML083570779, In 1999, the Commission reviewed its of Hearing and Opportunity to Petition ML083570788, ML083570789, ML083590091, Waste Confidence Findings and for Leave to Intervene (73 FR 63029; ML090050465, ML083540836.

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81040 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations On March 3, 2010, DOE filed with the technical analysis will go well beyond organizations; the nuclear industry; NRC a Motion to withdraw its license the time frame of existing requirements. States, local governments, an Indian application with prejudice (ADAMS Even though the Commission has not Tribe, and inter-governmental Accession Number ML100621397). On determined whether this particular organizations; and individuals.

June 29, 2010, Construction analysis will result in a different Comments from the 158 letters, Authorization Board 4 issued a conclusion concerning the including a late supplemental letter Memorandum and Order (Granting environmental impacts of extended from the Attorney General of New York, Intervention to Petitioners and Denying spent fuel storage, the Commission have been categorized and grouped Withdrawal Motion), LBP-10-11, ll believes that this unprecedented long- under 8 issues for purposes of this NRC ll, denying DOEs motion to term review should be accompanied by discussion. The issues include withdraw as outside its authority under an EIS. Preparing an EIS will ensure that comments made in two form letters the NWPA (ADAMS Accession Number the agency considers these longer-term received from 1,990 and 941 ML101800299). The Secretary of the storage issues from an appropriate commenters, respectively.

Commission invited briefs from all the perspective. The Commission has therefore decided to exercise its Issue 1: Compliance of the Waste parties in the YM proceeding on Confidence Decision With the National whether to review and whether to discretionary authority under 10 CFR 51.20(a)(2) and is directing the staff to Environmental Policy Act (NEPA) uphold or reverse the Boards decision.

The Commission has not yet acted on prepare a draft EIS to accompany the Comment 1: A large number of these questions. proposed rule developed as a result of commenters stated that the NRC has not this longer-term analysis. The updates complied with NEPA in issuing its Although the proposed updates to the proposed revisions to the Waste Waste Confidence Decision and Rule to the Waste Confidence Decision in this document and the final rule published Confidence Decision and to its generic did not consider some of these recent determination in 10 CFR 51.23(a) developments, the Commission has in this issue of the Federal Register rely on the best information currently because they believe that the revisions assumed, for the purposes of these need to be supported by a Generic updates, that YM would not be built. available to the Commission and therefore are separate from this long- Environmental Impact Statement (GEIS).

Even so, the new YM developments are The National Resources Defense Council pertinent. The Commission believes that term initiative. The updates to the Waste Confidence Decision and Rule are (NRDC) argues that these two agency the updates to the Waste Confidence actions are, in effect, generic licensing Decision and Rule reflect the not dependent upon the staff completing any action outside the scope decisions that allow for the production uncertainty regarding the timing of the of additional spent reactor fuel and availability of a geologic repository for of these revisions to the Waste Confidence Decision and Rule. other radioactive wastes associated with SNF and HLW. The Commission, as a the uranium fuel cycleessentially in Based upon the technical and separate action, has directed the staff to perpetuity. Thus, these generic environmental analysis contained in develop a plan for a longer-term licensing decisions, in NRDCs view, this document, and discussed at length rulemaking and Environmental Impact must be accompanied by a [GEIS] that below, the Commission has prepared Statement (EIS) to assess the fully assesses the environmental this update of the Waste Confidence environmental impacts and safety of impacts of the entire uranium fuel cycle, Decision and now makes the following long-term SNF and HLW storage beyond including health and environmental revisions to Findings 2 and 4:

120 years (SRM-SECY-09-0090; impacts and costs, and that examines a ADAMS Accession Number (2) The Commission finds reasonable assurance that sufficient mined geologic reasonable array of alternatives, ML102580229). This analysis will go including the alternative of not repository capacity will be available to well beyond the current analysis that dispose of the commercial high-level producing any additional radioactive supports at least 60 years of post- radioactive waste and spent nuclear fuel waste.

licensed life storage with eventual generated by any reactor when necessary. Texans for a Sound Energy Policy disposal in a deep geologic repository. (4) The Commission finds reasonable (TSEP) stated that the NRC has relied The Commission believes that a more assurance that, if necessary, spent fuel on the Waste Confidence Decision to expansive analysis is appropriate generated in any reactor can be stored safely license and re-license many nuclear because it will provide additional and without significant environmental power plants, and therefore it impacts for at least 60 years beyond the information (beyond the reasonable licensed life for operation (which may constitutes a major federal action assurance the Commission is include the term of a revised or renewed significantly affecting the environment, recognizing in the current rulemaking) license) of that reactor in a combination of requiring preparation of an EIS.

on whether spent fuel can be safely storage in its spent fuel storage basin and The Attorney General of New York stored for a longer time, if necessary. either onsite or offsite ISFSIs. argued that the NRC should require and This analysis could reduce the The update to the Waste Confidence perform a site-specific evaluation of frequency with which the Commission Decision restates and supplements the environmental impacts of spent fuel must, as a practical matter, consider bases for the earlier findings and storage at each reactor location, taking waste storage capabilities. The staffs addresses the public comments received into account environmental factors new review will require an analysis and, on the proposed revisions to the including surrounding population to some extent, a forecast of the safety findings. density, water resources, seismicity, and environmental impacts of storage The Commission is also concurrently subsurface geology, and topography for extended periods of time beyond publishing in this issue of the Federal along with the design, construction, and mstockstill on DSKH9S0YB1PROD with RULES2 that currently recognized in 10 CFR Register a final rule revising 10 CFR operating experience of the spent fuel 51.23 and the Waste Confidence 51.23(a) to conform to the revisions of pool in question and the layout of the Decision. While storage of spent fuel for Findings 2 and 4. fuel assemblies in that pool. The 60 years beyond licensed life has been Attorney General believes that these shown through experience or analyses Responses to Public Comments new factual conclusions also provide to be safe and not to have a significant The NRC received comments from compelling evidence to support * *

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81041 proceedings, such as the ongoing storage of SNF and HLW.3 See SRM- or the issuance of an initial license for proceeding for the Indian Point power SECY-09-0090; ADAMS Accession storage of spent fuel at an ISFSI, or any reactors, of any properly presented Number ML102580229. amendment thereto (emphasis added).

environmental and safety contention The revised generic determination is In short, the environmental analysis, focused on the adequacy of mitigation not a generic licensing decisionit which is done as part of the licensing or measures taken or to be taken at that site generically deals with one aspect of license renewals of individual NPPs, as to address the safety and environmental licensing decisions that have yet to be well as the initial licensing of an ISFSI, impacts flowing from the 20 additional made. It does not authorize the does consider the potential years of spent fuel storage at the reactor operation of a NPP, the renewal of a environmental impacts of storage of site, the increased volume of spent fuel license of a NPP, or the production of spent fuel during the term of the license.

created during those 20 years, and the spent fuel by a NPP. NPPs and renewals What is not considered in those indefinite storage at that reactor site of of operating licenses are licensed in proceedingsdue to the generic all the waste generated by that reactor. individual licensing proceedings. The determination in 10 CFR 51.23(a)is Finally a form letter, used by many NRC must prepare a site-specific EIS in the potential environmental impact of commenters, asserts it is appropriate connection with any type of application storage of spent fuel for a 60-year period that any major Federal action on to construct and operate a NPP. See 10 after the end of licensed operations or radioactive waste (such as changing the CFR 51.20(b). For operating license the potential environmental impacts of Waste Confidence Decision) be renewals, the NRC may rely on NRCs ultimate disposal. Environmental considered in a generic (programmatic) GEIS for License Renewal of Nuclear analysis for this period is covered by the NEPA proceeding that includes all Plants, NUREG-1437, May 1996, for environmental analysis the NRC has aspects of the nuclear fuel chain. issues that are common to all plants and done in this update to the Waste must also prepare a Supplemental EIS Confidence Decision, particularly under NRC Response: In considering the that evaluates site-specific issues not Findings 3, 4, and 5. This analysis NRCs compliance with NEPA in discussed in the GEIS or new and enables the Commission to generically revising its Waste Confidence Decision significant information regarding issues resolve this issue because it and Rule, it is important to keep in that are discussed in the GEIS.4 See 10 demonstrates that spent fuel can be mind the limited scope of these CFR part 51, subpart A, appendix B. safely stored and managed under a 10 revisions. The NRC is amending its Both types of licensing proceedings CFR part 50 or 10 CFR part 72 license generic determination of no significant are supported by both generic and after the cessation of reactor operations environmental impact from the specific EISs. The generic determination for at least a 60-year period. Further, if temporary storage of spent fuel after in § 51.23(a) does play a role in the it becomes clear that a repository will cessation of reactor operation contained environmental analyses of the licensing not be available by the expiration of the in 10 CFR 51.23(a) to conform it to the and license renewal of individual NPPs; 60-year post licensed life period, the Commissions revised Findings 2 and 4 it excuses applicants for those licenses Commission will revisit the Waste of the Waste Confidence Decision. and the NRC from conducting an Confidence Decision and Rule early In revised Finding 4, the Commission additional site-specific environmental enough to ensure that it continues to finds reasonable assurance that, if analysis only within the scope of the have reasonable assurance of the safe necessary, spent fuel generated in any generic determination in 10 CFR storage without significant reactor can be stored safely and without 51.23(a). Thus, 10 CFR 51.23(b) environmental impacts of the SNF and significant environmental impacts for at provides: HLW.

least 60 years (rather than 30 years, as Accordingly, * *

• within the scope of the In addition, the NRCs Waste in the present finding) beyond the generic determination in paragraph (a) of this Confidence Decision and Rule do not licensed life for operation (which may section, no discussion of any environmental pre-approve any particular waste storage include the term of a revised or renewed impact of spent fuel storage in reactor facility or disposal site technologyalthough license) of that reactor in a combination storage pools or [ISFSIs] for the period the Decision does evaluate the technical of storage in its spent fuel storage basin following the term of the reactor operating feasibility of deep geologic disposal license or amendment, reactor combined nor do they require that a specific cask and either onsite or offsite ISFSIs. The license or amendment, or initial ISFSI license revised generic determination in 10 CFR design be used for storage. Individual or amendment for which application is made, 51.23(a) is dependent upon the is required in any environmental report, licensees and applicants, or in the case environmental analysis supporting [EIS], [EA], or other analysis prepared in of a HLW repository, DOE, will have to revised Finding 4. connection with the issuance or amendment apply for and meet all of the NRCs of an operating license for a [NPP] under safety and environmental requirements The revision also incorporates the parts 50 and 54 of this chapter, or issuance before the NRC will issue a license for Commissions supporting analysis for or amendment of a combined license for a storage or disposal.

revised Finding 2, which looks at the [NPP] under parts 52 and 54 of this chapter, The NRC must prepare an EIS when time necessary to develop a repository the proposed action is a major Federal (about 25-35 years) and concludes that 3 This reflects the Commissions confidence that action significantly affecting the quality reasonable assurance exists that a repository will be made available before the of the human environment or when the sufficient mined geologic repository storage of the SNF and HLW becomes unsafe or would result in significant environmental impacts. proposed action involves a matter that capacity will be available when Finding 2 also reflects the Commissions belief that the Commission, in the exercise of its necessary to dispose of the commercial it cannot have confidence in a target date because discretion, has determined should be HLW and SNF originating in such it cannot predict when the societal and political covered by an EIS. 10 CFR 51.20(a). The mstockstill on DSKH9S0YB1PROD with RULES2 reactor and generated up to that time. obstacles to a successful repository program will be overcome. Once those obstacles are overcome, the NRCs rulemaking action here is to As the Commission indicated in its Staff Commission has confidence that a repository can be incorporate a revised generic Requirements Memorandum (SRM) sited, licensed, and constructed within 25-35 years. determination into 10 CFR 51.23(a),

approving publication of this Decision 4 The Commission issued a proposed rule which expands from at least 30 years to and the final rule, the changes to updating the 1996 GEIS on July 31, 2009 (74 FR 38117) for a 75-day public comment period; the at least 60 years after licensed life the Finding 2 do not mean that the staff is currently preparing responses to the public period during which the Commission Commission has endorsed indefinite comments. has confidence that spent fuel can be VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81042 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations safely stored without significant environmental impacts after the can be so stored for long periods of time, environmental impacts and to state its licensed life for operation of the reactor; safely and without significant environmental confidence that a permanent repository the amendment also captures the impact. Such a finding would be made on the basis of the Commissions accumulated will be available when necessary. As the revisions to Finding 2 in the Waste experience of the safety of long-term spent Commission explained in 1984 and Confidence Decision that deep geologic fuel storage with no significant 1990, this final rulemaking action disposal capacity will be available when environmental impact (see Finding 4) and its formally incorporating the revised necessary. This is the action described accumulated experience of the safe generic determination in the in the NRCs proposed FONSI (See 73 management of spent fuel storage during and Commissions regulations does not have FR 59550; October 9, 2008). after the expiration of the reactor operating separate independent environmental The formal incorporation of revised license (see Finding 3). Id.

impacts (49 FR 34693; August 31, 1984, Findings 2 and 4 into 10 CFR 51.23(a) The Commission explicitly sought 55 FR 38473; September 18, 1990). The has no separate independent public comment on whether any environmental analysis that the revised environmental impact from the additional information would be needed generic determination is based on is revisions of Findings 2 and 4. The to make this change. The update to the found in this update to the Waste update and revision of the Waste Waste Confidence Decision shows that Confidence Decision, which serves as Confidence Decision is the EA there would be no difference between the Environmental Assessment (EA) for supporting the action and the basis for the environmental impacts of the the rule. the FONSI and, as evidenced by the proposed action of extending the time The updates to the Waste Confidence breadth of comments received, the period for safe storage of SNF by 30 Decision and Rule, as explained above, findings of the Waste Confidence years and the no-action alternative of do not authorize any licensing or other Decision have been made available for leaving it as it is. The Commission also Federal action. The rule does have the public review and comment. The update stated in its proposed update and rule effect of removing from a reactor was undertaken, as a matter of that the environmental impacts of the operating license proceeding, license discretion, to ensure the currency of the alternative of indefinite storage may be renewal proceeding, or initial ISFSI Waste Confidence Findings, which have the same, but found no need to make licensing proceeding the issue of not been changed in nearly 20 years. this prediction due to its expectation whether safe storage of SNF can be The NRCs procedural requirements that a repository will be available within accomplished without any significant for an EA call for a brief discussion of 50-60 years of the end of any reactors environmental impact for an additional the need for the proposed action, license for the disposal of its spent fuel.

30 years beyond the 30 years provided alternatives to that action, and the The Commission has, however, now by the current generic determination. environmental impacts of the proposed reconsidered its position regarding the The update to the Waste Confidence action and alternatives as well as a list use of the 50-60 year target date: The Decision explains and documents the of agencies and persons consulted and Commission has confidence that spent Commissions continued reasonable identification of the sources used. See fuel can be safely stored without assurance that this extended storage 10 CFR 51.30(a). The Commissions significant environmental impact for period will have no significant proposal explained that the need for an long periods of time as described in its environmental impacts. Given this update of the 1990 Waste Confidence discussion of Findings 3, 4, and 5. But conclusion, a finding of no significant Decision was prompted by a desire to there are issues beyond the environmental impact (FONSI) may be make anticipated licensing proceedings Commissions control, including the made and preparation of an EIS is not for new reactors more efficient by political and societal challenges of required. resolving any concerns that the generic siting a HLW repository, that make it Comment 2: A number of commenters determination was out of date and could premature to predict a precise date or asserted that the NRC, in making its not be relied upon in these licensing time frame when a repository will FONSI, has not complied with its proceedings (See 73 FR 59553, 59558; become available.5 The Commission has procedural requirements for a FONSI: October 9, 2008). The Commissions therefore decided not to adopt a specific 10 CFR 51.32, or with the requirements proposed rule also explicitly raised the time frame in Finding 2 or its final rule.

of the Council on Environmental Instead, the Commission is expressing question, in the context of revising Quality: 40 CFR 1508.13. In particular, its reasonable assurance that a Finding 2, whether it should remove a some commenters claim that the NRC repository will be available when target date from Finding 2 and make a has not published an EA, as required by necessary.

general finding of reasonable assurance 10 CFR 51.32, and has not identified all The Commission believes that this that SNF generated in any reactor can be the documents that the FONSI is based standard accurately reflects its position, stored safely and without significant on. TSEP asserts that the NRCs alleged as discussed in the analysis supporting environmental impacts until a disposal failure to comply with its procedural Finding 2, that a repository can be facility can reasonably be expected to be requirements for a FONSI also results in constructed within 25-35 years of a available (See 73 FR 59561-59562; a violation of the Administrative Federal decision (e.g., congressional Procedure Act because it means the October 9, 2008).

The Commission explained what the action or executive order) to start a new public has not had an opportunity to repository program. The Commission basis of this alternative finding would comment on the basis for the FONSI. continues to have confidence, as NRC Response: As explained in be:

expressed in Findings 3 and 5, that safe response to Comment 1, the only In other words, in response to the courts and sufficient onsite or offsite storage Federal action involved in this concerns that precipitated the original Waste mstockstill on DSKH9S0YB1PROD with RULES2 capacity is and will be available until rulemaking is the amendment of 10 CFR Confidence proceeding, the Commission could now say that there is no need to be the waste is sent to a repository for 51.23(a). This amendment adopts the disposal. In addition, revised Finding 4 concerned about the possibility that spent expansion, by 30 years, of the fuel may need to be stored at onsite or offsite supports safe onsite or offsite storage Commissions Finding 4 in its 1990 storage facilities at the expiration of the without significant environmental Waste Confidence Decision that spent license (including a renewed license) until fuel generated in any reactor can be such time as a repository is available because 5 These political and societal issues are discussed stored safely and without significant we have reasonable assurance that spent fuel in the analysis of Finding 2 in this document.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81043 impacts for at least 60 years beyond the Although these documents cannot be Confidence finding, that a suitable end of the licensed life for operation of released to the public, redacted or bedded-salt repository site or its any nuclear power reactor. Given that publicly available summaries are equivalent will be found. The long period of time, the current Blue- available: A redacted version of the commenters also note that the Ribbon Commission studying options Sandia study can be found in ADAMS Commission, in 1990, indicated that it for handling SNF, the Commissions at (ADAMS Accession Number would find it necessary to review the direction to the NRC staff to consider ML062290362) and the unclassified Table S-3 Rule if it found, in a future whether it is feasible to expand the 60- summary of the NAS report can be review of the Waste Confidence year period for safe storage, and a purchased or downloaded for free by Decision, that its confidence in the continued Federal obligation to site and accessing the NAS Web site at: http:// technical feasibility of disposal in a build a repository under the Nuclear www.nap.edu/catalog.php?record_id= mined geologic repository had been lost Waste Policy Act, the Commission has 11263. No other non-public documents (55 FR 38491; September 18, 1990). The reasonable assurance that disposal are referenced in the Waste Confidence commenters believe that the capacity will become available when Decision. Commission lacks a basis for continued necessary and that there will be In sum, the NRCs FONSI identifies confidence in the technical feasibility of sufficient safe and environmentally the proposed action and relies upon an safe geologic disposal and that the sound storage for all of the spent EA that explains at considerable length relationship of the Table S-3 rule to the nuclear fuel until disposal capacity the reasons why this action will not Waste Confidence Decision is such that becomes available. have a significant effect on the quality a GEIS to review the Table S-3 Rule is Further, the Commission has decided of the human environment and a necessary prerequisite to a revision of not to endorse the concept of indefinite describes the documents relied upon the Waste Confidence Findings.

storage that was discussed with the and how these documents may be NRC Response: The Waste Confidence alternative Finding 2 in the proposed accessed by the public. Decision does not rely on findings made rule (73 FR 59561-59562; October 9, Comment 3: A number of commenters in the context of the Table S-3 Rule.

2008). The Commission has determined asserted that the NRC has failed to Even in 1984, the Commissions that it is not necessary to endorse comply with NEPA because the NRC confidence that a suitable geologic site indefinite storage if there is no target has not prepared a GEIS to review and for a repository would be found was not date for a repository because the update Table S-3 of 10 CFR 51.51(b). premised on the expectation that a Commission has confidence that either Table S-3 lists environmental data to be bedded-salt site would be located, but a repository will be available before the used by applicants and the NRC staff as rather on the fact that DOEs site expiration of the 60 years post-licensed the basis for evaluating the exploration efforts were providing life discussed in Finding 4 or that the environmental effects of the portions of information on site characteristics at a Waste Confidence Decision and Rule the fuel cycle that occur before new fuel sufficiently large number and variety of will be updated and revised if the is delivered to the plant and after spent sites and geologic media to support the expiration of the 60-year period fuel is removed from the plant site for expectation that one or more technically approaches without an ultimate light-water reactors. Table S-3 was acceptable sites will be identified. (49 disposal solution for the HLW and SNF. incorporated into the NRCs regulations FR 34668; August 31, 1984). Similarly, With respect to the claim that the in 1979 and includes an assumption, the issue of concern to the NRC in NRC must make the documents on based on NRC staffs analysis of disposal considering waste confidence has not which its FONSI relies available to the in a bedded-salt geologic repository, that been whether a zero-release assumption public, the commenters are correct that after a repository is sealed there would will be met, but rather when the NRC must disclose all portions of be no further release of radioactive Environmental Protection Agency (EPA) the documents that informed its NEPA materials to the environment (the zero would issue standards ensuring that any analysis and that are not exempt from release assumption). The 1979 releases of radioactive materials to the public disclosure under the Freedom of rulemaking also included an environment would not be inimical to Information Act (FOIA). The expectation that a suitable bedded-salt public health and safety (See 55 FR Commission acknowledged this fact repository site or its equivalent will be 38500; September 18, 1990).

when, in Pacific Gas and Electric Co. found (44 FR 45362 and 45368; August In 1990, the Commission discussed (Diablo Canyon Power Plant 2, 1979). the relationship of the Table S-3 Independent Spent Fuel Storage The commenters stated that the NRCs rulemaking with the Waste Confidence Installation), CLI-08-01, 67 NRC 1 proposed revisions to the Waste proceeding (See 55 FR 38490-38491; (2008), it directed the NRC staff to Confidence Decision acknowledge that September 18, 1990). The Commission prepare a complete list of the salt formations are now only being noted that the Table S-3 proceeding was documents on which it relied in considered as hosts for reprocessed the outgrowth of efforts to generically preparing its EA. nuclear materials because heat- address the NEPA requirement for an In the case of the update to the Waste generating waste, like SNF, exacerbates evaluation of the environmental impacts Confidence Decision, the NRC has a process by which salt can rapidly of operation of a light water reactor complied with this standardall of the deform (See 73 FR 59555; October 9, (LWR), that Table S-3 assigned documents relied upon in preparing the 2008). For this and other reasons, the numerical values for environmental update to the Waste Confidence commenters believe that Table S-3 has costs resulting from uranium fuel cycle Decision and Rule are referenced. Two been undermined and is out of date and activities to support one year of LWR of the referenced documents are not needs to be reviewed in a GEIS. NRDC operation, and that the Waste mstockstill on DSKH9S0YB1PROD with RULES2 publicly available: reports concerning also believes that the Table S-3 Rules Confidence proceeding was not the safety and security of spent fuel pool finding of no significant health impacts intended to make quantitative storage issued by Sandia National fundamentally supports the Waste judgments about the environmental Laboratories and the National Academy Confidence Decision because its costs of waste disposal. The of Sciences (NAS), which are Classified, estimate of zero radioactive releases Commission stated that unless, in a Safeguards Information, or Official Use from a repository is based on the future review of the Waste Confidence OnlySecurity Related Information. Commissions then-current Waste decision, [it] finds that it no longer has VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81044 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations confidence in the technical feasibility of Commission has not made a generic NRC Response: Riverkeeper is correct disposal in a mined geologic repository, determination regarding environmental that the NRC concluded in 1984 that the Commission will not consider it and safety issues presented by indefinite Finding 4that SNF could be safely necessary to review the S-3 rule when storage of spent fuel at the site of stored without significant it reexamines its Waste Confidence nuclear reactors following shutdown. environmental impacts for at least 30 Findings in the future (55 FR 38491; NRC Response: Under 10 CFR years beyond the expiration of the September 18, 1990). The Commission 51.23(b), the NRC does not need to reactors operating licensedid not continues to have confidence in the prepare a site-specific EA or EIS during require the support of an EIS (See 49 FR technical feasibility of disposal in a individual NPP licensing that discusses 34666; August 31, 1984). This does not mined geologic repository (see NRC the environmental impacts of spent fuel mean that this finding was made Response to Comment 8 and the storage for the period following the term without performing the required discussion of Finding 1 later in this of the reactor license or initial ISFSI environmental review under NEPA. The document) so there is no need to review license because of the generic Commission explained that the Waste the S-3 rule to support its Waste determination the Commission has Confidence Decision itself considered Confidence Findings.6 This does not made in 10 CFR 51.23(a) that spent fuel the environmental aspects of spent fuel preclude the NRC from taking future can be stored safely and without storage and did comply with NEPA. Id.

regulatory action to amend Table S-3 if significant environmental impacts for at No EIS was conducted because the doing so appears to be necessary or least 60 years beyond the licensed life fourth finding concluded that the desirable. In 2008, the Commission of the reactor. The generic environmental impacts from extended stated that [t]he NRC will continue to determination is based on the storage of SNF are so insignificant as not evaluate, as part of its annual review of environmental analysis conducted in to require consideration in an EIS. The potential rulemaking activity, the need the Waste Confidence Decision. NRC has explained in its response to to amend Table S-3. New England However, the commenter is not correct Comment 1 why an EIS is unnecessary Coalition on Nuclear Pollution; Denial that this means that an EA or EIS for a to support the expansion of its generic of Petition for Rulemaking (73 FR reactor or an ISFSI may never need to determination.

14946, 14949; March 20, 2008). be supplemented even if there is a Comment 4: The Attorney General of significant change in circumstances or Issue 2: Compliance of the Waste California believes that the Waste significant new information that Confidence Decision With the Atomic Confidence Decision violates core demonstrates that the application of the Energy Act (AEA) principles of NEPA and the NRCs generic determination would not serve Comment 6: Several commenters regulations because it does not allow for the purposes for which it was adopted. asserted that the updates to the Waste supplementation of an EIS for an ISFSI Under 10 CFR 51.20(a)(2), the Confidence Decision and Rule do not even when there is significant change in Commission, in its discretion, may comply with the AEA. They stated that the circumstances under which a project determine that a proposed action that the AEA precludes NRC from is carried out or when there is involves a matter that should be covered licensing any new NPP or renewing the significant new information regarding by an EIS. Further, 10 CFR 2.335(b) license of any existing NPP if it would the environmental impacts of the provides that a party to an adjudicatory be inimical * *

• to the health and project. See 10 CFR 51.92(a). He asserts proceeding may petition for the waiver safety of the public. 42 U.S.C. 2133(d) that NRC has not shown a clearly of the application of the rule or for an (2006). They note that the Commission articulated justification, based on exception for that particular proceeding. continues to state that it would not substantial evidence in the record, for The sole grounds for a petition for continue to license reactors if it did not the proposed extension of this waiver or exception is that special have reasonable confidence that the presumption that no change in circumstances with respect to the wastes can and will in due course be circumstance, and no new information, subject matter of the particular disposed of safely. These commenters can ever trigger the NEPA duty to proceeding exist so that the application assert that Finding 1 effectively supplement the environmental analysis of the rule would not serve the purposes constitutes a licensing determination of the long-term onsite storage of for which it was adopted. that spent fuel disposal risks are not nuclear waste. The Attorney General More fundamentally, as the inimical to public health and safety, and also believes that the proposed update Commission clarified in its SRM that Findings 3, 4, and 5 effectively to the Waste Confidence Decision authorizing publication of this decision constitute a licensing determination that allows NPPs to be substantially re- and final rule in the Federal Register, spent fuel storage risks are not inimical purposed and transformed into long- the changes to the Waste Confidence to public health and safety. Because the term storage facilities * *

• without Decision and Rule are not intended to commenters believe that the NRC has environmental review and that support indefinite storage. If the time presented no well-documented safety therefore supplementation of the initial frame for safe and environmentally findings supporting its findings, they EIS for the NPP may be warranted. sound storage included in Finding 4 contend that the NRCs revisions of its Similarly, the Attorney General of New approaches without the availability of findings are in violation of the AEA.

York, in a supplemental comment, sufficient repository capacity, the NRC Response: As explained in the argues that the Commissions proposed Commission will revisit the Waste response to Comment 1, the NRCs revision to Finding 2 (originally Confidence Decision and Rule. update to the Waste Confidence discussed in the Commissioners Comment 5: Riverkeeper asserts that Decision and Rule are not licensing September 2009 votes) endorses a policy the NRC made its finding of no decisions. They are not determinations mstockstill on DSKH9S0YB1PROD with RULES2 of indefinite storage and that the significant impact in its initial 1984 made as part of the licensing decision without performing an proceedings for NPPs or ISFSIs or the 6 As discussed below, Finding 1 deals with the environmental review pursuant to renewal of those licenses. They do not general technical feasibility of a repository and is NEPA, explicitly stating that an [EIS] authorize the storage of SNF in spent not dependent upon a specific site. Further, the Commission makes it clear in its discussion of was not necessary, and then has fuel pools or ISFSIs. The revised Finding 2 that the Findings assume that YM will continued to make this finding without findings and generic determination are not be used as a geologic repository. appropriate environmental review. conclusions of the Commissions VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81045 environmental analyses, under NEPA, of the beyond a reasonable doubt of HLW and SNF in a mined geologic the foreseeable environmental impacts standard used in the criminal law. repository is technically feasible. In stemming from the storage of SNF after North Anna Environmental Coalition v. support of its view, TSEP provides the the end of reactor operation. NRC, 533 F.2d 655, 667 (DC Cir. 1976) comments of the Institute for Energy As long ago as 1978, the U.S. Court of (North Anna).7 It is more akin to a clear and Environmental Research (IEER) by Appeals for the Second Circuit preponderance of the evidence Dr. Arjun Makhijani. IEER stated that considered the question whether NRC, standard, and what constitutes the Waste Confidence Decision prior to granting nuclear power reactor reasonable assurance depends on the presents a safety finding, under the operating licenses, is required by the particular circumstances of the issue Atomic Energy Act, that the NRC has public health and safety requirement of being examined. In a 2009 decision reasonable assurance that disposal of the AEA to make a determination * *

• affirming the license renewal of the spent fuel will not pose an undue risk that high-level radioactive wastes can be Oyster Creek NPP, the Commission to public health and safety. It does so permanently disposed of safely. explained: Reasonable assurance is not via the finding that disposal is Natural Resources Defense Council v. quantified as equivalent to a 95% (or technically feasible and can be done in NRC, 582 F. 2d 166, 170 (1978) any other percent) confidence level, but conformity with the assumption of zero (emphasis in original). The court found is based on sound technical judgment of releases in Table S-3 * * *. IEER that the NRC was not required to make the particulars of a case and on believes that the NRC has failed to a finding under the AEA that SNF could compliance with our regulations address available information, which be disposed of safely at the time a * * * . In re Amergen Energy Co. shows that the NRC currently does not reactor license was issued, but that it (License Renewal for Oyster Creek have an adequate technical basis for a was appropriate for the Commission to Nuclear Generating Station), CLI-09-07, reasonable level of confidence that make this finding in considering a 69 NRC 235 (April 1, 2009). spent fuel can be isolated in a geologic license application for a geologic Thus, the Commissions reasonable repository.

repository. Similarly, the U.S. Court of assurance that, if necessary, spent fuel IEER defines safe disposal as Appeals for the District of Columbia generated in any reactor can be stored involving (i) the safety of building the Circuit did not vacate amendments to safely without significant environmental repository, putting the waste in it, and NPP operating licenses permitting the impacts for at least 60 years beyond the backfilling and sealing it, and (ii) the reracking of spent fuel storage pools licensed life for operation of that reactor performance relative to health and because it was concerned about the is based on a clear preponderance of the availability of storage or disposal environmental protection standards for technical and scientific evidence facilities at the end of licensed a long period after the repository is described in the discussion of Finding operation. State of Minnesota v. NRC, sealed * * *. [I]t is essential to show a

4. The Commissions reasonable 602 F. 2d 412 (DC Cir. 1979). Rather, reasonable basis for confidence that the assurance in Finding 2, that sufficient that court was concerned that the public and the environment far into the repository capacity will be available Commissions confidence in these future will be adequately protected from when necessary, is somewhat different; matters had not been subjected to public the effects of disposal at a specific site it does not include a specific date for scrutiny, so it directed the Commission and a specific engineered system built when a repository will be available and to conduct a rulemaking proceeding to there. Further, IEER believes that is supported by an analysis that assess its degree of confidence on these reasonable assurance requires a considers how long it may take to issues, leading to the original Waste statistically valid argument based on successfully complete the process to Confidence proceeding. real-world data that would show (i) that select a site, license, and build a The Commission will make the safety all the elements for a repository exist repository. This analysis is not purely finding with respect to SNF disposal and (ii) that they would work together scientific, and thus the evidence has envisioned by the commenters in the as designed, as estimated by validated more qualitative content than evidence context of a licensing proceeding for a models. The evidence must be sufficient considered for strictly scientific or geologic repository. The Commission to provide a reasonable basis to technical issues.

does make the safety findings with conclude that the durability of the respect to storage of SNF envisioned by Issue 4: Whether the Commission Has isolation arrangements would be the commenters in the context of an Adequate Basis for Reaffirming sufficient to meet health and licensing proceedings for NPPs and Finding 1 environmental standards for long ISFSIs for the terms of those licenses. Comment 8: TSEP believes that the periods of time * *

• with a high Commission lacks a sound basis for probability. IEER believes that the NRC Issue 3: What is the meaning of does not have the requisite reasonable reaffirming Finding 1: that there is reasonable assurance in the waste assurance because the NRC has not reasonable assurance that safe disposal confidence Findings? taken into account a mountain of data Comment 7: One commenter 7 In North Anna, the court considered whether and analysis derived from the YM expressed the view that the NRC should the Commissions reasonable assurance standard repository program and from the French continue to take a position of required an applicant for a NPP license to prove program at the Bure site, which beyond a reasonable doubt that an earthquake fault suspending the licensing of reactors if it under the proposed site was not capable. The court illustrate the problems these programs does not have confidence beyond a found that neither the AEA nor the pertinent have encountered and thus show, in reasonable doubt that wastes can and regulations required the Commission to find, under IEERs view, that it is far from assured will be disposed of safely. Another its reasonable assurance standard, that the site was that safe disposal of spent fuel in a mstockstill on DSKH9S0YB1PROD with RULES2 totally risk-free. See also Power Reactor commenter criticized the NRC for Development Co. v. International Union of geologic repository is technically fail[ing] to define the standard for Electrical, Radio and Machine Workers, 367 U.S. feasible. IEER also cites to the historical reasonable assurancewhat level of 396, 414 (1961), where the Supreme Court rejected difficulty the EPA has had in assurance that they found in making a claim that the Commissions finding of reasonable formulating radiation protection assurance needed to be based on compelling their determination90%, 51%, 5%. reasons when a construction permit for a reactor standards and notes that [w]ithout a NRC Response: The reasonable sited near a large population center was being final standard that is clear of court assurance standard is not equivalent to considered. challenges, performance assessment VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81046 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations must necessarily rest on guesses about evidence indicating that there are an alternative approach to Finding 2 (73 what it might be; this is not a basis on geologic media in the United States in FR 59550 and 73 FR 59561; March 20, which reasonable assurance of the many locations potentially suitable for a 2008). The Commission recognized that technical feasibility of safe disposal waste repository; that the chemical and its proposed revision of Finding 2, to can be given, for the simple reason that physical properties of HLW and SNF include a time frame for availability of there is no accepted definition of safe in can be sufficiently understood to permit repository capacity within 50-60 years relation to Yucca Mountain as yet. the design of a suitable waste package; beyond the licensed life for operation of NRC Response: IEER confuses the and that DOEs development work on all reactors, is based on its assessment safety finding that the NRC must make backfill materials and sealants provided not only of its understanding of the under the AEA when considering an a reasonable basis to expect that backfill technical issues involved, but also application for a license to construct materials and long-term seals can be predictions of the time needed to bring and operate a repository at an actual site developed. In 1990, the Commission about the necessary societal and with the Waste Confidence Findings noted that the NRC staff had not political acceptance for a repository site.

made under NEPA, including the identified any fundamental technical Recognizing the inherent difficulties finding that there is reasonable flaw or disqualifying factor for any of in making this prediction, the assurance that safe disposal of HLW and the nine sites DOE had identified as Commission outlined an alternative SNF is technically feasible. See potentially acceptable for a repository, approach wherein it would adopt a response to Comment 6. The NRC even though the HLW program was then more general finding of reasonable currently has before it DOEs focused exclusively on the YM site (55 assurance that SNF generated in any application for a construction FR 38486; September 18, 1990). reactor can be stored safely and without authorization at the YM site and, if the Similarly, the Commission found no significant environmental impacts until proceeding moves forward, will reason to abandon its confidence in the a disposal facility can reasonably be consider information submitted with technical feasibility of developing a expected to be available. This finding admitted contentions that may call into suitable waste package and engineered would be made on the basis of the question DOEs ability to safely dispose barriers, even though DOEs scientific Commissions accumulated experience of HLW and SNF at that site. However, programs were focused on Yucca of the safety of long-term spent fuel it is very important that the Commission Mountain (See 55 FR 38488-38490; storage with no significant preserve its adjudicatory impartiality September 18, 1990). Both the EPA and environmental impact (see Finding 4) and not consider ex parte the NRC have standards in place that and its accumulated experience of the communications of the type proffered would have to be met by either the safe management and storage of spent by IEER outside of the YM licensing proposed repository at YM or a fuel during and after the expiration of proceeding, and it has been careful not repository at any other site. See 40 CFR the reactor operating license (see to do so in the context of reviewing its parts 190 and 197 and 10 CFR parts 60 Finding 3). The Commission also asked Waste Confidence Decision. See 10 CFR and 63. whether additional information is 2.347. IEER does not assert that the need for needed for this approach or whether Websters Third New International a scientific or technical breakthrough accompanying changes should be made Dictionary (1993) defines feasible as stands in the way of establishing any to its other findings on the long-term capable of being done, executed, or possible repository; IEER believes that storage of spent fuel if this approach is effected: possible of realization. The the evidence it has offered shows that a adopted.

Commission began its discussion of repository at YM will not be capable of The State of Nevada (NV), Clark and Finding 1 in its original 1984 decision meeting the EPAs standards and the Eureka Counties in NV, and the Nuclear by stating that [t]he Commission finds NRCs performance objectives. This Energy Institute (NEI) provided that safe disposal of [HLW and SNF] is could turn out to be the case, but this comments supporting the alternative technically possible and that it is does not mean that safe disposal of approach to Finding 2. NV supports the achievable using existing technology HLW and SNF in some repository is not approach because it believes that (49 FR 34667; August 31, 1984) possible. specifying a time frame involves too (emphasis added). The Commission much speculation about public then went on to say: Although a Issue 5: Whether the Commission Has acceptance, future technology, a repository has not yet been constructed an Adequate Basis To Revise Finding 2 possible redirection of the waste and its safety and environmental Comment 9: Many commenters disposal program, adequate funding, acceptability demonstrated, no responded to the Commissions request and the outcome of the NRC licensing fundamental breakthrough in science or for comments on whether the proceedings. NV believes that whatever technology is needed to implement a Commission should revise Finding 2 to the NRCs period of safe storage might successful waste disposal program. Id. predict that repository capacity will be be, it is long enough for the Commission This focus on whether a fundamental available within 50-60 years beyond the to generally conclude that, even if breakthrough in science or technology is licensed life for operation of all reactors Yucca Mountain fails, one or more other needed has guided the Commissions or whether the Commission should repository sites (or some other form of consideration of the feasibility of the adopt a more general finding of disposition) would be available before disposal of HLW and SNF. reasonable assurance that SNF dry storage of reactor spent fuel * *

• The Commission identified three key generated in any reactor can be stored could pose any significant safety or technical problems that would need to safely and without significant environmental problem. Further, NV be solved: the selection of a suitable environmental impacts until a disposal suggested that if the Commission mstockstill on DSKH9S0YB1PROD with RULES2 geologic setting, the development of facility can reasonably be expected to be followed this approach, it could waste packages that can contain the available. dispense with Finding 2 altogether since waste until the fission product hazard is Specific Question for Public Finding 3 provides reasonable assurance greatly reduced, and engineered barriers Comment: In its proposed rule and its that HLW and SNF will be managed in that can effectively retard migration of proposed revisions to the Waste a safe manner until sufficient repository radionuclides out of the repository. Id. Confidence Decision, the Commission capacity is available. Clark and Eureka In 1984, the Commission reviewed explicitly requested public comment on Counties believe that focusing waste VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81047 confidence on management of SNF retention of a time frame, states that the approach is contrary to the NRCs long-allows for consideration of a more NRC should be concerned about the standing policy of [having] at least some systemic approach to waste possibility of indefinite storage of SNF minimal time limitation on the actions management that considers an array of because it undermines support for a of its licensees with respect to active options and takes into account evolving plan for disposal of nuclear waste, institutional controls at nuclear energy policy at the national and noting that approval of a new generation facilities, e.g., 10 CFR 61.59(b), which international level, technology of NPPs should be contingent on a prohibits reliance on institutional enhancements, and scientific research credible plan by which the Federal controls for more than 100 years by the that could lead to new approaches and Government meets its responsibilities. land owner or custodial agency of a low-alternatives. NEI stated that identifying The Attorneys General of New York, level waste disposal site.

the exact number of years involved is Vermont, and Massachusetts believe NRC Response: In 1990, the not necessary because, for whatever that NRC has admitted that its original Commission explained that it had not length of time is needed, the NRCs thirty-year time estimation was based on identified a date by which health and regulations will continue to provide a no scientific or technical facts, but safety reasons require that a repository high standard of safety in the storage of instead on the period of time in which must be available (55 FR 38504; spent nuclear fuel, and industry is it expected a repository to be available. September 18, 1990). The Commission compelled to comply with these * *

• The NRCs reasoningthat noted that in 1984 it had found under regulations. because no problems significant in Finding 3 that SNF would be safely Many comments from States, State NRCs eyes have [yet] occurred * * *, managed until sufficient repository organizations, one NV county, no problems will occur no matter how capacity is available, but that safe environmental groups and individuals long spent fuel remains on reactor management would not need to opposed the alternative approach and sitesis antithetical to science, the laws continue for more than 30 years beyond want the Commission to retain a time of time, and common sense. For the expiration of any reactors operating frame. These commenters believe that a example, over an indefinite period of license because sufficient repository time frame is necessary to provide an storage, the probability of a severe capacity was expected to become incentive to the Federal Government to earthquake increases. They believe that available within those 30 years. The meet its responsibilities for the disposal the NRCs alternative approach is Commission also reached the of HLW. One commenter favored only a arbitrary because there is no basis for conclusion under Finding 4 that SNF slight extension of the repository unconditional confidence in the could be safely stored for at least 30 availability date to 2035 in the belief indefinite onsite or offsite storage of years beyond the expiration of the that a further extension or removal of a waste. Further, the Attorney General of operating license. Id.

time frame would remove virtually all New York argues (in supplemental In 1990, the Commission considered a societal incentives for the United States comments) that the Commissions license renewal term of 30 years in its to develop a geologic repository. Some September 2009 votes on the draft final analysis supporting Findings 2 and 4 9 commenters feared that removal of a rule, which would remove a target date and explained its reasons for believing time frame, which would remove any from Finding 2 (and which the that there is ample technical basis for pressure on the Federal Government to Commission decided to do in September confidence that spent fuel can be stored resolve the SNF disposal issue, would 2010), support the idea that fuel will safely and without significant lead to added costs to taxpayers due to have to be stored indefinitely.8 environmental impact at these reactors the accumulating damages incurred by Similarly, another commenter asserted for at least 100 years (55 FR 38506; DOE because of its failure to honor its September 18, 1990). Thus, it is not that it is questionable whether the contracts for accepting SNF. Nye correct to say that NRC has admitted storage of SNF at current sites for 150 County, NV believes that removal of the that its original thirty-year time years or more is safe and feasible time frame implies that there is no estimation was based on no scientific or merely on the basis of the much more urgency in implementing the NWPA. technical facts. Rather, the NRCs limited experience involving SNF Nye County believes that waste estimate was based on both when it storage to date, particularly at ISFSIs, confidence would better be achieved if expected a repository to be available and at fewer locations with lower Finding 2 included a reaffirmation of and all the scientific and technical facts quantities of SNF, compared to what the need for a repository for ultimate it discussed under Findings 3 and 4 that would exist over such a long time span.

waste confidence and for its role in the In addition, the Attorneys General support a conclusion that SNF can be nations commitment to support the believe that in proposing to revise the safely managed and stored for at least environmental cleanup of weapons generic determination in 10 CFR that period of time. In fact, the program sites because a repository will 51.23(a) without reference to any time Commission considered a comment be needed even if other options for frame, the NRC has prematurely and urging it to find that SNF can be stored spent fuel management, such as safely in dry storage casks for 100 years inappropriately adopted the alternative recycling, are adopted. (55 FR 38482; September 18, 1990). The approach without waiting for public Some commenters believe that Commission did not dispute a removal of a time frame does not comments. Similarly, the Prairie Island Indian Community believes that, in the conclusion that dry spent fuel storage is acknowledge the intergenerational safe and environmentally acceptable for ethical concerns of this generation absence of a time frame, the Waste Confidence Rule would be premised on a period of 100 years, but rejected this reaping the benefits of nuclear energy, suggestion because it found that safe and passing off the nuclear waste the pure speculation that a disposal storage without significant mstockstill on DSKH9S0YB1PROD with RULES2 products to future generations without facility will be available at some unknown point in the future. NRDC environmental impact could take place providing them with any ultimate for at least 30 years beyond the disposal solution. Nye County believes believes that the NRCs alternative licensed life for operation of the reactor, that intergenerational equity is still the 8 The Commissions September 2009 votes, along and because it supported timely primary international basis for the with the September 2010 votes, are available at policy of geologic disposal. The Western http://www.nrc.gov/reading-rm/doc-collections/ 9 The license renewal period for operating Interstate Energy Board, in urging commission/cvr/2009/2009-0090vtr.pdf. reactors in 10 CFR part 54 is 20 years.

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81048 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations disposal of [SNF and HLW] in a geologic the Commission is unable to predict beyond the licensed life for operation repository, and by this Decision does with confidence when a successful (which may include the term of a not intend to support storage of spent program to construct a repository will revised or renewed license). Section fuel for an indefinitely long period. Id. start. Instead, the Commission has 51.23(a) is also revised to reinsert a The fact that the Commission, in 1990 reasonable assurance that sufficient version of the second sentence in the and now, has confidence that SNF can repository capacity will be available present rule that was excluded from the be safely stored for long periods of time when necessary, which means that proposed rule. This statement was does not mean, however, that the repository capacity will be available added to make it clear that Finding 4 Commission has examined scientific before there are safety or environmental does not contemplate indefinite storage and technological evidence supporting issues associated with the SNF and and to underscore the fact that the indefinite storage. The commenters HLW that would require the material to Commission has confidence that mined supporting alternative Finding 2 did not be removed from storage and placed in geologic repository capacity will be provide evidence supporting indefinite a disposal facility. As made clear in the available when necessary.

storage, nor has the Commission analysis that supports Finding 2, the Comment 10: TSEP claims that the adopted findings that support indefinite Commission continues to have survey of various international HLW storage. The State of Nevada, in its 2005 confidence that a repository can be disposal programs that the NRC petition for rulemaking, requested, inter constructed within 25-35 years of a provided to review the issue of social alia, that the NRC define availability Federal decision to do so, which is and political acceptability of a by presuming that some acceptable much shorter than the time frame repository shows that there can be no disposal site would be available at some considered in revised Finding 4. confidence that the necessary social and undefined time in the future. In denying Further, if it becomes clear that a political conditions exist in the United the petition, the Commission said [w]e repository or some other disposal States to provide any assurance that a find this approach inconsistent with solution will not be available by the end repository can be developed in any that taken in the 1984 [WCD] because it of 60 years after licensed life for foreseeable time frame. TSEP also provides neither the basis for assessing operation, the Commission will revisit believes that the NRCs survey is the degree of assurance that radioactive and reassess its Waste Confidence inaccurate and essentially incomplete waste can be disposed of safely nor the Decision and Rule if a revision has not because it omits the country that is often basis for determining when such already occurred for other reasons. held up as being exemplary for nuclear disposal will be available (70 FR 48333; As the Attorneys General, as well as powerFrance.

August 17, 2005). other commenters, noted, the proposed NRC Response: The NRC rejects the As explained in response to Comment rule was phrased differently from the commenters assertion that the NRCs 1, the Commissions action in this proposed revision of Finding 2; the examination of international experience update of the 1990 Waste Confidence proposed rule made a generic shows that there can be no confidence Decision is to expand its generic determination of safe storage of SNF that a repository will be developed in determination in 10 CFR 51.23(a) by 30 until a disposal facility can reasonably the United States in any foreseeable years, an action that results in no be expected to be available whereas time frame. The NRCs discussion of the significant environmental impacts and proposed Finding 2 predicted repository HLW programs of other countries was therefore does not require an EIS. The availability within 50-60 years beyond included to show that those countries Commissions approach in Findings 2 the licensed life for operation, and have programmed into their plans and 4 acknowledges the need for proposed Finding 4 made a finding of various methodologies for securing permanent disposal, and for the reasonable assurance of safe storage of social and political acceptance of a generations that benefit from nuclear SNF for at least 60 years beyond the repository. This has been a trial-and-energy to bear the responsibility for licensed life for operation. error process that has led to both providing an ultimate disposal for the The Commission did not intend to failures and successes. The processes, resulting waste. The Commissions cause confusion by adopting different especially in Finland and Sweden, show removal of a target date from Finding 2 language in the Findings and the rule. that this focus on deliberate attempts to does not mean that the Commission has The basis for the rule is identical to the gain public support can lead to success approved indefinite storage; Finding 4 basis for the findings, no matter how the given a sufficiently inclusive process still contains a time frame for the length rule itself is phrased; the Commission and enough time.

of post-licensed life storage. But a time has therefore decided to adopt similar The commenter believes that the frame in Finding 4 does not mean that language for Findings 2 and 4 and the NRCs survey is partly inaccurate the Commission has to include a target rule. As discussed above, the because the NRC incorrectly implies date in Finding 2; instead, the Commission has reconsidered Finding 2 that the United Kingdom (UK) ended a Commission has adopted a revised and, in recognition of recent program for developing a repository for Finding 2 that expresses the developments, has concluded that it HLW and SNF in 1997 when, in fact, the Commissions reasonable assurance that would be inappropriate to include a program was for disposal of repository capacity will be available target date in the Finding. The intermediate-level waste (ILW). The when necessary. This Finding does not Commission has therefore made a NRC agrees with the commenter that contemplate indefinite storage of SNF conforming change to the rule to one sentence describing the UK program and HLW; Finding 4 has not been incorporate the revised language from is misleading. This is because of a changed, and only considers at least 60 Finding 2. typographical error where HLW was years of storage beyond the licensed Further, as discussed in the proposed inserted instead of ILW. This error is mstockstill on DSKH9S0YB1PROD with RULES2 life for operation, including a license rule, the Commission has updated the corrected in this update.

renewal period, and the analysis rule language to include the time frame With respect to the omission of supporting Finding 2 considers the time for safe and environmentally sound France, the NRC did not seek to provide needed to construct a repository. storage from Finding 4. The final rule an exhaustive survey or complete The Commission has removed the now limits the generic determination history of all foreign repository target date from Finding 2 because regarding safe and environmentally programs. The NRC examined a number recent events have demonstrated that sound storage to at least 60 years of international examples for the VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81049 purpose of reasonably estimating the that have delayed the U.S. program. See more difficult problem challenging a minimum time needed to develop Finding 2 below. repository program is achieving political

• *

• societal and political acceptance Second, the Secretary of Energy and social acceptance, but the in concert with essential technical, established the Blue Ribbon Commission has confidence that this safety and security assurances. The Commission on Americas Nuclear problem can be solved. By applying the NRC noted that France was among ten Future. Department of Energy, Blue lessons learned in the YM program and nations that have established target Ribbon Commission on Americas in the different methodologies for dates (France expects that its repository Nuclear Future, Advisory Committee achieving acceptance used in will commence operation in 2025.), and Charter (2010), available at http:// international HLW programs, the among seven nations, of those ten, that brc.gov/pdfFiles/BRC_Charter.pdf. The Commission remains confident that plan disposal of reprocessed SNF and Blue Ribbon Commission will provide these issues impeding the construction HLW (73 FR 59558; October 9, 2008). A advice, evaluate alternatives, and make of a repository can be resolved.

brief examination of the progress of recommendations for a new plan to Comment 12: One commenter worried Frances waste disposal program address a number of issues associated that a decision in favor of this proposed suggests a time frame that is consistent with the back-end of the nuclear fuel rule change could prejudice a licensing with a range of 25-35 years for cycle. Id. Specifically, the Blue Ribbon decision in favor of the Yucca Mountain achieving societal and political Commission will evaluate the existing project simply because it would acceptability of a repository. Initial fuel cycle technologies and research and announce confidence in a waste site and efforts in France in the 1980s failed to development cycles; look at options for that is the only one there. The identify potential repository sites using the safe storage of SNF while final commenter also fears that this solely technical criteria. Failure of these disposal pathways are prepared; look at rulemaking could bias a decision to lift attempts led to the passage of nuclear options for the permanent disposal of or eliminate the statutory capacity limit waste legislation that prescribed a SNF and HLW; evaluate options to make on YM, which would be necessary for period of 15 years of research. Reports legal and commercial arrangements for the repository to accept SNF from new on generic disposal options in clay and the management of SNF and HLW; reactors. Further, the commenter granite media were prepared and prepare flexible, adaptive, and believes that if the YM project fails, reviewed by the safety authorities in responsive options for decision-making there will be no basis for confidence 2005. In 2006, conclusions from the processes related to the disposal and that a waste site will be available in the public debate on disposal options, held management of SNF and HLW; look at future.

in 2005, were published. Later that year, options to ensure that any decisions are open and transparent, with broad NRC Response: The Commissions the French Parliament passed new participation; evaluate the possible need reaffirmation of Finding 1that legislation designating a single site for for additional legislation or disposal of HLW and SNF is technically deep geologic disposal of intermediate amendments to existing laws; and any feasibleand its revision of Finding 2, and HLW. This facility, to be located in additional issues that the Secretary of which states confidence that repository the Bure region of northeastern France, Energy deems appropriate. Id. capacity will be available when is scheduled to open in 2025, some 34 years after passage of the original The NWPA still mandates by law a necessary, are not tied to any particular Nuclear Waste Law of 1991. national repository program, and site. In fact, the Commissions proposal Comment 11: Several commenters decades of scientific studies support the assumed that YM would not go forward believe that the history of the U.S. use of a repository for disposal of HLW and become available as a repository.

repository program demonstrates that and SNF. Federal responsibility for Moreover, the Waste Confidence there should be no assurance that the siting and building a repository remains Decision and Rule have no legal effect political and social acceptance needed controlling national policy. Finding 2 is in the YM licensing proceeding. See to support development of a repository a prediction that a repository will be Nevada v. NRC, No. 05-1350, 199 Fed.

in the time frame envisioned in Finding available when the societal and political Appx. 1 (DC Cir. 2006). Therefore, the 2 will be realized. obstacles to a repository are overcome NRC does not believe that adopting NRC Response: The Commission and sufficient resources are dedicated to these findings will prejudice a licensing acknowledges the difficulties that the the siting, licensing, and construction of decision on Yucca Mountain. In a 2008 U.S. HLW program has encountered a repository. It necessarily follows from report DOE predicted that by 2010 SNF over the years from the failed attempt to the Waste Confidence Decision that the would exceed the 70,000 metric tons of locate a repository in a salt mine in Commission has reasonable assurance heavy metal (MTHM) statutory limit for Lyons, Kansas, through the strong and that sufficient repository capacity will YM, and that if all existing reactors continuous opposition to the proposed be available before there are safety or continue to operate for a total of 60 repository at YM. Nevertheless, the environmental issues associated with years through license renewals, SNF commenters overlook a number of key the SNF and HLW that would require will exceed 130,000 MTHM. See The developments that support the the material to be removed from storage Report to the President and the Commissions confidence that a and placed in a disposal facility. If this Congress by the Secretary of Energy on repository will be available when were not the case, the Commission the Need for a Second Repository, DOE/

necessary. would be unable to express its RW-0595, December, 2008. Thus, even First, the comments assume that any reasonable assurance in the continued if YM were to obtain NRC approval and repository program must start over from safe, secure, and environmentally sound be built, the amount of SNF from the beginning. But any new repository storage of SNF and HLW. current reactors alone would require a mstockstill on DSKH9S0YB1PROD with RULES2 program would build upon the lessons Finally, the Commission reiterates change in the statutory limit or a second learned from the YM and other Finding 1, which states that the repository. Finally, as stated above, the repository programs. Other countries are Commission finds reasonable assurance proposed revision of Finding 2 assumed working toward development of a that safe disposal of HLW and SNF in that YM would not go forward. The repository, and some have settled upon a mined geologic repository is NRCs basis for continued confidence a process that is designed to deal with technically feasible. This finding has that a repository will be available when many of the societal and political issues remained unchanged since 1984. The necessary is explained in its response to VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81050 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations Comment 11 and its discussion of the purposes for which the rule was ISFSI construction, operating, and Finding 2. adopted. Thus, the Commission decommissioning costs. In addition, a Comment 13: The State of Nevada declines to adopt this additional specific licensee that wants to transfer favored the Commissions alternative sentence. its license must submit an application approach to Finding 2, but also that demonstrates that the proposed Issue 6: Whether the Commission Has suggested that 10 CFR 51.23(a) be transferee meets the same financial an Adequate Basis To Reaffirm Finding reworded as follows: qualifications as the initial license. See 3

The Commission has made a generic 10 CFR 72.50. Most specific licensees determination that there is reasonable Comment 14: One commenter stated are financially backed by a utility with assurance all licensed reactor spent fuel will that the NRC appears to ignore the either an operating or shutdown NPP be removed from storage sites to some reality that available legal and corporate and are required under 10 CFR acceptable disposal site well before storage strategies exist that can provide for the 50.54(bb) to have sufficient resources for causes any significant safety or transfer of NPPs and ISFSIs, and the spent fuel management after cessation of environmental impacts. This generic finding SNF itself, to unfunded separate limited operations. Other specific licensees, not does not apply to a reactor or storage site if liability companies that can easily located at a NPP site, that are currently the Commission has found, in the 10 CFR abandon SNF at existing sites once the storing spent fuel are backed either by Part 50, Part 52, Part 54 or Part 72 specific economic value of the generating plants licensing proceeding, that storage of spent a large corporation, such as General is exhausted. Electric (the GE Morris ISFSI), or by the fuel during the term requested in the license NRC Response: The transfer of a DOE, in the case of the Three Mile application will cause significant safety or environmental impacts. license for a NPP is governed by 10 CFR Island Unit 2, and Ft. Saint Vrain 50.80. An applicant for transfer of its ISFSIs.

Nevada explains that the last sentence license must provide the same is added to be consistent with 10 CFR information on financial and technical Issue 7: Whether the Commission Has 51.23(c), which provides that 10 CFR qualifications for the proposed an Adequate Basis for Finding That SNF 51.23(a) does not alter any requirement transferee as is required for the initial Generated in Any Reactor Can Be Stored to consider environmental impacts license. Therefore, the entity intended Safely and Securely and Without during the requested license terms in to receive the license must demonstrate Significant Environmental Impact for at specific reactor or spent fuel storage its ability to meet the financial Least 60 Years (Finding 4) license cases. Nevada states that NRC obligations of the license. Both general Comment 15: Several commenters should not prejudge this review of and specifically licensed ISFSIs are posited that the NRC does not have an potential safety or environmental required to demonstrate financial adequate technical basis for finding impacts from storage during the qualifications before they are issued a reasonable assurance that SNF can be requested license term in any pending license. The requirements for general stored safely and without significant or future licensing proceeding. Nevada licensees are in 10 CFR part 50, while environmental impact because they also states that in the event the the financial qualifications for believe that high-density spent fuel Commission adopts Finding 2 as specifically licensed ISFSIs are in 10 storage pools (SFPs) are vulnerable to proposed, it needs to clear up the CFR part 72. catastrophic fires that may be caused by ambiguity inherent in the reference to A general license is issued to store accidents or intentional attacks. These the 50-60 year time period. Presumably spent fuel at an ISFSI [a]t power reactor commenters do not believe that the NRC the Commission means it expects a sites to persons authorized to possess or has properly assessed this risk. TSEP repository within 60 years. operate nuclear power reactors under 10 submitted a report, Environmental NRC Response: For the reasons CFR part 50 or 10 CFR part 52. 10 CFR Impacts of Storing Spent Nuclear Fuel explained in response to Comment 9, 72.210. Under 10 CFR 50.54(bb), NPP and High-Level Waste from Commercial the Commission has decided to adopt a licensees must have a program to Nuclear Reactors: A Critique of NRCs revised Finding 2 that states its manage and provide funding for the Waste Confidence Decision and confidence in the availability of a management of spent fuel following Environmental Impact Determination, repository when necessary. 10 CFR permanent cessation of operations until prepared by Dr. Gordon R. Thompson, 51.23(c) points out that the generic title to and possession of the fuel is the Executive Director of the Institute determination in 10 CFR 51.23(a) only transferred to the Secretary of Energy. for Resource and Security Studies applies to the period following the term As required in 10 CFR 72.30(c), all (Thompson Report), which describes the of the reactor operating license, reactor general licensees must provide financial potential risks associated with a fire in combined license or amendment, or assurance for sufficient funds to a SFP following a loss of water from the initial ISFSI license or amendment in decommission the ISFSI. In addition, pool. The Thompson Report takes the proceedings held under 10 CFR Parts general licensees who have view that the NRC documents published 50, 52, 54 and 72. Nevada is concerned decommissioned their site, with the on the risk of SFP fires are inadequate that in a case where the environmental exception of the ISFSI and support and objects to the fact that some of the impacts during the term of the license facilities, must demonstrate that they more recent documents rely on secret were judged to be significant, there have sufficient funds to decommission studies, which cannot be verified by would be reason to doubt the the ISFSI after the spent fuel is the public. The Attorney General of applicability of a generic determination permanently transported offsite. California requests that the NRC that the impacts occurring after the Applicants for a specific license to reconsider the information on the risks requested license term would not be store spent fuel under 10 CFR part 72 of SFP fires that California and mstockstill on DSKH9S0YB1PROD with RULES2 significant and so has proposed are required to demonstrate their Massachusetts submitted with their inclusion of a second sentence in 10 financial qualifications. See 10 CFR rulemaking petitions, which the NRC CFR 51.23(a). The Commission already 72.22(e). To meet the financial denied. See The Attorney General of has a rule, 10 CFR 2.335, that allows a requirements, the applicant must show Commonwealth of Massachusetts, The party to an adjudicatory proceeding to that it either possesses the necessary Attorney General of California; Denial of seek a waiver or exception to a rule funds or has reasonable assurance of Petitions for Rulemaking (73 FR 46204; where its application would not serve obtaining the necessary funds to cover August 8, 2008) (MA and CA Petitions).

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81051 Dr. Thompson also questioned the the NRC had concluded in the GEIS for argued that the NRC staff should have analyses and assumptions that support renewal of NPP licenses. The petitioner considered, but failed to consider, the staffs conclusions regarding raised the possibility of a successful scenarios with much larger releases of terrorist attacks on ISFSIs. Dr. terrorist attack as increasing the radiation [that] are also plausible and Thompson defined four types of probability of a SFP zirconium fire. The should have been considered. * *

• potential attack scenarios and noted that petitions claimed that they were [for] example [a scenario] * *

• where the staffs previous analyses, specifically proffering new and significant the penetrating device is accompanied the Diablo Canyon EA, focus only on information on this issue, including a by an incendiary component that ignites Type III scenarios and ignore the far less study by Dr. Thompson, see Risks and the zirconium cladding of the spent fuel dramatic, but far more effective, Type IV Risk-Reducing Options Associated with inside the storage cask, causing a much releases. Thompson Report at 47-48. Pool Storage of Spent Nuclear Fuel at larger release of radioactive material Type I releases are those caused by the the Pilgrim and Vermont Yankee than posited in scenarios where the vaporization of the ISFSI by a nuclear Nuclear Power Plants, May 25, 2006 cases sustain minimal damage. Id. at explosion and are not considered by Dr. (Thompson 2006 Report), and a report 19. The Commission considered this Thompson in his analysis. Thompson by the National Academies Committee argument and found that [a]djudicating Report at Table 7-8. Type II releases on the Safety and Security of alternate terrorist scenarios is deal with an attack by aerial bombing, Commercial Spent Nuclear Fuel Storage, impracticable. The range of conceivable artillery, rockets, etc., resulting in see Safety and Security of Commercial (albeit highly unlikely) terrorist rupture of the ISFSI and large dispersal Spent Nuclear Fuel Storage (National scenarios is essentially limitless, of the contents of the cask. Id. Type III Academies Press: 2006) (NAS Report). confined only by the limits of human events are similar to Type II, but involve The Commission considered all of ingenuity. Id. at 20. Further, the small dispersal of the contents of the this information and concluded that Commission found that the staffs cask, and are caused by vehicle bombs, [g]iven the physical robustness of SFPs, approach to its terrorism analysis, impact by commercial aircraft, or the physical security measures, and SFP grounded in the NRC Staffs access to perforation by a shaped charge. Id. mitigation measures, and based upon classified threat assessment information, Finally, Type IV events are caused by NRC site evaluations of every SFP in the is reasonable on its face. Id. In his missiles with tandem warheads, close- United States * *

• the risk of an SFP comment, Dr. Thompson attempts to up use of shaped charges and zirconium fire, whether caused by an revisit the Diablo Canyon proceeding by incendiary devices, or removal of the accident or a terrorist attack, is very claiming that the Staff limited its overpack lid. Id. This type of attack low (73 FR 46208; October 9, 2008). examination to Type III releases.

results in scattering and plume Later, the United States Court of Thompson Report at 48. Not only has formation similar to that of a Type III Appeals for the Second Circuit rejected this issue already been addressed by the event, but the release of material far a challenge to the Commissions denial Commission, but some of the specifics exceeds that of a Type III event. Id. Dr. of the CA and MA petitions. New York of Dr. Thompsons Type IV releases Thompson claims that the staffs v. NRC, 589 F.3d 551 (2d Cir. 2009). The are discussed and dismissed by the analysis does not consider the court said that the relevant studies Commission. Thompson Report Table environmental impacts of a Type IV cited by the NRC in this case constitute 7-8; Diablo Canyon at 19-20.

attack on an ISFSI. Id. at 48. a sufficient basis in fact for its Comment 16: A number of NRC Response: The NRCs 1990 conclusion that the overall risk is low. commenters urged the Commission to Waste Confidence Decision described Id. at 555. consider the increasing frequency of the studies of the catastrophic loss of The commenters are dissatisfied with spent fuel pool leaks as evidence calling reactor SFP water possibly resulting in the NRCs analysis of this issue, but the into question the NRCs confidence in a fuel fire in a dry pool that the NRC only new information they have the safety of SNF storage in the normal staff had undertaken prior to that time provided is Dr. Thompsons 2009 operation of spent fuel pools. Comments (55 FR 38511; September 18, 1990). The Report. The NRC has reviewed the 2009 submitted by the Attorneys General of proposed update further details the Report and has found no information the States of New York and Vermont, a considerable work that the NRC has not previously considered by the NRC. supplemental comment from the done in evaluating the safety of SFP The Attorney General of California Attorney General of New York, and the storage, including the scenario of a SFP contends that the NRC should have Commonwealth of Massachusetts fire, and notes that following the considered the information supplied by described leaks of tritium at reactor sites terrorist attacks of September 11, 2001, the petitioners with the MA and CA around the country. They believe that the NRC undertook a complete Petition. The NRC did consider this increased onsite storage increases the reexamination of SFP safety and information and explained that the opportunity for human error resulting in security issues (73 FR 59564-59565; information was neither new nor unauthorized releases. They are October 9, 2008).10 The proposed significant and would not lead to an concerned about the lack of monitoring update discusses, in particular, the environmental impact finding different requirements or guidelines for these Commissions careful consideration of from that set forth in the GEIS for spent fuel leaks.

this issue in responding to the MA and license renewal. Dr. Thompsons NRC Response: The NRCs proposed CA Petitions. The petitions asserted that contention that the NRC did not update of the Waste Confidence consider credible threats to ISFSIs that Decision acknowledged incidents of spent fuel stored in high-density SFPs is would cause significant environmental groundwater contamination originating more vulnerable to a zirconium fire than impacts has already been addressed by from spent fuel pool leaks. The Liquid mstockstill on DSKH9S0YB1PROD with RULES2 10 NRCs reexamination of safety and security the Commission in Pacific Gas and Radioactive Releases Lessons Learned issues included consideration of reports issued by Electric Co. (Diablo Canyon Task Force, created in response to these Sandia National Laboratories and the National Independent Spent Fuel Storage incidents, reported that near-term health Academy of Sciences, which are classified, SGI, or Installation), 67 NRC 1, CLI-08-01 impacts resulting from the leaking spent official-use-only security-related information, and thus cannot be released to the public; public (2008). In that case, the San Luis Obispo fuel pools that the NRC had examined versions of these reports are available. See response Mothers for Peace submitted an affidavit were negligible but also that measures to comment 2 above. and report by Dr. Thompson, which should be taken to avoid leaks in the VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81052 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations future. The Task Force provided 26 deficient because it does not include (2008), petition for judicial review specific recommendations for consideration of the environmental pending, No. 09-1268 (9th Cir.).

improvements to The NRCs regulatory impacts of a successful terrorist attack. Comment 18: TSEP and the Attorney programs regarding unplanned The commenters recognize that the General of New York (in a supplemental radioactive liquid releases. See Report Commission continues to disagree with comment) point out that the NRC has Nos. 05000003/2007010 and 05000247/ the Ninth Circuit and believes that, treated the risk of a catastrophic fuel fire 2007010, May 13, 2008 (ADAMS outside of the Ninth Circuit, the caused by an attack or an accident that Accession Number ML081340425), as environmental effects of a terrorist leads to partial or complete drainage of well as Liquid Release Task Force attack do not need to be considered in a high-density SFP as a site-specific Recommendations Implementation its NEPA analyses. Amergen Energy Co., issue, imposing orders requiring NPPs Status as of February 26, 2008, LLC (Oyster Creek Nuclear Generating to enhance security and improve their (ADAMS Accession Number Station), CLI-07-08, 65 NRC 124 (2007). capabilities to respond to terrorist ML073230982). Recently, the Third Circuit U.S. Court of attack. Some of these orders required The NRC has also revised several Appeals upheld the NRCs view that licensees to develop specific guidance guidance documents as well as an terrorist attacks are too far removed and strategies to maintain or restore Inspection Procedure to address issues from the natural or expected spent fuel pool cooling capabilities (See associated with leaking spent fuel pools. consequences of agency action to 73 FR 59567; October 9, 2008). TSEP The NRC will continue to follow this require an environmental impact and the Attorney General believe that issue and the NRCs regulatory oversight analysis. New Jersey Department of this demonstrates that the NRC will continue to ensure safety and Environmental Protection v. U.S. considers the risk of a pool fire to be appropriate environmental protection. Nuclear Regulatory Commission, 561 specific to each nuclear plant and that Thus, the Commission remains F.3d 132 (3d Cir. 2009). The Third site-specific measures to reduce these confident that storage of SNF in pools Circuit stated: risks to an acceptable level must be will not have any significant taken at each plant. TSEP and the environmental impacts. In holding that there is no reasonably Attorney General believe that this is close causal relationship between a Comment 17: A number of inconsistent with the NRCs reliance on relicensing proceeding and the commenters expressed the view that the environmental effects of an aircraft attack on its generic determination in 10 CFR NRCs updates to the Waste Confidence the licensed facility, we depart from the 51.23(a) to deny hearing requests Decision and Rule do not comply with reasoning of the Ninth Circuit * * *. The regarding the safety and environmental the holding of the Ninth Circuit Court Mothers for Peace court held that, given the impacts of spent fuel storage, on of Appeals in San Luis Obispo Mothers policy goals of NEPA and the rule of contentions that are within the scope of for Peace v. NRC, 449 F. 3d 1016 (9th reasonableness that governs its application, the generic determination, in individual Cir. 2006), cert. denied, 127 S. Ct. 1124 the possibility of terrorist attack is not so licensing cases. Because the NRC has (2007), that environmental analysis remote and highly speculative as to be (allegedly) acknowledged that its under NEPA requires an examination of beyond NEPAs requirements. * * *. We findings regarding the safety and note, initially, that Mothers for Peace is the environmental impacts that would security of spent fuel storage are site-distinguishable on the ground that it result from an act of terrorism against an involved the proposed construction of a new specific and not generic in nature, TSEP ISFSI because an attack is reasonably facilitya change to the physical and the Attorney General believe that foreseeable and not remote and environment arguably with a closer causal the NRC should withdraw its generic speculative as the NRC had argued relationship to a potential terrorist attack finding.

before the court. than the mere relicensing of an existing NRC Response: After the terrorist NRC Response: Finding 4 considers facility. . More centrally, however, we attacks of September 11, 2001, the the potential risks of accidents and acts disagree with the rejection of the reasonably Commission issued orders to NPP and of sabotage at spent fuel storage close causal relationship test set forth by the ISFSI licensees requiring enhanced facilities. In 1984 and 1990, the NRC Supreme Court and hold that this standard protective measures under its Atomic provided some discussion of the reasons remains the law in this Circuit. We also note Energy Act authority to establish by that no other circuit has required a NEPA why it believed that the possibility of a rule, regulation, or order, such analysis of the environmental impact of a major accident or sabotage with offsite hypothetical terrorist attack. Id. at 142 standards and instructions to govern the radiological impacts at a spent fuel (citations and footnote omitted). possession and use of [nuclear storage facility was extremely remote. In materials] as the Commission may deem the proposed update to the Waste But even though, outside of the Ninth necessary or desirable to promote the Confidence Decision, the Commission Circuit, the NRC continues to adhere to common defense and security or to gave considerable attention to the issue its traditional view that the protect health or to minimize danger to of terrorism and spent fuel management environmental impacts of a terrorist life or property. * *

• 42 U.S.C. 2201 (See 73 FR 59567-59568; October 9, attack do not need to be considered (2006). These orders were site-specific 2008). The Commission concluded that outside of the Ninth Circuit, the and required each licensee to buttress

[t]oday spent fuel is better protected environmental assessment for this its security arrangements to achieve the than ever. The results of security update and rule amendment includes a revised standards set by the assessments, existing security discussion of terrorism in the discussion Commission. Additionally, the orders regulations, and the additional of the revision to Finding 4 that the NRC were used as an expedient method to protective and mitigative measures believes satisfies the Ninth Circuits impose new security requirements on imposed since September 11, 2001, holding in Mothers for Peace v. NRC, as licensees. Subsequently, some of these mstockstill on DSKH9S0YB1PROD with RULES2 provide high assurance that the spent the decision explicitly left to agency new requirements and other additional fuel in both spent fuel pools and in dry discretion the precise manner in which requirements were codified in storage casks will be adequately the NRC undertakes a NEPA-terrorism rulemaking (See 72 FR 56287; October protected. Id. review. See Pacific Gas and Electric Co. 3, 2007, 73 FR 19443; April 10, 2008, 73 Some commenters believe that the (Diablo Canyon Power Plant FR 51378; September 3, 2008, 73 FR NRCs environmental analysis of the Independent Spent Fuel Storage 63546; October 24, 2008; 74 FR 13926; security of spent fuel storage facilities is Installation), CLI-08-01, 67 NRC 1 March 27, 2009, 74 FR 17115; April 14, VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81053 2009). The NRCs determination that The NRCs regulations, 10 CFR 72.236 shoreline retreat, and inland flooding.

SNF can be stored safely and without (for casks) and 72.122 (for facilities), Impacts to coastal areas may be further significant environmental impacts require that applications for a Certificate exacerbated by the land subsiding, as is beyond the licensed life for operation of of Compliance (COC) for a dry storage currently observed in some central Gulf the reactor for at least 60 years is a cask and a license to store spent fuel in Coast areas. NRC facilities, including generic determination that satisfies both an ISFSI evaluate the effects of a design ISFSIs, are designed to be robust. The the NRCs NEPA responsibilities and basis flood on the facility. The facilities are evaluated to ensure that evaluates the safety of the ongoing evaluation of a design basis flood performance of their safety systems, storage of SNF and HLW. The includes both static pressure from structures, and components is determination considers reasonably standing water and the force from a maintained during flooding events, and foreseeable risks that could threaten the uniform flood-current. In addition, all are monitored when in use. The lowest safety of SNF storage and the storage casks approved for use with the grade above sea-level of concern for an environmental impacts of these risks. general license provisions in 10 CFR NRC licensed facility is currently about There is no inconsistency between the part 72 have been evaluated for static 4.3 m (14 feet). In the event of climate NRCs orders enhancing security at each pressure and uniform flood-current in change induced sea-level rise the NRC plant and its generic determination that the same manner as those for a specific regulations require licensees to SNF can be safely stored because the licensee. The NRC has published implement corrective actions to identify requirements imposed by the orders and regulatory guidance that describes and correct or mitigate conditions rulemakings help to ensure the safety acceptable approaches to assessing these adverse to safety.

and security of the SNF. As the Third impacts; further, the staff is addressing Comment 20: A commenter stated that Circuit said in its decision upholding climate change in updates to its two eventsthe July 16, 2007, the NRCs determination that NEPA did guidance. Based on the NRCs activities earthquake in Niigata Province, Japan, not require that the NRC consider the related to climate change, and the and an April 2008 earthquake in environmental effects of an aircraft relatively slow rate of this change, the Michiganand an August 2008 study, attack on a licensed facility, the fact that NRC is confident that any regulatory which discusses a newly-discovered the NRC does not have a particular action that may be necessary will be fault line that could significantly obligation under NEPA does not mean taken in a timely manner to ensure the increase estimates of the probability of that the NRC has no obligation to safety of all nuclear facilities regulated an earthquake in New York City, consider how to strengthen nuclear by the NRC. undermine confidence in the safety of facilities to prevent and minimize the spent fuel storage. Further, the Based on the models discussed in the commenter believes that given the effects of a terrorist attack; indeed, the NAS study (Potential Impact of Climate differing seismology of various plants AEA gives broad discretion over the Change on U.S. Transportation: Special around the country, a generic safety and security of nuclear facilities.

Report 290), none of the U.S. NPPs determination that SNF can be stored New Jersey Department of (operational or decommissioned) will be safely without significant environmental Environmental Protection v. U.S.

under water or threatened by water impacts for long periods of time is Nuclear Regulatory Commission, 561 F.3d 132, 142 fn 9 (3d Cir. 2009). As levels by 2050. The climate change inappropriate.

discussed in the Response to Comment models used in the NAS study are based NRC Response:

17, the NRCs analysis satisfies the on work by the Intergovernmental Panel Japan Earthquake of July 2007:

Ninth Circuits holding in San Luis on Climate Change. Climate changes Staff reviewed a report on the 2007 Obispo Mothers for Peace. over the next century are expected to Japan Earthquake by the International Comment 19: A commenter stated that result in a sea-level rise of Atomic Energy Agency (IAEA) in the NRCs implication that above- approximately 0.8 meters; see J.A. December 2008. See 2d Follow-up IAEA ground storage may be safely conducted Church et al., Climate Change 2001: Mission in Relation to the Findings and for 60 years beyond the operating Impacts, Adaptation, and Vulnerability, Lessons Learned from the 16 July 2007 license of a reactor does not seem to Intergovernmental Panel on Climate Earthquake at Kashiwazaki-Kariwa NPP, account for probably rapidly changing Change, 642 (2001). Recently, the The Niigataken Chuetsu-oki climactic conditions in the next few Intergovernmental Panel on Climate Earthquake, Tokyo and Kashiwazaki-decades. This is very critical since most Change published a report confirming Kariwa NPP, Japan, 1-5 December 2008.

reactor sites are located near large an accelerated sea-level rise in North The report was the third in a series bodies of water. America and concluding there will be issued by an IAEA-led team of NRC Response: The earliest impact to further accelerated sea-level rise; the international experts that completed the spent fuel storage casks from climate report found that the global mean sea- mission in December 2008. According to change is not from submergence of level is projected to rise by 0.35 +/- 0.12 this report, the safe performance of the structures by rising ocean levels, but meters from the 1980 to 1999 period to Kashiwazaki-Kariwa nuclear power rather from an increased risk of the 2090 to 2099 period (http:// plant during and after the earthquake potential flooding from storm surge and www.ipcc.ch/ipccreports/ar4-wg2.htm). that hit Japans Niigata and Nagano high winds caused by extreme weather This conclusion is supported by the prefectures on 16 July 2007 has been events. Current NRC regulations for findings of the U.S. Global Change confirmed. The head of the IAEAs design characteristics specifically Research Program report published in Division of Installation Safety, and the address severe weather events. Before 2009 (http:// leader of the mission, also stated that certification or licensing of a dry storage downloads.globalchange.gov/ [t]he four reactors in operation at the mstockstill on DSKH9S0YB1PROD with RULES2 cask or ISFSI, the NRC requires that the usimpacts/pdfs/climate-impacts- time in the seven unit complexthe vendor or licensee include design report.pdf). Based on these reports, sea- worlds largest nuclear power plant parameters on the ability of the storage level rise is controlled by complex shut down safely and there was a very and spent fuel storage facilities to processes, and estimated to rise less small radioactive release well below withstand severe weather conditions than 1 meter by 2100. In addition to sea- public health and environmental safety such as hurricanes, tornadoes, and level rise, NRC facilities may be affected limits. The lessons learned from the floods. by increased storm surges, erosion, results of the plant integrity evaluation VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81054 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations process will be reviewed by the NRC reactor site parameters, including currently being considered as part of the and may be incorporated, as necessary, analyses of earthquake intensity and NRCs Generic Issue Resolution Process.

to improve the approaches for design tornado missiles, are enveloped by the Additionally, the storage cask analyses and evaluation criteria currently used cask design bases considered in these and designs at operating ISFSIs provide for NPPs in the United States. reports. an adequate safety margin and comply The Michigan Earthquake in April In the continental United States, with the requirements in 10 CFR part 2008: geographic areas located east of the 72. Since Generic Issue No. 199, NRC Staff reviewed NRCs Rocky Mountain Front (east of Implications of Updated Probabilistic Preliminary Notification of Event or approximately 104 degrees west Seismic Hazard Estimates in Central and Unusual Occurrence, PNO-III longitude) are generally known as Eastern United States on Existing 004A, April 18, 2008 (ADAMS CEUS. For NPP sites that have been Plants, November 17, 2008, is still an Accession Number ML081090639) on evaluated under the criteria of 10 CFR open issue, implications of any new the April 2008 earthquake in Michigan. part 100, appendix A, the Design information and its effects, if any, on This Notification revealed that licensee Earthquake must be equivalent to the CEUS-ISFSI seismic design for the personnel and NRC inspectors at the safe shutdown earthquake for the NPP, storage casks and support pads will be D.C. Cook and Palisades NPPs, both of but in no case less than 0.10g. For the evaluated as part of the resolution of which experienced onsite seismic existing NPPs in the United States, the that issue.

activity, conducted independent design basis response spectra used for On September 2, 2010, the NRC equipment walkdowns after the initial the design of dry cask storage systems issued Information Notice (IN) 2010-18, earthquake and aftershock, and are based on the response spectrum Implications of Updated Probabilistic identified no issues. In addition, defined in NRC Regulatory Guide 1.60, Seismic Hazard Estimates in Central and licensee personnel and NRC inspectors Design Response Spectra for Seismic Eastern United States on Existing conducted equipment walkdowns at all Design of Nuclear Power Plants, Rev. 1, Plants to all operating reactors operating power reactors that felt December 1973, anchored at a Peak licensees. IN 2010-18 discusses recent seismic activity and also identified no Ground Acceleration of 0.3g in the updates to estimates, which apply to issues. The NRC staff concluded that the horizontal direction and 0.2g in the ISFSIs as well as existing plants, of the earthquake will have little overall vertical direction. seismic hazard in the central and influence on the postulated seismic As a condition for using a general eastern United States. In summary, the hazard estimates at ISFSIs located in the license to operate an ISFSI, licensees are information provided by the CEUS. required to perform written evaluations commenters has little overall influence The seismic design requirements for to establish, for their site-specific on the postulated seismic hazard spent fuel pools are the same as for conditions, that the conditions set forth estimates in the CEUS.

NPPs; these events do not undermine in the CoC have been met and that cask August 2008 Study of Seismic Hazard confidence in the safety of storage of storage pads and areas have been Estimates in the Eastern United States:

spent fuel in spent fuel pools. With designed to adequately support the In August 2008, a technical paper, respect to dry storage, under 10 CFR static and dynamic loads of the stored Observations and Tectonic Setting of 72.210, a general license for the storage casks, considering potential Historic and Instrumentally Located of spent fuel in an ISFSI is granted to amplification of earthquakes through Earthquakes in the Greater New York all holders of a license issued under 10 soil-structure interaction, and soil CityPhiladelphia Area by Lynn R.

CFR Part 50 to possess or operate a NPP. liquefaction potential or other soil Sykes et al. was published in the The conditions of this general license instability due to vibratory ground Bulletin of the Seismological Society of are given in 10 CFR 72.212. The motion. The Indian Point, Vermont America, Vol. 98, No. 4. NRC staff from conditions of the license require a Yankee, and Palisades NPPs, which the Office of Nuclear Regulatory general licensee to perform written were specifically cited in the comment, Research (RES) reviewed this paper to evaluations prior to use that establish have ISFSIs co-located at their existing assess the impacts, if any, of this new that: (a) Conditions set forth in the NPPs and are operating their ISFSIs information on the existing design basis Certificate of Compliance (CoC) have under an NRC general license. Entergy seismic hazard estimates used for NPPs been met; (b) cask storage pads and Nuclear Generation Company has located in this area of Central and areas have been designed to adequately informed the NRC of its intentions to Eastern United States (CEUS). RESs support the static and dynamic loads of store spent fuel in dry casks at the assessment was as follows:

the stored casks, considering potential Pilgrim NPP.

amplification of earthquakes through Based on currently available In addition to publishing a seismicity map soil-structure interaction, and soil information, the NRC concludes that the of the area covering the time period from liquefaction potential or other soil storage casks being used at Indian Point, 1677 to 2006, the paper identifies for the first time a boundary in seismicity, with instability due to vibratory ground Vermont Yankee, and Palisades (all earthquakes with magnitudes less than 3 motion; and (c) the requirements of 10 located in CEUS) demonstrate an occurring south of the boundary but not CFR 72.104 (dose limitations for normal adequate margin of safety for any north of it. The boundary intersects the operation and anticipated occurrences) design-basis earthquake loads Ramapo Fault on the northwest near have been met. Additionally, the ISFSI postulated at these respective sites. Peekskill, NY, and this point appears to foundation analysis must include soil- There is no safety concern; however, coincide with an offset in the Hudson River.

structure interaction and must address there were a few limitations to the risk The southeast terminus of the boundary is liquefaction potential. See 10 CFR methodology employed and near Stamford, CT, with a length of about 30 mstockstill on DSKH9S0YB1PROD with RULES2 72.212(b)(2). Further, 10 CFR uncertainties associated with the data miles (50 km). The authors inferred that the 72.212(b)(3) requires that a general used. As a result, licensees of operating boundary is a fault.

If the boundary is a fault, it is only about licensee [r]eview the Safety Analysis power reactors and ISFSI facilities in 30 miles long and much shorter than the Report (SAR) referenced in the [CoC] the CEUS may need to evaluate whether Ramapo Fault, which has already been and the related NRC Safety Evaluation the updated seismic hazard estimates considered in the seismic hazard of the area Report, prior to use of the general will have any adverse impact on their and in the seismic design of the Indian Point license, to determine whether or not the current design/licensing basis. This is NPPs. The Ramapo Fault was already VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81055 considered in a probabilistic seismic hazard certify transportation packages provide that today SNF is better protected than assessment (PSHA) covering the Indian Point a very high degree of protection against ever, but also believes that the SNF will area. The newly identified boundary/fault real world accidents. See NUREG/CR- be even more secure in a centralized would not change the maximum magnitude 4829, Shipping Container Response to interim storage or permanent disposal in the PSHA calculations; the Ramapo already controls that. The vast majority of Severe Highway and Railway Accident facility. Similarly, a number of earthquakes identified in the paper and the Conditions; NUREG/CR-6894, Spent commenters expressed the view that a general seismicity of the area were known Fuel Transportation Package Response centralized interim storage facility and were used in the US Geological Survey to the Caldecott Tunnel Fire Scenario; would be a safe and cost-effective PSHA. Thus, the rate of seismicity used in NUREG/CR-6886, Spent Fuel option for managing and storing SNF their PSHA is little changed by the paper. Transportation Package Response to the until a repository is available. The DPC Thus, with the maximum magnitude and the Baltimore Tunnel Fire Scenario; also takes exception to the NRCs rate of seismicity little changed or unchanged NUREG-0170, Final Environmental analysis of difficulties that may block by the paper, the PSHA assessment is not Statement on the Transportation of the opening of the Private Fuel Storage expected to have changed. Radioactive Material by Air and Other (PFS) ISFSI and the NRCs analysis of This means that the paper would have little overall influence on the perceived Modes; Going the Distance? The Safe a February 2006 NAS study, in footnote hazard near Buchanan, NY. E-mail from Transport of Spent Nuclear Fuel and 24 of the proposed update to the Waste Andrew Murphy to Scott Burnell, Diane High-Level Radioactive Waste in the Confidence Decision, and would like Screnci, and Neil Sheehan, August 22, 2008 United States, National Research the footnote eliminated or rewritten.

(ADAMS Accession Number ML091530483). Council of the National Academies, NRC Response: The Commission National Academies Press, Washington continues to support timely disposal of The rate of seismicity of the area used DC, 2006, available at http:// HLW and SNF, but recognizes in this in the USGS PSHA is little changed by Waste Confidence Decision that storage www.nap.edu/

the information published in the paper. of SNF may safely continue for at least catalog.php?record_id=11538.

As the maximum magnitude and the Additionally, the NRC periodically 60 years beyond the licensed life for rate of seismicity changed little or was reviews the basis for the transportation operation of a reactor. The Commission practically unchanged by the regulations to ensure that the agrees that centralized interim storage information in the paper, the USGS regulations continue to provide an would be an acceptable method for PSHA assessment is not expected to adequate level of safety for the shipment managing and storing SNF until a change. of spent fuel. These reviews account for repository is available, but determining Comment 21: A commenter believes changes in analytical methods, when DOE will take spent fuel and that the NRC, in judging the safety and materials, package contents, and GTCC wastes from reactor sites and how security of onsite storage for time operating history. The last periodic waste will then be managed are issues periods extending to the middle of the review confirmed that initial for DOE to resolve.

next century, should seriously consider transportation studies done in the 1970s The NRCs proposed update noted the safety of subsequent pick-up and (which are the basis for the NRCs that the issuance of a license for the PFS transport of the SNF. regulations) contained very conservative ISFSI confirmed the feasibility of NRC Response: The NRCs regulations assumptions and that the risk to the licensing an away-from-reactor ISFSI establish the safety standards for the public from transportation of spent fuel under 10 CFR Part 72, but also noted design, construction and use of spent is very low. See NUREG/CR-6672, that several issues would have to be fuel transportation packages. See 10 Reexamination of Spent Fuel Shipment resolved before the PFS ISFSI could be CFR part 71. The NRC conducts rigorous Risk Estimates, March 2000. The same built and operated (See 73 FR 59566; independent reviews to certify that robust design features that make spent October 9, 2008). Footnote 24 identified spent fuel transportation packages meet fuel packages safe also make them these issues as two approvals from the the design standards and test conditions secure from terrorist attack. Department of the Interior and a NAS in the regulations. In addition, the NRC Comment 22: The Decommissioning Report on the transportation of SNF in reviews and approves the operational Plant Coalition (DPC) noted that in 1990 the United States (National Research procedures and conditions for use of the the Commission expressed support for Council 2006, Going the Distance: The transport package. These requirements timely disposal of SNF and HLW and Safe Transport of [SNF and HLW] in the include maintenance of the transport stated that it did not intend to support United States). The footnote is not an package in full compliance with the storage of spent fuel for an indefinitely analysis of these issues; it simply NRC-approved package design and long period (See 55 FR 38482; acknowledges issues raised by the material conditions, and the September 18, 1990). The DPC urges the Department of the Interior and NAS that requirements include strict adherence to Commission to explicitly reaffirm this need to be addressed. With respect to the NRC-approved operating procedures position and, further, express its PFS, the DPC states: The Commission for the preparation for and loading of expectation that the Federal would do well to comment that it is the spent fuel transport package. The Government will soon provide a THE safe and secure licensed facility requirements for use of an NRC- demonstration that it can reach a that should be utilized to reduce waste approved spent fuel transport package consensus on a plan to take title to and confidence concerns. You can observe, apply irrespective of how long the spent remove SNF and Greater-Than-Class-C consistent with historical Commission fuel may have been in interim storage. (GTCC) waste from permanently shut- concerns about dual and multiple Packages that are designed, tested, down, single-site facilities. The DPC regulation, that legislation can effect a operated and maintained according to outlines the burdens imposed on reduction in the multiple and redundant mstockstill on DSKH9S0YB1PROD with RULES2 NRC requirements will provide for the decommissioned sites by continuing political and regulatory jurisdictions safe transport of spent fuel. Spent fuel long-term onsite storage, such as over use of such facilities. The license packages are very robust and are restricting the property owners and issued to PFS demonstrates that the designed to withstand severe accidents. other local stakeholders from other Commission believes that the facility Numerous studies and physical testing potential uses for the site. The National can be constructed and operated programs have demonstrated that the Association of Regulatory Utility without jeopardizing public health and safety standards that the NRC uses to Commissioners agrees with the NRC safety, but it is up to the licensee and VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81056 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations other agencies to resolve issues within threshold cost. TSEP believes it is not Section 302(a)(4) of NWPA, 42 U.S.C.

their purview that may block reasonable to assume that the present 10222 (2006). DOE has periodically construction of the facility. 1.0 mil per kWh fee will suffice to pay issued a total system cost estimate for for the U.S. repository program. the disposal program to provide a basis Issue 8: Miscellaneous Comments NRC Response: The Commissions for assessing the adequacy of the Comment 23: One commenter stated action of enlarging its generic fee.12 See, e.g., 2008 Fee Adequacy that the proposed rulemaking appears to determination in 10 CFR 51.23(a) by 30 Assessment Letter Report, (January 13, countenance the stranding of SNF at or years is not a licensing decision and 2009).

near plant sites for up to 150 years or does not give permission to reactor Comment 25: A commenter raised the more and contains no effective or licensees to store spent fuel that they do question of how the Commissions reasonable time frame in 20 or so years not already possess (or may not obtain) expectation that repository capacity can to revisit this matter, or to contain any under a 10 CFR Part 72 general or reasonably be expected to be available form of limitations, guidelines, or other specific license. See Response to within 50-60 years beyond the licensed provisions to ensure the ultimate safe Comment 6. Finding 4 only states the life for operation of any reactor would and proper disposal of SNF. Commissions reasonable assurance that be met in the case of the Humboldt Bay NRC Response: The Commission, in SNF can be stored safely and without 3 NPP which was decommissioned in its 1999 review of the Waste Confidence significant environmental impact for at 1976, meaning that 50 years beyond its Decision, stated that it would consider least 60 years beyond the licensed life decommissioning would be 2026. The undertaking a comprehensive for operation of any reactor, if commenter asked if this meant that SNF reevaluation of the Waste Confidence necessary. The NRC generally provides would be removed from Humboldt Bay Findings when the impending a Regulatory Analysis for actions that 3 by 2026 and, if so, what is the need repository development and regulatory would affect a change in the use of for amending Finding 2.

activities run their course or if resources by its licensees. Regulatory NRC Response: The commenter has significant and pertinent unexpected Analysis Guidelines of the U.S. Nuclear confused the end of operation of the events occur, raising substantial doubt Regulatory Commission, NUREG/BR- reactor with the end of the licensed life about the continuing validity of the 0058, 5 (September 2004). A Regulatory for operation. Humboldt Bay 3 was Waste Confidence Findings (See 64 FR Analysis may be appropriate when the issued a 40-year operating license in 68005; December 6, 1999). Although NRC is considering placing burdens on 1962. The end of its licensed life for those criteria have not triggered this its licensees through a licensing or operation, therefore, was 2002 and 50 update, it is apparent that the ultimate regulatory action (e.g., in the years beyond that would be 2052. Even disposition of the YM application is if a reactor is retired prematurely, prospective ISFSI security rulemaking),

uncertain. This update reflects the resulting in the need to manage and but that is not the case here. The NRC uncertainty regarding the ultimate grant store SNF for a longer period after the recognizes that many commenters are or denial of the YM license by end of reactor operation, the concerned about the burden placed on considering the possibility that the Commission is confident, for all the ratepayers charged by utilities for the license is not granted. For this reason, reasons expressed in reaching Findings cost of continued storage of SNF at termination of the YM program would 3 and 4, that the management and reactor sites and on taxpayers paying not be a basis for a further review of the storage of the SNF will be conducted the cost of DOEs default in failing to Waste Confidence Decision. However, if safely and securely without significant remove SNF from reactor sites as significant and pertinent unexpected impact to the environment.

events that raise substantial doubt about specified in DOEs contracts with the Comment 26: The Attorney General of the continuing validity of the Waste utilities. However, until DOE is able to New York submitted supplemental Confidence Findings occur, the fulfill its contracts, these burdens will comments, many of which are discussed Commission will consider undertaking exist irrespective of these updates to the above. These comments did, however, another review of the Waste Confidence Waste Confidence Decision and Rule; raise an issue that, although similar to Decision. Further, the Commission has and NRC licensees still have to comply other comments, the NRC is addressing directed the NRC staff to begin an EIS with the NRCs regulations, which here: Recent actions by the to consider the long-term (greater than continue to provide reasonable Commission, particularly since 2001, 120 years) storage of SNF and HLW and assurance that SNF and HLW will be have demonstrated that a significant to consider further rulemaking in stored safely. number of substantial environmental accordance with the findings of this The fee mandated by the NWPA that and safety issues related to indefinite review. The Commission will revisit the reactor licensees must pay into the storage of spent fuel at the site of criteria for reopening the Waste Nuclear Waste Fund to provide for shutdown nuclear reactors are specific Confidence Decision and Rule as part of eventual disposal of HLW and SNF has to the particular reactor and site and this longer-term effort. so far been more than adequate to cannot be addressed on a generic basis.

Comment 24: A commenter stated that support DOEs HLW program with More generally, the Attorney General the cost of the proposed rule change is approximately $25 billion in the Fund argues that there are environmental and only briefly and minimally discussed as of July 2010. See Statement of safety issues associated with spent fuel and expressed the view that there would Kristina M. Johnson, Undersecretary of storage (not just indefinite storage) that be significant costs to both ratepayers Energy, before the Committee on the and taxpayers stemming from storage of Budget, U.S. House of Representatives, 12 NRC is aware that there is a pending DC Circuit this waste for an additional 50 to 60 1 (July 27, 2010).11 Moreover, the caseNational Association of Regulatory Utility mstockstill on DSKH9S0YB1PROD with RULES2 years at plant sites. The commenter NWPA provides a mechanism for Commissioners v. DOE, Nos. 10-1074 and 10-1076 increasing the fee if the current fee (consolidated) (DC Cir.)where petitioners have recommended that the full cost of asked the court of appeals to suspend further implementing this rule be completely becomes inadequate to cover costs. See payments to the nuclear waste fund. The pending evaluated by the NRC under the NRCs DC Circuit litigation relates to Yucca Mountain-11 Congress must make annual appropriations for related developments. Whatever that litigations Regulatory Analyses Guidelines and the the HLW program from the Fund, so the amount outcome, DOEs fee-adjustment authority would requirements for assessing the impacts actually available to DOE in any given year is remain in the NWPA, available to be exercised in of proposed rules which have a certain dependent upon the amount appropriated. appropriate circumstances.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81057 are site and facility-specific and require to a site-specific analysis for all conclusion raises issues associated with therefore cannot be addressed through a sites. The 10 CFR 2.335 waiver process the Indian Point license renewal, this generic rulemaking. The Attorney is intended to address the circumstances rulemaking is not the appropriate venue General believes that the NRC could that the Attorney General claims are to raise these issues; the State should address these concerns by permitting present at Indian Point; and the raise these concerns in its capacity as a States to raise site-specific concerns adjudicatory proceeding for the Indian party to the Indian Point relicensing with respect to issues that are now Point license renewal, not this proceeding.

foreclosed by the Waste Confidence rulemaking, is the proper venue to raise As acknowledged in the Attorney Decision and Rule. these issues. Generals conclusion, the Commission NRC Response: The Attorney General Comment 27: The Attorney General of discussed the relationship between the is correct that there may be some issues New Yorks supplemental comments YM repository and the draft final that cannot be addressed through a raised two new conclusions to support updates to the Waste Confidence generic process like the Waste its original comments: Decision and Rule in the attachments to Confidence Decision. The Commission Subsequent to 2001, the Commission has SECY-09-0090. In these documents (the has long recognized this, even in cases abandoned any attempt to treat safety and draft final Decision and Rule), the where issues are resolved through a environmental issues associated with spent Commission discussed how the Waste generic rulemaking. Site-specific fuel storage at reactor sites on a generic basis. Confidence Decision and Rule assume circumstances may require a site- Rather, the Commission, operating through that YM will not be opened as a specific analysis; the Commission has its regulatory staff, has ordered repository. This conclusion continues in provided for these situations through its implementation of site-specific mitigation these documents: The Waste Confidence regulations in 10 CFR 2.335, which measures for each reactor to address concerns with spent fuel storage. NRC has Decision and Rule assume that YM is allows parties to adjudicatory acknowledged that there are differences in not an option. As the Commission states proceedings to petition for the waiver of spent fuel pool designs and capabilities. NRC throughout this document and has or an exception to a rule in a particular has also required the implementation of site- stated on multiple occasions, the proceeding. These requests require the specific mitigation measures in response to availability of the YM repository has no petitioning party to demonstrate that Congressional directives to NRC to develop bearing on the outcome of this special circumstances exist so that the site-specific analyses and measures for each rulemaking or update to the Waste application of the rule or regulation spent fuel pool. Moreover, while these mitigation measures have been the subject of Confidence Decision.

would not serve the purposes for which extensive discussion between NRC and Evaluation of Waste Confidence the rule or regulation was adopted. industry, their details have not been Further, in the case of license renewal Findings disclosed to the States, and there has not proceedings, the licensee is required to been any opportunity for public input Having considered and addressed the look for and identify new and regarding the adequacy of the measures being comments received on the significant information that would put taken or even whether measures are being Commissions proposed updates to the the facility outside of the generic taken to address all the potential Waste Confidence Decision and Rule, assessment in the GEIS for license environmental and safety issues associated the Commission now reexamines the renewal; the NRC staff also looks for with spent fuel storage at reactors sites or whether more effective alternatives are 1984 and 1990 bases for its findings and new and significant information as part supplements those bases with an available.

of its review. If no new and significant evaluation of events and issues that information is found, the staff concludes And have arisen since 1990 and affect the that the issue is generic and within the Previous indications that the Yucca findings.

environmental impacts of the GEIS. Mountain waste repository would never With respect to the ongoing Indian Point come to fruition have now become more Table of Contents license renewal proceeding, where the certain as the funding for the program has I. Finding 1: The Commission finds State of New York is a party, and has been removed from the proposed federal reasonable assurance that safe disposal budget and DOE staff have publicly stated of high-level radioactive waste and spent raised similar issues in the context of that the project will not go forward. fuel in a mined geologic repository is that proceeding, the license renewal proceeding is the proper venue in which NRC Response: Contrary to the States technically feasible.

assertion, the NRC continues to treat A. Bases for Finding 1 to seek a waiver to the Waste some issues associated with spent fuel B. Evaluation of Finding 1 Confidence Rule. If the State believes II. Finding 2 (1990): The Commission finds that there are site-specific issues storage on a generic basis; the reasonable assurance that at least one associated with the Indian Point license Commissions approval of these updates mined geologic repository will be renewal proceeding, the State should to the Waste Confidence Decision and available within the first quarter of the seek a waiver of the rule through that Rule are evidence of that fact. To the twenty-first century, and that sufficient proceeding using the procedures in 10 extent that the Attorney Generals repository capacity will be available CFR 2.335.13 But the potential that one comments relate to the license renewal within 30 years beyond the licensed life process at Indian Point, the Commission for operation (which may include the or more sites might not fall under the term of a revised or renewed license) of generic determination in the Waste has a process in place to ensure that any reactor to dispose of the commercial Confidence Decision and Rule is not generic issues at specific sites under high-level radioactive waste and spent sufficient reason for the Commission to review for license renewal are, in fact, fuel originating in such reactor and generic. Although spent fuel storage is generated up to that time.

13 On July 8, 2010, the Commission directed the a Category 1 (generic) issue and does not A. Bases for Finding 2 mstockstill on DSKH9S0YB1PROD with RULES2 ASLB to deny admission of two new contentions require a site-specific evaluation, the B. Evaluation of Finding 2 regarding waste confidence in the Indian Point C. Finding 2 proceeding. The Commission explained that it has licensee and the staff both evaluate these generic issues to ensure that there III. Finding 3: The Commission finds been longstanding policy to preclude initiating reasonable assurance that HLW and litigation on issues that will soon be resolved is no new and significant information spent fuel will be managed in a safe generically. See In the Matter of Entergy Nuclear that would require a site-specific Operations, Inc. (Indian Point Nuclear Generating manner until sufficient repository Units 2 and 3), CLI-10-19, 2010 WL 2753785 analysis for these issues. To the extent capacity is available to assure the safe (2010). that the rest of the Attorney Generals disposal of all HLW and spent fuel.

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81058 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations A. Bases for Finding 3 As initially enacted, the Nuclear Commission noted that the 1987 B. Evaluation of Finding 3 Waste Policy Act of 1982 directed DOE amendment of the Nuclear Waste Policy IV. Finding 4 (1990): The Commission finds to issue guidelines for the Act of 1982, which focused solely on reasonable assurance that, if necessary, recommendation of sites and then to the YM site, could cause considerable spent fuel generated in any reactor can be stored safely and without significant nominate at least five sites as suitable delay in opening a repository if that site environmental impacts for at least 30 for site characterization for selection as were found not suitable for licensing.

years beyond the licensed life for the first repository site and, not later But the possibility of that delay did not operation (which may include the term than January 1, 1985, to recommend undermine the Commissions of a revised or renewed license) of that three of those sites to the President for confidence that a technically acceptable reactor at its spent fuel storage basin, or characterization as candidate sites. site would be located, either at YM or at either onsite or offsite independent elsewhere. The Commission observed Nuclear Waste Policy Act of 1982, § 112, spent fuel storage installations.

96 Stat. 2201 (1983) (current version at that the NRC staff had provided A. Bases for Finding 4 B. Evaluation of Finding 4 42 U.S.C. 10132 (2006)). Not later than extensive comments on DOEs draft C. Finding 4 July 1, 1989, DOE was to again nominate environmental assessments of the nine V. Finding 5: The Commission finds five sites and recommend three of them sites it had identified as being reasonable assurance that safe, to the President for characterization for potentially acceptable and on the final independent onsite spent fuel storage or selection as the second repository. Id. environmental assessments for the five offsite spent fuel storage will be made DOE was then to carry out site sites nominated.14 The NRC had not available if such storage capacity is identified any fundamental technical needed. characterization activities for the approved sites. Nuclear Waste Policy flaws or disqualifying factors that would A. Bases for Finding 5 B. Evaluation of Finding 5 Act of 1982, § 113, 96 Stat. 2201 (1983) render any of the sites unsuitable for (current version at 42 U.S.C. 101323 characterization or potentially I. Finding 1: The Commission Finds (2006)). Following site characterization, unlicenseable, although the NRC noted Reasonable Assurance That Safe DOE was to recommend sites to the that many issues would need to be Disposal of High-Level Radioactive President as suitable for development as resolved during site characterization for Waste and Spent Fuel in a Mined repositories and the President was to YM or any other site (55 FR 38486; Geologic Repository Is Technically recommend one site to the Congress by September 18, 1990).

Feasible March 31, 1987, and another site by With respect to the development of A. Bases for Finding 1 March 31, 1989, for development as the effective waste packages, the first two repositories. Nuclear Waste Commission, in 1984, reviewed DOEs The Commission reached this finding scientific and engineering program on in 1984 and reaffirmed it in 1990. The Policy Act of 1982, § 114, 96 Stat. 2201 (1983) (current version at 42 U.S.C. this subject. The Commission also focus of this finding is on whether safe considered whether the possibility of disposal of HLW and SNF is technically 10134 (2006)). States and affected Indian tribes were given the opportunity renewed reprocessing of SNF could possible using existing technology and affect the technical feasibility of the without a need for any fundamental to object, but if the recommendations were approved by Congress, DOE was to waste package because it would need to breakthroughs in science and consider waste form other than spent technology. To reach this finding, the submit applications for a construction authorization to the NRC. Id. The NRC fuel. The Commission concluded that Commission considered the basic the studies by DOE and others features of a repository designed for a was given until January 1, 1989, to reach demonstrated that the chemical and multi-barrier system for waste isolation a decision on the first application, and physical properties of SNF and HLW and examined the problems that the until January 1, 1992, on the second.

can be sufficiently understood to permit DOE would need to resolve as part of a The Commission was directed to the design of a suitable waste package final design for a mined geologic prohibit the emplacement in the first and that the possibility of commercial repository. The Commission identified repository of more than 70,000 MTHM reprocessing would not substantially three major technical problems: (1) The until a second repository was in affect this conclusion (49 FR 34671; selection of a suitable geologic setting as operation. Id. The NWPA, inter alia, August 31, 1984). In 1990, the host for a technically acceptable restricted site characterization solely to Commission reviewed DOEs continued repository site; (2) the development of a site at Yucca Mountain, NV (YM) and research and experimentation on waste waste packages that will contain the terminated the program for a second packages, which primarily focused on waste until the fission products are repository. The NWPA provided that if work in Canada and Sweden. The NRC greatly reduced; and (3) the DOE at any time determines Yucca noted that the DOE had narrowed the development of engineered barriers, Mountain to be unsuitable for range of waste package designs to a such as backfilling and sealing of the development as a repository, DOE must design tailored for unsaturated tuff 15 at drifts and shafts of the repository, which report to Congress its recommendations the YM site due to the 1987 redirection can effectively retard migration of for further action to ensure the safe, of the HLW program. The NRC also radionuclides out of the repository (49 permanent disposal of SNF and HLW, noted that some reprocessing wastes FR 34667; August 31, 1984). including the need for new legislation. from the defense program and the West DOEs selection of a suitable geologic Section 113 of NWPA, 42 U.S.C. 10133 Valley Demonstration Project were now setting is governed by the NWPA. DOE (2006).

explored potential repository sites In 1984, the Commission reviewed 14 Under the program established by the initial before the NWPA was enacted, but that DOEs site exploration program and NWPA, DOE had nominated sites at Hanford WA, mstockstill on DSKH9S0YB1PROD with RULES2 Act set in place a formal process and concluded that it was providing Yucca Mountain, NV, Deaf Smith County, TX, Davis Canyon, UT, and Richton Dome, MS, and had schedule for the development of two information on site characteristics at a recommended the first 3 sites for site geologic repositories. The following sufficiently large number and variety of characterization.

brief summary of key provisions of this sites and geologic media to support the 15 Tuff is a type of rock consisting of successive Act may assist readers in understanding expectation that one or more technically layers of fine-grained volcanic ash. See DOE/RW-0573, Rev. 0 Yucca Mountain Repository GI.

DOEs process for locating a suitable acceptable sites would be identified (49 (ADAMS Accession Numbers ML081560408, geologic setting. FR 34668; August 31, 1984). In 1990, the ML081560409, and ML081560410).

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81059 anticipated to be disposed of in the Lessons Learned from Ten Performance of SNF and HLW in a geologic repository. The NRC remained confident Assessment Studies, 1997. Specific repository. Although the 1987 that, given a range of waste forms and sites have been investigated and amendments to NWPA barred DOE from conservative test conditions, the extensive experience has been gained in continuing site investigations technology is available to design underground engineering. IAEA, elsewhere, the U.S. Congresss decision acceptable waste packages (55 FR Radioactive Waste Management to focus solely on YM was not based on 38489; September 18, 1990). Studies and Trends, IAEA/WMDB/ST/ any finding that any of the other sites With respect to the development of 4, 2005; IAEA, The Use of Scientific were unsuitable for technical reasons; effective engineered barriers, the and Technical Results from rather, the decision was aimed at Commissions confidence in 1984 rested Underground Research Laboratory controlling the costs of the HLW upon its consideration of DOEs ongoing Investigations for the Geologic Disposal program (55 FR 38486; September 18, research and development activities of Radioactive Waste, IAEA-TECDOC- 1990).

regarding backfill materials and 1243, 2001. These advances and others Repository programs in other borehole and shaft sealants, which led throughout the world continue to countries, which could inform the U.S.

the Commission to conclude that these confirm the soundness of the basic program, are actively considering activities provided a basis for reasonable concept of deep geologic disposal. crystalline rock, clay, and salt assurance that engineered barriers can IAEA, Joint Convention on Safety of formations as repository host media.

be developed to isolate or retard Spent Fuel Management and on Safety IAEA, Radioactive Waste Management radioactive material released by the of Radioactive Waste Management, Status and Trends, IAEA/WMDB/ST/4, waste package (49 FR 34671; August 31, INFCIRC/546, 1997. 2005; IAEA, The Use of Scientific and 1984). In 1990, although DOEs research In the United States, the technical Technical Results from Underground had narrowed to focus on YM, the approach for safe HLW disposal has Research Laboratory Investigations for Commission continued to have remained unchanged for several the Geologic Disposal of Radioactive confidence that backfill or packing decades: Use a deep geologic repository Waste, IAEA-TECDOC-1243, 2001.

materials can be developed as needed containing natural barriers to hold Many of these programs have researched for the underground facility and waste canisters of HLW with additional these geologic media for several package and that an acceptable seal can engineered barriers to further retard decades. Although there are relative be developed for candidate sites in radionuclide release. Although some strengths to the capabilities of each of different geologic media (55 FR 38489- elements of this technical approach these potential host media, no geologic 38490; September 18, 1990). have changed in response to new media previously identified as a knowledge (e.g., engineered backfill was candidate host, with the exception of B. Evaluation of Finding 1 removed as a design concept for YM in salt formations for SNF, has been ruled Today, the scientific and technical the late 1990s in response to enhanced out based on technical or scientific community engaged in waste understandings of heat and water information. Salt formations are being management continues to have high transfer processes in the near-field drift considered as hosts only for reprocessed confidence that safe geologic disposal is environment), safe disposal still appears nuclear materials because heat-achievable with currently available to be feasible with current technology. generating waste, like SNF, exacerbates technology. See, e.g., National Research In 1998, DOE conducted assessments for a process by which salt can rapidly Council, Technical Bases for Yucca long-term performance of a potential deform. This process could cause Mountain Standards, 1995. No repository at YM (DOE/RW-0508, problems with keeping drifts stable and insurmountable technical or scientific Viability Assessment) and 2002 (DOE/ open during the operating period of a problem has emerged to disturb this RW-0539, Site Recommendation). repository.

confidence that safe disposal of SNF These assessments used existing In 2001, the NRC amended its and HLW can be achieved in a mined technology and available scientific regulations to include a new 10 CFR geologic repository. To the contrary, information and did not identify areas part 63, Disposal of High-Level there has been significant progress in where fundamental breakthroughs in Radioactive Wastes in a Geologic the scientific understanding and science or technology were needed to Repository at Yucca Mountain, Nevada, technological development needed for support safe disposal. (66 FR 55732; November 2, 2001).

geologic disposal over the past 18 years. With respect to the issue of Part 63 requires use of both natural There is now a much better identifying a suitable geologic setting as and engineered barriers to meet overall understanding of the processes that host for a technically acceptable site, total system performance objectives affect the ability of repositories to DOE made its suitability determination without pre-determined subsystem isolate waste over long periods. Id. at for the YM site in 2002. On June 3, performance requirements, which are 71-72; International Atomic Energy 2008, DOE submitted the application for required in 10 CFR part 60.16 Agency (IAEA), Scientific and construction authorization to the NRC Accordingly, U.S. research and Technical Basis for the Geologic and on September 8, 2008, NRC staff development activities have focused on Disposal of Radioactive Wastes, notified DOE that it found the understanding the long-term capability Technical Reports Series No. 413, 2003. application acceptable for docketing (73 of natural and engineered barriers, The ability to characterize and FR 53284; September 15, 2008). which can prevent or substantially quantitatively assess the capabilities of Whether YM is technically acceptable reduce the release rate of radionuclides geologic and engineered barriers has must await the outcome of an NRC been repeatedly demonstrated. NRC, licensing proceeding, which, if 16 NRCs regulations at 10 CFR part 63 apply only mstockstill on DSKH9S0YB1PROD with RULES2 Disposal of High-Level Radioactive completed, would rule on the technical to the proposed repository at YM. NRCs regulations at 10 CFR part 60, Disposal of High-Level Wastes in a Proposed Geologic acceptability of a repository at YM. Even Radioactive Wastes in Geologic Repositories, Repository at Yucca Mountain, Nevada; if DOE does not construct a repository govern the licensing of any repository other than Proposed Rule, (64 FR 8640, 8649; at YM, this would not change the fact one located at YM. However, at the time part 63 was proposed, the Commission indicated it would February 22, 1999); Organization for that the Commission continues to have consider revising Part 60 if it seemed likely to be Economic Cooperation and reasonable assurance that the used in the future. (64 FR 8640, 8643; February 22, Development, Nuclear Energy Agency, technology exists today to safely dispose 1999).

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81060 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations from a potential repository system. thermal, and criticality constraints comments, the Commission reaffirms Although the performance of individual could conceivably require a design Finding 1.

barriers may change over time, the modification to disposal containers from II. Finding 2 (1990): The Commission overall performance of the total system those currently proposed for YM.

Finds Reasonable Assurance That at is required to be acceptable throughout Nevertheless, the technical Least One Mined Geologic Repository the performance period of the requirements for disposal of advanced Will Be Available Within the First repository. In this context of total reactor components appear similar to Quarter of the Twenty-First Century, system performance, research and the requirements for disposal of and That Sufficient Repository development has found that it appears components for current light-water Capacity Will Be Available Within 30 technically possible to design and reactors. For example, DOE had planned Years Beyond the Licensed Life for construct a waste package and an to dispose of spent fuel at YM from both Operation (Which May Include the engineered barrier system that, in gas-cooled (Peach Bottom 1) and liquid- Term of a Revised or Renewed License) conjunction with natural barriers, could metal cooled (Fermi 1) reactors, using of Any Reactor To Dispose of the prevent or substantially reduce the the same basic technological approach Commercial High-Level Radioactive release rate of radionuclides from a as for SNF from light-water reactors. Waste and Spent Fuel Originating in potential repository system during the Although radionuclide inventory, fuel Such Reactor and Generated Up to That performance period. NRC, Disposal of matrix, and cladding characteristics for Time High-Level Radioactive Wastes in a advanced fuels might be different from Proposed Geologic Repository at Yucca current light-water reactors, the safe A. Bases for Finding 2 Mountain, Nevada; Proposed Rule, (64 disposal of advanced fuel appears to In the 1984 and 1990 Waste FR 8649; February 22, 1999); IAEA, involve the same scientific and Confidence Decisions, the dual Joint Convention on Safety of Spent engineering knowledge as used for fuel objectives of this finding were to predict Fuel Management and on Safety of from current light-water reactors. when a repository will be available for Radioactive Waste Management, There is currently a high uncertainty use and to predict how long spent fuel INFCIRC/546, 1997. regarding the growth of advanced may need to be stored at a reactor site Since the Commission last considered reactors in the U.S. In the licensing until repository space is available for Waste Confidence, the NRC has issued strategy included in a joint report to the spent fuel generated at that reactor.

design certifications for new reactors Congress in August 2008 from the NRC With respect to the first prediction, the under its regulations at 10 CFR part 52, and the DOE for the next generation Commissions focus in 1984 was on the Early Site Permits; Standard Design years 2007-2009the years during nuclear plant (NGNP) program, the Certifications; and Combined Licenses which the operating licenses for the agencies found that an aggressive for Nuclear Power Plants, and is Vermont Yankee 17 and Prairie Island 18 licensing approach may lead to currently reviewing several plant nuclear power plants would expire.19 In operation of a prototype facility in 2021.

designs in response to applications for 1984, DOE anticipated that the first (ADAMS Accession Number design certifications. The NRC is also repository would begin operation in ML082290017). Based on comparison considering COL applications for 1998 and the second in 2004. But the with current disposal strategies for fuel nuclear power plants that reference NRC concluded that technical and from existing gas cooled or liquid-metal these certified and under-review institutional uncertainties made it cooled reactors, the NRC is confident designs. These facilities would use the preferable to focus on the 2007-2009 same or similar fuel assembly designs as that current technology is adequate to support the safe disposal of spent fuel time period. The technical uncertainties the nuclear power plants currently involved how long it would take DOE to operating in the United States. If these from a potential prototype facility.

Small modular light-water reactors locate a suitable geologic setting for a new facilities use a new fuel type or potentially technically acceptable different cladding, then it may be being developed will use fuel very similar in form and materials to the repository and how long it would take necessary to modify the design of a to develop an appropriate waste package repository to accommodate these existing operating reactors and will not, changes. But if limited reliance is therefore, introduce new technical 17 The Commission amended Vermont Yankees placed on the barrier capabilities of challenges to the disposal of spent fuel.

operating license on January 23, 1991, to extend the cladding or fuel type to comply with In addition to the NGNP activities expiration date of the license to 2012. (56 FR 2568; repository safety requirements, then related to the prototype reactor, various January 24, 1991). Vermont Yankee has applied for activities, such as DOEs Fuel Cycle a license renewal, which is being reviewed by the minimal design changes may be needed Commission and would extend the plants to accommodate new types of SNF or Research and Development Program, are operating license for 20 years. http://www.nrc.gov/

cladding. As such, the new reactor underway to evaluate fuel cycle reactors/operating/licensing/renewal/

designs and specific license alternatives that could affect the volume applications.html (last visited September 15, 2010).

18 The Commission amended Prairie Island 1 and applications currently under review and form of waste from the prototype 2s operating licenses on September 23, 1986, to would not raise issues as to the reactor or other nuclear reactor designs. extend the expiration date of the licenses to August technical feasibility of repository The need to consider waste disposal as 9, 2013, and October 29, 2014 (ADAMS Accession disposal. part of the overall research and Number ML022200335). Prairie Island 1 and 2 have development activities for advanced applied for license renewals, which are being The NRC is also engaged in reviewed by the Commission and would extend the preliminary interactions with DOE and reactors is recognized and included in plants operating licenses for 20 years. http://

possible reactor vendors proposing the activities of designers, the DOE, and www.nrc.gov/reactors/operating/licensing/renewal/

advanced reactor designs that are the NRC. See, e.g., DOE Nuclear Energy applications.html (last visited September 15, 2010).

mstockstill on DSKH9S0YB1PROD with RULES2 19 Under the court remand that precipitated the different from the currently operating Research Advisory Committee and the initial waste confidence review, NRC was required light-water reactors. Some of these Generation IV International Forum, A to consider whether there was reasonable assurance advanced reactors use gas-cooled or Technology Roadmap for Generation IV that an offsite storage solution would be available liquid metal cooled technologies and Nuclear Energy Systems, December by the years 2007-2009 and, if not, whether there 2002. was reasonable assurance that the spent fuel could have fuel and reactor components that be stored safely at those sites beyond those dates.

might require different transportation Based on the above discussion, See State of Minnesota v. NRC, 602 F.2d 412, 418 and storage containers. Geometric, including its response to the public (DC Cir. 1979).

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81061 and engineered barriers. The YM was suitable for development of a Commission noted that almost all Commission expressed the view that repository by the year 2000. The reactor licenses would not expire until despite early delays, DOEs program was Commission was unwilling to assume sometime in the first three decades of on track and, under the impetus given that DOE would make a finding of the twenty-first century and license by the recently-enacted NWPA, would suitability (which would be necessary renewal was expected to extend the timely resolve the technical problems for a repository to be available by 2010). terms of some of these licenses. Thus, a (49 FR 34674-34675; August 31, 1984). To establish a new time frame for repository was not needed by 2007-The Commission also identified repository availability, the Commission 2009 to provide disposal capacity institutional uncertainties that needed made the assumption that DOE would within 30 years beyond expiration of to be resolved: (1) Measures for dealing find the YM site unsuitable by the year most operating licenses.20 The with Federal-state disputes; (2) An 2000 and that (as DOE had estimated) it Commission acknowledged, however, assured funding mechanism that would would take 25 years for a repository to that it appeared likely that two be sufficient over time to cover the become available at a different site. The repositories would be needed to dispose period for developing a repository; (3) Commission then considered whether it of all the SNF and HLW from the An organizational capability for had sufficient bases for confidence that current generation of reactors unless managing the HLW program; and (4) A a repository would be available by 2025 Congress provided statutory relief from firm schedule and establishment of using the same technical and the 70,000 MTHM limit for the first responsibilities. The Commission institutional criteria it had used in 1984. repository and unless the first repository expressed its confidence in the ability of The Commission found no reason to had adequate capacity to hold all the the provisions of the then recently- believe that another potentially SNF and HLW generated. This was passed NWPA to timely resolve these technically acceptable site could not be because DOEs 1990 spent fuel uncertainties (49 FR 34675-34679; located if the YM site were found projections, which assumed that no new August 31, 1984). unsuitable. The development of a waste reactors would be constructed, called With respect to the second prediction, package and engineered barriers was for 87,000 MTHM to be generated by the NRC reviewed DOEs estimates of tied to the question of the suitability of 2036. The Commission believed that the amount of installed generating the YM site, but the NRC found no that assumption probably capacity of commercial nuclear power reason to believe that a waste package underestimated the expected total spent plants in the year 2000 and concluded and engineered barriers could not be fuel discharges due to the likelihood of that the total amount of spent fuel that developed for a different site by 2025, reactor license renewals.

would be produced during the operating if necessary (55 FR 38495; September Further, the Commission expressed lifetimes of these reactors would be 18, 1990). the belief that if the need for a second about 160,000 MTHM. To accommodate The institutional uncertainties were repository was established, Congress this volume of spent fuel, the NRC perhaps more difficult to calculate. The would provide the needed institutional assumed that two repositories would be Commission acknowledged that DOEs support and funding, as it had for the needed. The NRC calculated that if the efforts to address the concerns of states, first repository.21 The Commission first repository began to receive SNF in local governments, and Indian tribes reasoned that if work began on the 2005 and the second in 2008, then all had met with mixed results. second repository program in 2010, that the SNF would be emplaced by about Nevertheless, the Commission retained repository could be available by 2035.

2026. This would mean that sufficient its confidence that NWPA had achieved Two repositories available in repository capacity would be available the proper balance between providing approximately 2025 and 2035, each within 30 years beyond the expiration of for participation by affected parties and with acceptance rates of 3400 MTHM/

any reactor license for disposal of its providing for the exercise of year within several years after SNF (49 FR 34679; August 31, 1984). Congressional authority to carry out the commencement of operations, would In reviewing these predictions in national program for waste disposal (55 provide assurance that sufficient 1990, the Commission faced a FR 38497; September 18, 1990). repository capacity will be available considerably changed landscape. First, Similarly, the Commission believed that within 30 years of operating license DOEs schedule for the availability of a management and funding issues had expiration for reactors to dispose of the repository had slipped several times so been adequately resolved by NWPA and spent fuel generated at their sites up to that its then-current projection was would not call into question the that time. The Commission concluded 2010. Second, Congresss 1987 availability of a repository by 2025 (55 that a second repository, or additional amendment of NWPA had confined site FR 38497-38498; September 18, 1990). capacity at the first repository, would be characterization to the YM site, meaning Thus, except for the schedule, the that there were no back-up sites being Commission was confident that the 20 NRC identified Dresden 1, licensed in 1959, as characterized in case the YM site was HLW program set forth in the NWPA the earliest licensed power reactor and noted that found unsuitable or unlicenseable. 30 years beyond its licensed life for operation would ultimately be successful. would be 2029 and that it was possible, if a Finally, site characterization activities at The Commission also considered repository were to become available by 2025, for all YM had not proceeded without whether the termination of activities for the Dresden 1 SNF to be removed from that facility problems, notably in DOEs schedule for a second repository, combined with the by 2029 (55 FR 38502; September 18, 1990).

21 DOE was statutorily required to report to the subsurface exploration and in 70,000 MTHM limit for the first President and to Congress on the need for a second development of its quality assurance repository, together with its new repository between January 1, 2007, and January 1, program. Given these considerations, projection of 2025 as the date for the 2010. Section 161 of NWPA, 42 U.S.C. 10172a. DOE the Commission found it would not be availability for a repository, undermined submitted the report to Congress in December 2008.

mstockstill on DSKH9S0YB1PROD with RULES2 The report recommended that Congress remove the prudent to reaffirm its confidence in the its assessment that sufficient repository 70,000 MTHM limit for the YM repository, but availability of a repository by 2007- capacity would be available within 30 Congress has not yet responded to the 2009 (55 FR 38495; September 18, years beyond expiration of any reactor recommendation. The Report to the President and 1990). operating license to dispose of the SNF the Congress by the Secretary of Energy on the Need for a Second Repository, 1, (2008) available at Instead, the Commission found that it originating in such reactor and http://www.energy.gov/media/

would be reasonable to assume that generated up to that time (55 FR 38501- Second_Repository_Rpt_120908.pdf (last visited DOE could make its finding whether 38504; September 18, 1990). The October 16, 2010).

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81062 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations needed only to accommodate the The DOE made its suitability adjudicatory proceeding. That commitment is additional quantity of spent fuel determination in early 2002 and found not jeopardized by the 2025 date for generated during the later years of the YM site suitable for development as repository availability. The Commission did a repository.23 Although DOEs not see any threat to its ability to be an reactors operating under a renewed impartial adjudicator in 1990 when it license. The Commission stated that the application for a construction selected the 2025 date even though then, as availability of a second repository authorization for a repository was now, a repository could only become would permit spent fuel to be shipped considerably delayed from the schedule available if the Commissions decision is offsite well within 30 years after set out in the NWPA,24 on June 3, 2008, favorable. Should the Commissions decision expiration of these reactors operating the DOE submitted the application to be unfavorable and should DOE abandon the licenses and that the same would be the NRC and on September 8, 2008, the site, the Commission would need to true of the spent fuel discharged from NRC staff notified the DOE that it found reevaluate the 2025 availability date, as well any new generation of reactor designs the application acceptable for docketing as other findings made in 1990. State of Nevada; Denial of a Petition for Rulemaking (55 FR 38503-38504; September 18, (73 FR 53284; September 15, 2008).

(70 FR 48329, 48333; August 17, 2005);

1990). Although the licensing proceeding for affirmed, Nevada v. NRC, 199 Fed. Appx. 1 The Commission acknowledged that the YM repository is ongoing, DOE and (DC Cir., Sept. 22, 2006).

there were several licenses that had the Administration have made it clear that they do not support construction of In the absence of an unfavorable NRC been prematurely terminated where it Yucca Mountain. On March 3, 2010, the decision or DOEs abandonment of the was possible that SNF would be stored DOE filed its Notice of Withdrawal with site, the Commission found no reason to more than 30 years beyond the effective the Atomic Safety and Licensing Board reopen its Waste Confidence Decision.

expiration of the license and that there (ASLB) that is presiding over the Yucca Now that it appears uncertain whether could be more of these premature Mountain licensing proceeding the YM project will ever be constructed, terminations. But the Commission (ADAMS Accession Number the Commission would have adequate remained confident that in these cases ML100621397). On June 29, 2010, the reasons to reopen the Waste Confidence the overall safety and environmental ASLB denied the Departments motion; Decision; but the Commission, in any impacts of extended spent fuel storage and on June 30, 2010, the Secretary of event, had already decided to revisit its would be insignificant. The Commission the Commission invited the parties to decision before DOE filed its motion to found that spent fuel could be safely file briefs regarding whether the withdraw.

stored for at least 100 years (Finding Commission should review, reverse, or The initial decision to revisit the

4) 22 and that spent fuel in at-reactor uphold the ASLBs decision (ADAMS Waste Confidence Decision was storage would be safely maintained Accession Numbers ML101800299 and supported by the recommendations of until disposal capacity at a repository ML101810432). The Commission has the Combined License Review Task was available (Finding 3). The not yet issued its decision. Force Report. In its June 22, 2007 SRM Commission emphasized that it had not In 2005, the State of Nevada filed a on that report, the Commission identified a date by which a repository petition for rulemaking with the NRC approved rulemaking to resolve generic must be available for health and safety (PRM-51-8) that questioned whether issues associated with combined license reasons. Under the second part of continued use of the 2025 date, in effect, applications. SRM-COMDEK-07-0001/

Finding 2, safe management and safe indicated prejudgment of the outcome COMJSM-07-0001Report of the storage would not need to continue for of any licensing proceeding that might Combined License Review Task Force more than 30 years beyond expiration of be held. The Commission rejected this (ADAMS Accession Number any reactors operating license because notion in its denial of the petition: ML071760109). In a subsequent SRM, sufficient repository capacity was issued on September 7, 2007, the expected to become available within Even if DOEs estimate as to when it will tender a license application should slip Commission expressed the view that a those 30 years (55 FR 38504; September further, the 2025 date would still allow for near-term update to the Waste 18, 1990).

unforeseen delays in characterization and Confidence Findings was appropriate.

B. Evaluation of Finding 2 licensing. It also must be recognized that the SRMPeriodic Briefing on New Reactor Commission remains committed to a fair and Issues (ADAMS Accession Number As explained previously, the comprehensive adjudication and, as a result, ML072530192). The staff, in its response Commission based its estimate in there is the potential for the Commission to to these SRMs, recognized that there 1990that at least one geologic deny a license for the Yucca Mountain site would likely be long-term inefficiencies repository would be available within the based on the record established in the in combined license application first quarter of the twenty-first century proceedings due to the need to respond 23 On February 14, 2002, the Secretary of Energy on an assumption that DOE would make to potential questions and petitions recommended the YM site for the development of its suitability determination under a repository to the President thereby setting in directed to the existing Waste section 114 of NWPA around 2000. To motion the approval process set forth in sections Confidence Decision and committed to avoid being put in the position of 114 and 115 of the NWPA. See 42 U.S.C.

evaluate possible updates to the assuming the suitability of the YM site, 10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2)

(2006). On February 15, 2002, the President decision.25 See Memorandum from Luis the Commission then assumed that DOE recommended the site to Congress. On April 8, would find that site unsuitable and, as 2002, the State of Nevada submitted a notice of 25 Challenges to 10 CFR 51.23 in individual COL DOE had estimated, that it would take disapproval of the site recommendation to which proceedings would likely be addressed through 25 years before a repository could Congress responded on July 9, 2002, by passing a application of 10 CFR 2.335, Consideration of joint resolution approving the development of a Commission rules and regulations in adjudicatory become available at an alternate site.

mstockstill on DSKH9S0YB1PROD with RULES2 repository at YM, which the President signed on proceedings. This rule generally prohibits attacks July 23, 2002. See Public Law 107-200, 116 Stat. on NRC rules during adjudicatory proceedings, but 22 The Commission conservatively assumed that 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. does allow a party to an adjudicatory proceeding to licenses would be renewed for 30-year terms (55 FR IV 2004)). petition that application of a specified rule be 38503; September 18, 1990). Thus, the initial 40- 24 Section 114(b) of NWPA directs the Secretary waived or an exception made for the particular year term of the operating license, plus 30 years for of Energy to submit a construction authorization proceeding. 10 CFR 2.335(b). The sole grounds for the renewed operating license term and 30 years application to NRC within 90 days of the date the a waiver or exception is that special circumstances beyond the expiration of the renewed license site designation becomes effective. 42 U.S.C. with respect to the subject matter of the particular amounts to storage for at least 100 years. 10134(b). proceeding are such that the application of the rule VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81063 A. Reyes, Executive Director for preferred course of action. Further, the to construct a repository. Further, given Operations, to the Commissioners, NWPA still mandates a national the ongoing activities of the Blue-Rulemakings that Will Provide the repository program, and until the law is Ribbon Commission, events in other Greatest Efficiencies to Complete the changed disposal in a repository countries, the viability of safe long-term Combined License Application Reviews remains the controlling policy. But if storage for at least 60 years (and perhaps in a Timely Manner, December 17, the Blue Ribbon Commission were to longer) after reactor licenses expire, and 2007, at 3 (ADAMS Accession Number recommend an option that does not the Federal Governments statutory ML073390094). involve eventual geologic disposal of obligation to develop a HLW repository, Based upon these and more recent waste in a repository and the Congress the Commission has confidence that a developments, undertaking a public were to amend the NWPA to change the repository will be made available well rulemaking proceeding now to consider national policy, then the Commission before any safety or environmental revisions to the Waste Confidence would likely have to revisit the Waste concerns arise from the extended Decision and Rule is appropriate and Confidence Decision. storage of spent nuclear fuel and high-has allowed sufficient time to conduct One possible approach to revising level waste. In other words, a repository a studied and orderly reassessment and Finding 2 might be to set the expected will be available when necessary.

to revise and update the findings and availability of a new repository at a time It must be emphasized that the rule. In particular, the Commission has around 25 years after the conclusion of removal of a target date from Finding 2 been able to consider alternative time the YM licensing process in accordance should not be interpreted as a frames (including no specific time with DOEs 1990 estimate of the time it Commission endorsement of indefinite frame) that would provide reasonable would take to make a repository storage. Instead, the Commission has assurance for the availability of a available at a different site. But the confidence that the SNF and HLW can repository. Further, the Commission Commission rejected this approach continue to be safely stored without does not believe that any of the when denying the Nevada petition: significant environmental impacts for at developments since it issued its least 60 years beyond the licensed life

[T]he use of a Commission acceptability proposed update and proposed rule for operation of any nuclear power finding as the basis for repository availability would require it to revise any of its is impossible to implement because it would plant. The Commission is therefore proposed findingsthe alternative to require the Commission to prejudge the amending Finding 2 to state that a deep proposed Finding 2 that the acceptability of any alternative to Yucca geologic repository will be available Commission approves in this update to Mountain in order to establish a reasonably when necessary.

the Waste Confidence Decision was supported outer date for the Waste This change to Finding 2 does not proposed as part of the initial proposed Confidence finding. That is, if the affect the Commissions confidence that rulemaking and update (73 FR 59561; Commission were to assume that a license for spent fuel can be safely stored with October 9, 2008). Although none of the the Yucca Mountain site might be denied in minimal environmental impacts. This developments in the last year requires 2015 and establish a date 25 years hence for revision reflects the Commissions the availability of an alternative repository inability to predict with precision when the Commission to revise any of the (i.e., 2040), it would still need to presume the proposed findings, the Commission the societal and political uncertainties acceptability of the alternate site to meet does believe that recent developments that date (70 FR 48333; August 17, 2005). associated with the construction of a make it imprudent to continue to repository can be resolved; the include a target date in Finding 2. Another approach, which the Commission is unwilling to predict a Therefore, as discussed in the response Commission included in its proposed starting point for a new repository to Comment 9, the Commission has Finding 2, would be to revise the programthe time to complete a decided to remove the target date from finding to include a target date or time repository program remains unchanged Finding 2 and to express its confidence frame for which it now seems from the discussion in the proposed that a repository will be available when reasonable to assume that a repository rule. As discussed below, the necessary. The proposed findings would be available. A target date for Commission continues to have assumed that YM would not be built when a disposal facility can reasonably confidence that a deep geologic disposal and that DOE would have to select a be expected to be available would result facility can be completed within a new repository site. The proposal to from an examination of the technical reasonable time (25-35 years) and that eliminate the YM project simply and institutional issues that would need disposal capacity for HLW and SNF will reinforces the appropriateness of to be resolved before a repository could be available when necessary.

revisiting the 1990 decision at this time. be available. The target date approach Most countries possessing HLW and In response to developments would be consistent with the HLW SNF plan to eventually confine these involving YM, as well as for other disposal programs in other countries, as wastes using deep geologic disposal.

reasons, the Secretary of Energy explained below. Currently, there are 24 other countries appointed the Blue Ribbon Commission But the Commission has concerns considering disposal of spent or on Americas Nuclear Future to assess about the use of this approach and has reprocessed nuclear fuel in deep the state of SNF storage and disposal in not adopted it. A target date requires the geologic repositories. From the vantage the United States. Because of the Commission to have reasonable point of near-term safety, there has been decades of scientific studies supporting assurance of when a repository will little urgency in these countries for the use of a geologic repository for the become available, and without the implementing disposal facilities because disposal of HLW and SNF, the resolution of the political and societal of the perceived high degree of safety Commission believes that the Blue issues associated with the siting and provided by interim storage, either at mstockstill on DSKH9S0YB1PROD with RULES2 Ribbon Commission could conclude construction of a repository, the reactors or at independent storage that geologic disposal remains the Commission cannot reasonably predict facilities. Of these 24 countries, 10 have that a repository can and will become established target dates for the or regulation * *

• would not serve the purposes available within a specific time frame. availability of a repository. Most of the for which the rule or regulation was adopted. Id. The Commission does, however, believe 14 countries that have not established Thus, a review of the Waste Confidence findings and rule now might be expected to obviate such that a repository can be constructed target dates rely on centralized interim challenges in individual COL proceedings. within 25-35 years of a Federal decision storage, which may include a protracted VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81064 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations period of onsite storage before shipment on the YM site, it did so for budgetary excavation of drifts, waste handling),

to a centralized facility.26 reasons and not because the other sites would be applicable to another program.

Unlike these other countries, recent DOE was considering were technically Regulatory issues considered during the events in the United States (e.g., the unacceptable. The ongoing research in YM program (e.g., burn-up credit for DOEs motion to withdraw the YM the U.S. and other countries strongly nuclear fuel and seismic performance application and the current suggests that many acceptable sites exist analysis) should provide useful Administrations decision to seek no and can be identified. information for setting new standards or funding for the YM Program) have not The amount of time DOE might need revising current standards.28 Finally, diminished the Commissions to develop an alternative repository site the experience gained by completing the confidence that a repository is would depend upon any enabling NRC licensing process, if that were to technologically feasible, but have legislation, budgetary constraints, and occur, should help the DOE and the diminished its confidence in the target- the degree of similarity between a NRC improve the licensing process for date approach. The Commission now candidate site and other well- any future repositories.

believes that there is insufficient characterized sites with similar HLW Whether waste package and support for the continued use of a target disposal concepts. DOE began engineered barrier information date because of the difficulty associated characterization of the YM site in 1982, developed during the YM repository with predicting the start-date for any made its suitability determination in program would be transferable to a new repository program. The Commission is 2002, and submitted a license program depends on the degree of therefore adopting the position application in 2008. But the history of similarity between an alternative site regarding the removal of a target date potential repository development at YM and YM. The fundamental physical proposed in the Additional Question may be a poor indicator of the amount characteristics of Yucca Mountain are for Public Comment section of the of time needed to develop a new significantly different from other proposed update (73 FR 59567; October repository. Many problems extraneous potential repository sites that were 9, 2008). The Commission is revising to site characterization activities considered in the U.S. repository Finding 2 to state that it has reasonable adversely affected DOEs repository program before 1987. DOE could select assurance that disposal capacity in a program, such as changes in enabling an alternative candidate site that is deep geologic repository will become legislation, public confidence issues, similar to YM in important physical available when necessary. Although funding, and a significant delay in characteristics (such as oxidizing the Commission has declined to set a issuing environmental standards. In conditions, drifts above the water table target date for the availability of a terms of the technical work alone, much with low amounts of water infiltration, repository, it does believe that it would would depend on whether Congress water chemistry buffered by volcanic be beneficial to analyze the time establishes a program involving tuff rocks). In this instance, much of the required to successfully site, license, characterization of many sites existing knowledge for engineered construct, and open a repository. preliminary to the recommendation of a barrier performance at YM might be The technical problems should be the single site (similar to the 1982 NWPA) transferable to a different site.

same as those examined in the earlier or a program focused on a single site Nevertheless, much of DOEs current Waste Confidence reviews, namely, how (similar to the amended NWPA). The research on engineered barriers for YM long it would take DOE to locate a former would likely take longer, but could be inapplicable if an alternative suitable site and how long it would take might have a better chance of success if site has significantly different to develop a waste package and problems develop with a single site. The characteristics from the YM site, such as engineered barriers for that site. For the time needed to characterize the sites an emplacement horizon in reducing reasons explained in the evaluation of would also depend on whether the one conditions below the water table. In this Finding 1, the Commission continues to or more sites chosen for characterization instance, research from other DOE, have reasonable assurance that disposal are similar to sites in this or other industry, or international programs in a geologic repository is technically countries, which would allow DOE to might provide important information on feasible. That is the approach being use already existing knowledge and engineered barriers, provided the new taken in all the countries identified research to increase the efficiency of its site is analogous to sites and engineered previously that have set target dates for repository program. barriers being considered elsewhere.

the availability of a repository. It is also Alternatively, the sites could present But broader institutional issues have the approach of the 14 other countries novel challenges, which would require emerged since 1990 that bear on the that have HLW disposal programs but more time than sites that are similar to time it takes to implement geologic have not set target dates.27 These target those that have already been studied. disposal. International developments dates can be used to provide a There are also many lessons learned have made it clear that technical reasonable idea of how much time is from the YM repository program that experience and confidence in geologic required to site, license, construct, and could help to shorten the length of a disposal, on their own, are not sufficient open a repository. In addition, when new program. For example, performance to bring about the broad social and Congress amended the Nuclear Waste assessment techniques have political acceptance needed to construct Policy Act in 1987 to focus exclusively significantly improved over the past 20 a repository. It is these issues that have years (e.g., the Goldsim software caused the Commission to remove a 26 The three countries with target dates that plan package of DOEs Total System target date as part of the revised Finding direct disposal of SNF are: Czech Republic (2050), Performance Assessment that replaced 2. As stated above, the Commission Finland (2020), and Sweden (2025). The seven the original FORTRAN based software); continues to have confidence that a mstockstill on DSKH9S0YB1PROD with RULES2 countries with target dates for disposal of reprocessed SNF and HLW are: Belgium (2035), performance assessment models are repository can be constructed within China (2050), France (2025), Germany (2025), Japan now easier to develop and more reliable (2030s), Netherlands (2013), Switzerland (2042). than those that were available 20 years 28 Both NRCs 10 CFR part 63 and EPAs 40 CFR 27 These countries are: Brazil, Canada, Hungary, part 197 are applicable only for a repository at YM.

ago. Similarly, operational and Lithuania, Romania, South Korea, Slovak Republic, NRC and EPA have in place standards for a Spain (direct disposal of SNF); Bulgaria, India, manufacturing techniques developed repository at a different site, but these standards Italy, Russia, United Kingdom, Ukraine (disposal of during the YM program (e.g., would likely be revised in a new repository reprocessed SNF and HLW). manufacturing of waste packages, program.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81065 25-35 years of a Federal decision to do prepared and reviewed by the safety Management Organization (NWMO),

so and that a repository will become authorities in 2005. In 2006, recommended an Adaptive Phased available when one is necessary. conclusions from the public debate on Management approach for long-term As part of its evaluation of this disposal options, held in 2005, were care of Canadas SNF, based on the finding, the Commission evaluated the published. Later that year, the French outcomes of the public consultation.

programs in a number of other countries Parliament passed new legislation This approach includes both a technical that support its conclusion that a designating a single site for deep method and a new management system.

repository will be available when geologic disposal of intermediate and According to NWMO, it provides for necessary and that siting, licensing, HLW. This facility, to be located in the centralized containment and isolation of construction, and operation can occur Bure region of northeastern France, is used nuclear fuel deep underground in within 25-35 years of a Federal decision scheduled to open in 2025, some 34 suitable rock formations, with to do so. years after passage of the original continuous monitoring and opportunity In 1997, the United Kingdom rejected Nuclear Waste Law of 1991. for retrievability; and it allows an application for the construction of a In Switzerland, after detailed site sequential and collaborative decision-rock characterization facility at investigations in several locations, the making, providing the flexibility to Sellafield, leaving the country without a Swiss National Cooperative for adapt to experience and societal and path forward for long-term management Radioactive Waste Disposal proposed, technological change. NWMO, or disposal of either intermediate-level in 1993, a deep geologic repository for Choosing a Way Forward: The Future waste or SNF. In 1998, an inquiry by the low- and intermediate-level waste at Management of Canadas Used Nuclear UK House of Lords endorsed geologic Wellenberg. Despite a 1998 finding by Fuel, Final Study Report, November disposal, but specified that public Swiss authorities that technical 2005.

acceptance was required. As a result, feasibility of the disposal concept was In 2007, the Government of Canada the UK Government embraced a successfully demonstrated, a public announced its selection of the Adaptive repository plan based on the principles cantonal referendum rejected the Phased Management approach and of voluntarism and partnership between proposed repository in 2002. Even after directed NWMO to take at least two communities and implementers. This more than 25 years of high quality field years to develop a collaborative led to the initiation of a national public and laboratory research, Swiss community-driven site-selection consultation, and major structural authorities do not expect that a deep process. NWMO will use this process reorganization within the UK program. geologic repository will be available to open consultations with citizens, The UK Nuclear Decommissioning before 2040. communities, Aboriginals, and other Authority envisions availability of a In 1998, an independent panel interested parties to find a suitable site geologic disposal facility for ILW in reported to the Governments of Canada in a willing host community. For 2040 and a geologic facility for SNF and and Ontario on its review of Atomic financial planning and cost estimation HLW in 2075. In 2007, however, the Energy of Canada Ltd.s concept of purposes only, NWMO assumes the Scottish Government officially rejected geologic disposal. Canadian Nuclear availability of a deep geological any further consultation with the UK Fuel Waste Disposal Concept repository in 2035, 27 years after Government on deep geologic disposal Environmental Assessment Panel, initiating development of new site of HLW and SNF. This action by the Report of the Nuclear Fuel Waste selection criteria, 30 years after Scottish Government effectively ends Management and Disposal Concept embarking on a national public more than 7 years of consultations with Environmental Assessment Panel, consultation, and 37 years after rejection stakeholders near Scottish nuclear February 1998. The panel found that of the original geologic disposal installations and represents yet another from a technical perspective, safety of concept. NWMO, Annual Report 2007:

major setback for the UK program. the concept had been adequately Moving Forward Together, March 2008.

In Germany, a large salt dome at demonstrated, but from a social In 2009, NWMO proposed a site Gorleben had been under study since perspective, it had not. The panel selection process for public comment, 1977 as a potential SNF repository. concluded that broad public support is and after considering the comments and After decades of intense discussions and necessary in Canada to ensure the input received is now welcoming protests, the utilities and the acceptability of a concept for managing expressions of interest from potential government reached an agreement in nuclear fuel wastes. The panel also host communities. NWMO, Annual 2000 to suspend exploration of Gorleben found that technical safety is a key part, Report 2009: Moving Forward Together, for at least three, and at most ten, years. but only one part, of acceptability. To be March 2010.

In 2003, the Federal Ministry for the considered acceptable in Canada, the Repository development programs in Environment set up an interdisciplinary panel found that a concept for managing Finland and Sweden are further along expert group to identify, with public nuclear fuel wastes must: (1) Have broad than in other countries, but have participation, criteria for selecting new public support; (2) be safe from both a nonetheless taken the time to build candidate sites. In October, 2010 technical and social perspective; (3) support from potential host Germany resumed exploration of have been developed within a sound communities. In Finland, preliminary Gorleben as a potential SNF repository. ethical and social assessment site investigations started in 1986, and A decision on whether the site is framework; (4) have the support of detailed characterizations of four suitable for a repository could be Aboriginal people; (5) be selected after locations were performed between 1993 reached in 2015. comparison with the risks, costs, and and 2000. In 2001, the Finnish Initial efforts in France, during the benefits of other options; and (6) be Parliament ratified the Governments mstockstill on DSKH9S0YB1PROD with RULES2 1980s, also failed to identify potential advanced by a stable and trustworthy decision to proceed with a repository repository sites, using solely technical proponent and overseen by a project at a chosen site only after the criteria. Failure of these attempts led to trustworthy regulator. Resulting 1999 approval by the municipal council the passage of nuclear waste legislation legislation mandated a nationwide of the host community. Finland expects that prescribed a period of 15 years of consultation process and widespread this facility to begin receipt of SNF for research. Reports on generic disposal organizational reform. Eight years later, disposal in 2020, 34 years after the start options in clay and granite media were in 2005, a newly-created Nuclear Waste of preliminary site investigations.

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81066 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations Between 1993 and 2000, Sweden repository in the sense that there have after commencement of operations (See conducted feasibility studies in eight always been more than sufficient funds 55 FR 38502; September 18, 1990). DOE municipalities. Based on technical available to meet the level of funding acknowledged that a second repository, considerations, one site was found Congress appropriates for the repository or an expansion of the statutory disposal unsuitable for further study, and two program. Section 302(e)(2) of NWPA limit for a single repository, would be sites, based on municipal referenda, provides that the Secretary of Energy necessary to accommodate all the spent decided against allowing further may make expenditures from the fuel from the currently operating and investigations. Three of the remaining Nuclear Waste Fund (NWF), subject to future reactors. The Report to the five sites were selected for detailed site appropriations by the Congress. In her President and the Congress by the investigations. Municipalities adjacent July 27, 2010 statement to the Secretary of Energy on the need for a to two of these sites agreed to be Committee on the Budget, Kristina M. second repository, 1, (2008), available at potential hosts and one refused. Johnson, Undersecretary of Energy, http://brc.gov/library/docs/Second_

On June 3, 2009, the Swedish Nuclear testified that the NWF has a balance of Repository_Rpt_120908.pdf (last visited Fuel and Waste Management Company, approximately $25 billion. Thus, the September 17, 2010).

SKB, selected a site near Oesthammer as NWF has the capacity to ensure timely The revision to Finding 2 in this the site for the final repository for development of a repository consistent update to the Waste Confidence disposal of Swedish SNF. Since 2007, with Congressional funding direction. Decision reflects the Commissions detailed site investigations were Moreover, DOE has prepared updated concern that it may no longer be conducted at both Oesthammer and contracts and a number of utility possible to have reasonable assurance Oskarshamn, both of which already host companies have signed contracts with that sufficient repository space will be nuclear power stations. All Swedish the Department that provide for available within 30 years beyond the spent fuel will be disposed of in the payment into the NWF (See, e.g., licensed life for operation (which may Oesthammer repository. It will be ADAMS Accession Numbers include the term of a revised or renewed located at a depth of 500 meters, in ML100280755 and ML083540149). license).29 According to the NRCs crystalline bedrock that is relatively dry Therefore, there will be a source of High-Value Datasets, there are 14 with few fractures. SKB plans to submit funding for disposal of the fuel to be reactor operating licenses that will a license application in March 2011, generated by these reactors. expire between 2012 and 2020 and an along with an Environmental Impact Arriving at an estimate of the time additional 36 licenses that will expire Assessment and safety analysis. A necessary to successfully construct a between 2021 and 2030. NRC High-government decision is expected in repository involves considering the Value Datasets, http://www.nrc.gov/

2015. If Swedish authorities authorize technical and institutional factors public-involve/open.html#datasets (last construction, the repository could be discussed previously. It appears that the visited October 8, 2010). Many of these available for disposal around 2025, technical work needed to make a licenses could be renewed, which some 30 years after feasibility studies repository available could be done in would extend their operating lifetimes, began. less time than it took DOE to submit a but this cannot be assumed.30 For Before DOE can start the development license application for the YM site (26 licenses that are not renewed, some of a new site, Congress may need to years measured from the beginning of spent fuel will need to be stored for provide additional direction, beyond the site characterization). But as discussed more than 30 years beyond the current NWPA, for the long-term previously, the time needed to develop expiration of the license if a repository management and disposal of SNF and societal and political acceptance of a is not available until after 2025. There HLW. Whatever approach Congress repository might range between 25 and are 23 reactors that were formerly mandates, international experience 35 years. Therefore, once a decision is licensed to operate by the NRC or the since 1990 would appear to suggest that made that it is necessary to construct a AEC and have been permanently shut greater attention may need to be paid to repository, it is likely that a repository down. Id. Thirty years beyond their developing societal and political could be sited, licensed, constructed, licensed life of operation will come as acceptance in concert with essential and in operation within 25-35 years. early as 2029 for Dresden 1 and as late technical, safety, and security Finding 2, as adopted in 1990, also as 2056 for Millstone 1; but for many of assurances. While there is no technical predicts that sufficient repository these plants, 30 years beyond the basis for making precise estimates of the capacity will be available within 30 licensed life for operation will occur in minimum time needed to accomplish years beyond the licensed life for the 2030s and 2040s. Given the time these objectives, examination of the operation (which may include the term necessary to successfully complete a international examples cited previously of a revised or renewed license) of any repository program25-35 yearsand would support a range of between 25 reactor to dispose of HLW and SNF the uncertainty surrounding the start and 35 years. The Commission believes originating in such reactor and date of this program, it is likely that that societal and political acceptance generated up to that time. As explained spent fuel will have to be stored beyond must occur before a successful previously, in 1990 DOE projected that repository program can be completed, 87,000 MTHM would be generated by 29 Based on the inventory of SNF in nuclear and that this is unlikely to occur until 2036. Given the statutory limit of 70,000 power plant pools and interim storage facilities, the amount of spent fuel is anticipated to exceed the a Federal decision is made, whether for MTHM for the first repository, either 70,000 MTHM disposal limit in the NWPA by 2010.

technical, environmental, political, statutory relief from that limit or a See The Report to the President and the Congress legal, or societal reasons, that will allow second repository would be needed. The by the Secretary of Energy on the Need for a Second the licensing and construction of a Commissions continued confidence Repository, DOE/RW-0595, December 2008.

mstockstill on DSKH9S0YB1PROD with RULES2 Therefore, a new repository program would need to repository to proceed. that sufficient repository capacity would remove this limit or provide for more than one Another important institutional issue be available within 30 years of license repository.

is whether funding for a new repository expiration of all reactors rested on an 30 Seven of the licenses that will expire between program is likely to be available. The assumption that two repositories would 2021 and 2030 are renewed licenses (Dresden 2, Ginna, Nine Mile Point 1, Robinson 2, Point Beach provisions of NWPA for funding the be available in approximately 2025 and 1, Monticello, and Oyster Creek). Fifty-two other repository have proved to be adequate 2035, each with acceptance rates of reactor operating licenses have been renewed and for the timely development of a 3400 MTHM/year within several years the renewed licenses will expire after 2030.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81067 30 years after the expiration of the Based on the above information and spent fuel in their possession (55 FR license at a number of these plants. consideration of the public comments, 38508; September 18, 1990).

In 1990, the Commission emphasized the Commission revises Finding 2 to The Commission also considered the that this 30 year period did not establish eliminate its expectation that a unusual case where a utility was unable a safety limit on the length of SNF and repository will be available within the to manage its spent fuel. If a utility were HLW storage. It was only an estimate of first quarter of the twenty-first century to become insolvent, the Commission how long SNF might need to be stored and to state that a repository may believes that the cognizant state public given the Commissions confidence that reasonably be expected to be available utility commission would require an repository disposal would be available when necessary. orderly transfer to another entity, which by 2025. In fact, the Commission said it could be accomplished if the new entity was not concerned about the fact that it C. Finding 2 satisfied the NRCs requirements (49 FR was already clear in 1990 that a few 34680; August 31, 1984). Further, the The Commission finds reasonable Commission expressed the view that, reactors would need to store spent fuel assurance that sufficient mined geologic onsite beyond 30 years after the while the possibility of a need for repository capacity will be available to Federal action to take over stored spent effective expiration date of their licenses dispose of the commercial high-level (i.e., the date the license prematurely fuel from a defunct utility or from a radioactive waste and spent fuel utility that lacked technical competence terminated) due to its confidence in the generated in any reactor when safety of spent fuel storage (55 FR to assure safe storage was remote, the necessary. authority for this type of action exists in 38503; September 18, 1990). For the reasons presented in the evaluation of III. Finding 3: The Commission Finds sections 186c and 188 of the Atomic Finding 4, the Commission is now able Reasonable Assurance That HLW and Energy Act. Id.

to conclude that there is no public Spent Fuel Will Be Managed in a Safe B. Evaluation of Finding 3 health and safety or environmental Manner Until Sufficient Repository As explained above, the focus of concern if the availability of a disposal Capacity Is Available To Assure the Finding 3 is on whether reactor facility results in the need to store fuel Safe Disposal of all HLW and Spent licensees can be expected to safely store at some reactors for 60 years after Fuel their spent fuel in the period between expiration of the license or even longer. the cessation of reactor operations and A. Bases for Finding 3 If the Commission had not already the availability of repository capacity for issued a proposed rule and update to The Commission reached this finding their fuel. In this regard, the NRC is the Waste Confidence Decision, then the in 1984 and reaffirmed it in 1990. This successfully regulating four Administrations proposed budget and finding focuses on whether reactor decommissioned reactor sites that plan to terminate the YM project and licensees can be expected to safely store continue to hold 10 CFR part 50 licenses DOEs filing of a motion to withdraw their spent fuel in the period between and consist only of an ISFSI under the would likely have forced it to do so. The the cessation of reactor operations and 10 CFR part 72 general license Commissions proposed update to the the availability of repository capacity for provisions.32 In addition, the NRC staff Waste Confidence Decision, although it their fuel. The Commission found that has discussed plans to build and operate could not consider these yet-to-occur the spent fuel would be managed safely ISFSIs under the 10 CFR part 72 general developments, did assume that YM because, under either a possession-only license provisions with the licensees at would not be built and that DOE would 10 CFR part 50 license or a 10 CFR part the La Crosse and Zion plants, which have to search for another repository 72 license, the utility would remain are currently undergoing location, which now appears quite under the NRCs regulatory control and decommissioning. The La Crosse plant possible. inspections and oversight of storage plans to load its ISFSI in July 2011 and The Commission has, in sum, facilities would continue (49 FR 34679- the Zion plant is discussing its plans reconsidered the use of a target date 34680; August 31, 1984, 55 FR 38508; with the NRC staff. The NRC is also and, as discussed above, has elected to September 18, 1990). In 1990, when successfully regulating ISFSIs at two remove the target date from Finding 2 extended storage at the reactor site fully decommissioned reactor sites and adopt a finding that deep geologic seemed more probable, the Commission (Trojan and Ft. St. Vrain) under 10 CFR disposal will be available when noted that 10 CFR part 72 allowed for Part 72 specific licenses.33 necessary. This change adopts the license renewals and that the NRC was The NRC monitors the performance of alternative approach presented in the considering issuance of a general 10 ISFSIs at decommissioned reactor sites proposed update to the Waste CFR part 72 license under which spent by conducting periodic inspections that Confidence Decision to revise Finding 2 fuel could be stored in NRC-certified are identical to ISFSI inspections at without reference to a time frame for the casks (55 FR 38508; September 18, operating reactor sites. When availability of a repository (73 FR 59561; conducting inspections at these ISFSIs, 1990).31 The Commission reasoned that October 9, 2008). As discussed in the NRC inspectors follow the guidance in these regulations would provide proposed update, this revision to NRC Inspection Manual Chapter 2690, additional NRC supervision of spent Finding 2 is based both on the Inspection Program for Dry Storage of fuel management. The Commission was Commissions understanding of the Spent Reactor Fuel at Independent not concerned about then-looming technical issues involved and on Spent Fuel Storage Installations and for contractual disputes between the DOE predictions of the time needed to bring 10 CFR part 71 Transportation and the utilities over the DOEs inability about the necessary societal and Packages. At all six decommissioned mstockstill on DSKH9S0YB1PROD with RULES2 to remove spent fuel from reactor sites political acceptance for a repository site. reactor sites mentioned previously, all in 1998 because NRC licensees cannot Id. Because the Commission cannot abandon, and remain responsible for, predict when this societal and political 32 These reactor sites include Maine Yankee, acceptance will occur, it is unable to Yankee Rowe, Connecticut Yankee (also known as 31 10 CFR Part 72 was, in fact, amended to Haddam Neck), and Big Rock Point.

express reasonable assurance in a provide for storage of spent fuel in NRC-certified 33 There are several additional sites with specific specific target date for the availability of casks under a general license (55 FR 29191; July 18, Part 72 ISFSI licenses that are in the process of a repository. 1990). decommissioning (e.g., Humbolt Bay, Rancho Seco).

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81068 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations spent fuel on site has been successfully NRC requirements for licensed possession of the prescribed 20-year limit on storage loaded into the ISFSI; only those irradiated nuclear fuel and that the actions between 2013 and 2020.

inspection procedures applicable to the will be implemented on a timely basis.

Where implementation of such actions The Commission concludes that the existing storage configurations are requires NRC authorizations, the licensee events that have occurred since the last conducted. Also, any generally licensed shall verify in the notification that submittals formal review of the Waste Confidence ISFSI where decommissioning and final for such actions have been or will be made Decision in 1990 support a continued survey activities related to reactor to NRC and shall identify them. A copy of finding of reasonable assurance that operations have been completed is the notification shall be retained by the treated as an away from reactor (AFR) licensee as a record until expiration of the HLW and spent fuel will be managed in ISFSI for inspection purposes. reactor operating license. The licensee shall a safe manner until sufficient repository Therefore, those programs that rely notify the NRC of any significant changes in capacity is available. Specifically, the the proposed waste management program as NRC has continued its regulatory upon a 10 CFR part 50 license for the described in the initial notification.

operation of a generally licensed ISFSI control and oversight of spent fuel are also subject to inspection. To date, the NRC has also renewed storage at both operating and The NRC has not encountered any four specific 10 CFR part 72 ISFSI decommissioned reactor sites, through management problems associated with licenses. These renewals include the both specific and general 10 CFR part 72 the ISFSIs at these six decommissioned part 72 specific licenses for the General licenses. With regard to general 10 CFR reactor sites. Further, the NRCs Electric Morris Operation (the only wet, part 72 licenses, the NRC has inspection findings have not found any or pool-type ISFSI), as well as the Surry, successfully implemented a general unique management problems at any H.B. Robinson, and Oconee ISFSIs. licensing and cask-certification currently operating ISFSI. Generally, the Additionally, the NRC received a program, as envisioned by the types of issues identified through NRC renewal application for the Fort St.

Commission in 1990. There are inspections of ISFSIs are similar to Vrain ISFSI on November 23, 2009.

currently 16 certified spent fuel storage issues identified for 10 CFR part 50 Specific licenses for six additional ISFSIs will expire between 2012 and cask designs. 10 CFR 72.214 (2010). In licensees. Most issues are identified addition, the Commissions reliance on early in the operational phase of the dry 2020. It is expected that license renewals will be requested by these the license renewal process in its 1990 cask storage process, during loading review has proven well-placed, with preparations and actual spent fuel licensees, unless a permanent repository or some other interim storage option is three specific 10 CFR part 72 ISFSI loading activities. Once a loaded storage licenses having been successfully cask is placed on the storage pad, made available.

Although the NRC staffs experience renewed for an extended 40-year relatively few inspection issues are with renewal of ISFSI licenses is limited renewal period, and a fourth having identified due to the passive nature of to these four cases, it is noteworthy that been renewed for a period of 20 years.

these facilities.

Further, the NRCs regulations require the Surry, H.B. Robinson and Oconee NRC licensees have continued to meet ISFSI licenses were renewed for a their obligation to safely store spent fuel that every nuclear power reactor period of 40 years, instead of the 20-year in accordance with the requirements of operating license issued under 10 CFR renewal period currently provided for 10 CFR parts 50 and 72.34 part 50 and every COL issued under 10 under 10 CFR part 72. The Commission CFR part 52 must contain a condition Based on the above discussion, authorized the staff to grant exemptions requiring each licensee to submit including its response to the public to allow the 40-year renewal period after written notification to the Commission comments, the Commission reaffirms the staff reviewed the applicants of the licensees plan for managing Finding 3.

evaluations of aging effects on the irradiated fuel between cessation of structures, systems, and components reactor operation and the time the DOE important to safety. The Commission 34 Section 302 of NWPA authorizes the Secretary takes title to and possession of the determined that the evaluations, of Energy to enter into contracts with utilities irradiated fuel for ultimate disposal in a supplemented by the licensees aging generating HLW and SNF under which the utilities repository. The submittal, required by management programs, provide are to pay statutorily imposed fees into the NWF in 10 CFR 50.54(bb), must include reasonable assurance of continued safe return for which the Secretary, beginning not later information on how the licensee intends storage of spent fuel in these ISFSIs. See than January 31, 1998, will dispose of the [HLW]

to provide funding for the management SECY-04-0175, Options for or [SNF] involved * * *. 42 U.S.C. 10222(a)(5)(B).

of its irradiated fuel. Specifically, 10 Addressing the Surry Independent The NWPA also prohibits NRC from issuing or CFR 50.54(bb) requires the licensee to: renewing a reactor operating license unless the Spent Fuel Storage Installation License- prospective licensee has entered into a contract

[W]ithin 2 years following permanent Renewal Period Exemption Request, with DOE or is engaged in good-faith negotiations cessation of operation of the reactor or 5 September 28, 2004 (ADAMS Accession for a contract. 42 U.S.C. 10222(b)(1). When it years before expiration of the reactor Number ML041830697). became evident that a repository would not be operating license, whichever occurs first, With regard to generally licensed available in 1998, DOE took the position that it did submit written notification to the not have an unconditional obligation to accept the Commission for its review and preliminary ISFSIs, the NRC staff submitted a draft HLW or SNF in the absence of a repository. See approval of the program by which the final rule to the Commission on May 3, Final Interpretation of Nuclear Waste Acceptance licensee intends to manage and provide 2010, to clarify the processes for the Issues (60 FR 21793; May 3, 1995). The U.S. Court funding for the management of all irradiated renewal of ISFSIs operated under the of Appeals for the District of Columbia Circuit, fuel at the reactor following permanent general license provisions of 10 CFR however, held that DOEs statutory and contractual cessation of operation of the reactor until title part 72 and for renewal of the CoC for obligation to accept the waste no later than January mstockstill on DSKH9S0YB1PROD with RULES2 to the irradiated fuel and possession of the dry cask storage systems. See SECY 10- 31, 1998, was unconditional. Indiana Michigan fuel is transferred to the Secretary of Energy 0056, Final Rule: 10 CFR Part 72 Power Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996).

for its ultimate disposal * * *. Final Subsequently, the utilities have continued to safely Commission review will be undertaken as License and Certificate of Compliance manage the storage of SNF in reactor storage pools part of any proceeding for continued Terms (RIN 3150-A109) (ADAMS and in ISFSIs and have received damage awards as licensing under part 50 or 72 of this chapter. Accession Number ML100710052). determined in lawsuits brought before the U.S.

The licensee must demonstrate to NRC that There are currently nine sites operating Court of Federal Claims. See, e.g., System Fuels Inc.

the elected actions will be consistent with generally licensed ISFSIs that will reach v. U.S., 78 Fed. Cl. 769 (October 11, 2007).

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81069 IV. Finding 4 (1990): The Commission found wet storage to be a fully- encapsulated in high-integrity metal Finds Reasonable Assurance That, If developed technology with no cladding and stored underwater in a Necessary, Spent Fuel Generated in associated major technical problems. reinforced concrete structure (49 FR Any Reactor Can Be Stored Safely and In 1984, the Commission based its 34685; August 31, 1984). Under these Without Significant Environmental confidence in the safety of dry storage conditions, the Commission noted that Impacts for at Least 30 Years Beyond on an understanding of the material the radioactive content of spent fuel is the Licensed Life for Operation (Which degradation processes, derived largely relatively resistant to dispersal to the May Include the Term of a Revised or from technical studies, together with the environment. Similarly, because of the Renewed License) of That Reactor at Its recognition that dry storage systems are weight and size of the sealed protective Spent Fuel Storage Basin, or at Either simple and easy to maintain (49 FR enclosures, dry storage of spent fuel in Onsite or Offsite Independent Spent 34683-34684; August 31, 1984). By dry wells, vaults, silos, and metal casks Fuel Storage Installations 1990, the NRC and ISFSI licensees had is also relatively resistant to sabotage considerable experience with dry and natural disasters. Id. Although the A. Bases for Finding 4 storage. NRC staff safety reviews of 1990 decision examined several studies This finding focuses on the safety and topical reports on storage system of accident risk, no considerations environmental effects of long-term designs, the licensing and inspection of affected the Commissions confidence storage of spent fuel. In 1984, the dry storage at two reactor sites under 10 that the possibility of a major accident Commission found that spent fuel can CFR part 72, and the NRCs or sabotage with offsite radiological be stored safely and without significant promulgation of an amendment to 10 impacts at a spent fuel storage facility is environmental impacts for at least 30 CFR part 72 that incorporated a extremely remote (55 FR 38512; years beyond the expiration of reactor monitored retrievable storage September 18, 1990).

operating licenses (49 FR 34660; August installation (MRS) (a dry storage facility) Finally, the Commission noted that 31, 1984). In 1990, the Commission into the regulations confirmed the 1984 the generation and onsite storage of determined that if the reactor operating conclusions on the safety of dry storage. more spent fuel as a result of reactor license were renewed for 30 years,35 In fact, under the environmental license renewals would not affect the storage would be safe and without assessment for the amendment Commissions findings on environmental significance for at least (NUREG-1092), the Commission found environmental impacts. Finding 4 is not 30 years beyond the term of licensed confidence in the safety and based on a determination of a specific operation for a total of at least 100 years environmental insignificance of dry number of reactors and amount of spent (55 FR 38513; September 18, 1990). The storage at an MRS for 70 years following fuel; Finding 4 evaluates the safety of Commission looked at four broad issues a period of 70 years of storage in spent spent fuel storage and lack of in making this finding: (1) The long- fuel storage pools (55 FR 38509-38513; environmental impacts overall. Further, term integrity of spent fuel under water September 18, 1990). individual license renewal actions are pool storage conditions, (2) the structure The Commission also found that the subject to separate safety and and component safety for extended risks of major accidents at spent fuel environmental reviews (55 FR 38512; facility operation for storage of spent storage pools resulting in offsite September 18, 1990).

fuel in water pools, (3) the safety of dry consequences were remote because of storage, and (4) the potential risks of the secure and stable character of the B. Evaluation of Finding 4 accidents and acts of sabotage at spent spent fuel in the storage pool As discussed above, Finding 4 focuses fuel storage facilities (49 FR 34681; environment and the absence of reactive on the safety and environmental August 31, 1984; 55 FR 38509; phenomenadriving forcesthat significance of long-term storage of September 18, 1990). might result in dispersal of radioactive spent fuel. Specifically, the Commission With respect to the safety of water material. The Commission noted that examined four broad issues in making pool storage, the Commission found in storage pools and ISFSIs are designed to this finding: (1) The long-term integrity 1984 that research and experience in the safely withstand accidents caused by of spent fuel under water pool storage United States, Canada, and other either natural or man-made phenomena, conditions; (2) the structure and countries confirmed that long-term and that, due to the absence of high component safety for extended facility storage could be safely undertaken (49 temperature and pressure conditions, operation for storage of spent fuel in FR 34681-34682; August 31, 1984). In human error does not have the water pools; (3) the safety of dry storage; 1990, the Commission determined that capability to create a major radiological and (4) the potential risks of accidents experience with water storage of spent hazard to the public (49 FR 34684- and acts of sabotage at spent fuel storage fuel continued to confirm that pool 34685; August 31, 1984). By 1990, the facilities.

storage is a benign environment for NRC staff had spent several years spent fuel that does not lead to 1. Storage in Spent Fuel Pools studying catastrophic loss of reactor significant degradation of spent fuel spent fuel pool water, which could Since 1990, the NRC has continued its integrity and that the water pools in cause a fuel fire in a dry pool and periodic examination of spent fuel pool which the assemblies are stored will concluded that because of the large storage to ensure that adequate safety is remain safe for extended periods. inherent safety margins in the design maintained and that there are no Further, degradation mechanisms are and construction of a spent fuel pool no adverse environmental effects from the well understood and allow time for action was needed to further reduce the storage of spent fuel in pools. The Office appropriate remedial action (55 FR risk (55 FR 38511; September 18, 1990). of Nuclear Reactor Regulation (NRR) 38509-38511; September 18, 1990). In In 1984, the Commission recognized and the former Office for Analysis and mstockstill on DSKH9S0YB1PROD with RULES2 sum, based on both experience and that the intentional sabotage of a storage Evaluation of Operational Data scientific studies, the Commission pool was theoretically possible, but independently evaluated the safety of found that the consequences would be spent fuel pool storage, and the results 35 Subsequently, the Commission limited the limited because, with the exception of of these evaluations were documented renewal period for power reactor licenses to 20 some gaseous fission products, the in a memorandum to the Commission years beyond expiration of the operating license or combined license (10 CFR 54.31; 56 FR 64943, radioactive content of spent fuel is in dated July 26, 1996, Resolution of 64964; December 13, 1991). the form of solid ceramic material Spent Fuel Storage Pool Action Plan VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81070 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations Issues, (ADAMS Accession Number associated with reactor accidents and pool safety and security, and the ML003706364) and a separate well below the Commissions safety inherent safety and robustness of spent memorandum to the Commission dated goal. fuel pool designs, the NRC concluded October 3, 1996, Assessment of Spent Following the terrorist attacks of that the risk associated with security Fuel Pool Cooling, (ADAMS Accession September 11, 2001, the NRC undertook events at spent fuel pools is acceptably Number ML003706381) (later published an extensive reexamination of spent fuel low. Because these safety improvements as NUREG-1275, Vol. 12, Operating pool safety and security issues. This in spent fuel pool storage are applicable Experience Feedback Report: reexamination included a significantly to non-security events (randomly Assessment of Spent Fuel Cooling, improved methodology, based on initiated accidents), accident risk was February 1997). As a result of these detailed state-of-the-art analytical also further reduced.

studies, the NRC staff and industry modeling, for assessing the response of While the Commission continues to identified a number of follow-up spent fuel assemblies during security have reasonable assurance that storage activities that are described by the NRR events including those that might result in spent fuel pools provides adequate staff in a memo to the Commission in draining of the spent fuel pool. This protection of public health and safety dated September 30, 1997, Followup more detailed and realistic analytical and the common defense and security, Activities on the Spent Fuel Pool Action modeling was also supported by and will not result in significant Plan, (ADAMS Accession Number extensive testing of zirconium oxidation impacts on the environment, the NRC ML003706412). These evaluations kinetics in an air environment and full acknowledges several incidents of became part of the investigation of scale coolability and zirc fire testing of groundwater contamination originating Generic Safety Issue 173, Spent Fuel spent fuel assemblies. This effort both from leaking reactor spent fuel pools Pool Storage Safety, which found that confirmed the conservatism of past and associated structures. In 1990, the the relative risk posed by loss of spent analyses and provided more realistic Commission specifically acknowledged fuel cooling is low when compared with analyses of fuel coolability and potential two incidents where radioactive water the risk of events not involving the SFP. responses during accident or security leaked from spent fuel pools, one of The safety and environmental effects event conditions. Importantly, the new which resulted in contamination of spent fuel pool storage were also more detailed and realistic modeling led outside of the owner controlled area addressed in conjunction with to the development of improvements in (See 55 FR 38511; September 18, 1990).

regulatory assessments of permanently spent fuel safety, which were required The Commission addressed these events shutdown nuclear plants and to be implemented at spent fuel pools stating, [t]he occurrence of operational decommissioning nuclear power plants. by the Commission for all operating events like these have been addressed NUREG/CR-6451, A Safety and reactor sites. (See 73 FR 46204; August by the NRC staff at the plants listed. The Regulatory Assessment of Generic BWR 8, 2008). staff has taken inspection and and PWR Permanently Shutdown In 2003, the U.S. Congress asked the enforcement actions to reduce the Nuclear Power Plants, (August 1997) NAS to provide independent scientific potential for such operational addressed the appropriateness of and technical advice on the safety and occurrences in the future. Id.

regulations (e.g., requirements for security of commercial SNF storage, On March 10, 2006, the NRC emergency planning and insurance) including the potential safety and Executive Director for Operations associated with spent fuel pool storage. security risks of SNF presently stored in established the Liquid Radioactive The study identified a number of cooling pools and dry casks at Release Lessons Learned Task Force in regulations that apply only to an commercial nuclear reactor sites. In July response to incidents at several plants operating reactor and not to spent fuel 2004, the NAS issued a classified involving unplanned, unmonitored storage. These regulations are not reporta publicly available unclassified releases of radioactive liquids into the needed to ensure the safe maintenance summary was made available in 2006 environment. Liquid Radioactive of a permanently shutdown plant. The (as noted above, the unclassified Release Lessons Learned Task Force study also provided conservative summary of the NAS report can be Final Report, September 1, 2006 (Task bounding estimates of fuel coolability purchased or downloaded for free by Force Report) (ADAMS Accession and offsite consequences for the most accessing the NAS Web site at: http:// Number ML062650312). One of the severe accidents, which involve www.nap.edu/ incidents that prompted formation of draining of the spent fuel pool. catalog.php?record_id=11263). As part the Task Force involved leaks from the More recently, the NRC issued of the information gathering for the Unit 1 and 2 spent fuel pools at Indian NUREG-1738, Technical Study of study, the NRC and Sandia National Point.36 Task Force Report, at 1, 5-6, 11.

Spent Fuel Pool Accident Risk at Laboratories briefed the NAS authoring Decommissioning Nuclear Power committee on the ongoing work to 36 In May 2008, the NRC staff completed an Plants, (February 2001), which reassess spent fuel pool safety and inspection at Indian Point Units 1 and 2. NRC Inspection Report Nos. 05000003/2007010 and provides a newer and more robust security issues. The NAS report 05000247/2007010, May 13, 2008 (ADAMS analysis of the safety and environmental contains findings and recommendations Accession Number ML081340425). The purpose of effects of spent fuel pool storage. This for reducing the risk of events involving the inspection was to assess Entergys site study provided the results of the NRC spent fuel pools as well as dry casks. groundwater characterization conclusions and the radiological significance of Entergys discovery of staffs latest evaluation of the accident NRC Chairman Nils J. Diaz provided the spent fuel pool leaks at Units 1 and 2. The NRC staff risk in a spent fuel pool at Commissions response to the NAS in a concluded that Entergys response to the spent fuel decommissioning plants. The report letter to Senator Pete V. Domenici, dated pool leaks was reasonable and technically sound.

discussed fuel coolability for various March 14, 2005 (ADAMS Accession The NRC staff stated that [t]he existence of onsite mstockstill on DSKH9S0YB1PROD with RULES2 groundwater contamination, as well as the types of accidents and included Number ML050280428) (Diaz Letter). In circumstances surrounding the causes of leakage potential offsite consequences based on essence, the NRC concluded, as a result and previous opportunities for identification and assumed radiation releases. The study of its own study and subsequent intervention, have been reviewed in detail. Our demonstrated that by using conservative regulatory actions, that it had adopted inspection determined that public health and safety has not been, nor is likely to be, adversely affected, and bounding assumptions regarding the important recommendations of the and the dose consequence to the public that can be the postulated accidents, the predicted report relevant to spent fuel pools. As a attributed to current onsite conditions associated risk estimates were below those result of the improvements in spent fuel with groundwater contamination is negligible. Id.

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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81071 The Task Force reviewed historical data should be expanded based on data or storage since 1990 have focused on on inadvertent releases of radioactive environmental conditions; and to ensure specific dry cask storage systems located liquids, including four additional that leaks and spills are detected before at either a generic Pressurized Water incidents involving leaks from spent radionuclides migrate offsite via an Reactor (PWR) site or a specific Boiling fuel pools (Seabrook, Salem, Watts Bar, unmonitored pathway. Also, Regulatory Water Reactor (BWR) site. In 2004, the and Palo Verde). As a result of its Guide 1.21 is being revised to provide Electric Power Research Institute (EPRI) review, the Task Force concluded that a definition of significant performed a Probabilistic Risk

[b]ased on bounding dose calculations contamination that should be Assessment (PRA) of a bolted dry spent and/or actual measurements, the near- documented in a licensees fuel storage cask at a generic PWR site.

term public health impacts have been decommissioning records under 10 CFR K. Canavan, Probabilistic Risk negligible for the events at NRC-licensed 50.75(g); to clarify how to report Assessment (PRA) of Bolted Storage operating power facilities discussed in summaries of spills and leaks in a Casks Updated Quantification and this report. Task Force Report, at 15. licensees Annual Radioactive Effluent Analysis Report, Electric Power While concluding that near-term public Release Report; to provide guidance on Research Institute, Palo Alto, California; health impacts from the leaks the NRC remediation of onsite contamination; EPRI Doc. No. 1009691, December 2004.

had investigated were negligible, the and to upgrade the capability and scope In 2007, the NRC published a pilot PRA Task Force also recommended that of the in-plant radiation monitoring methodology that assessed the risk to measures be taken to avoid leaks in the system to include additional monitoring the public and identified the dominant future. The Task Force made 26 specific locations and the capability to detect contributors to risk associated with a recommendations for improvements to lower risk radionuclides. Further, welded canister dry spent fuel storage the NRCs regulatory programs Inspection Procedure 71122.01 has been system at a specific BWR site. NUREG-concerning unplanned or unmonitored revised to provide for review of onsite 1864, A Pilot Probabilistic Risk releases of radioactive liquids from contamination events, including events Assessment of a Dry Cask Storage nuclear power reactors. involving groundwater; evaluation of System at a Nuclear Power Plant, The NRC staff has addressed, or is in effluent pathways so that new pathways March 2007. Both studies calculated the the process of addressing, the Task are identified and placed in the annual individual radiological risk and Force recommendations. See Liquid licensees Offsite Dose Calculation consequences associated with a single Release Task Force Recommendations Manual, as applicable; and inclusion of cask lifecycle where the lifecycle is Implementation Status as of February limited, defined documentation of divided into three phases: Loading, 26, 2008 (ADAMS Accession Number significant radioactive releases to the onsite transfer, and onsite storage. The ML073230982) (Implementation Status). environment in inspection reports for EPRI study showed that risk is Actions taken in response to Task Force those cases where such events would extremely low with no calculated early recommendations included revisions to not normally be documented under fatalities, a first year risk of latent cancer several guidance documents, current inspection guidance. See fatality of 5.6E-13 per cask, and development of draft regulatory Implementation Status (ADAMS subsequent year cancer risk of 1.7E-13 guidance on implementation of the Accession Numbers ML073230982 and per cask. The NRC study also showed requirements of 10 CFR 20.1406 (i.e. ML020730763). that risk is extremely low with no DG-4012),37 revisions to Inspection Additionally, the NRC monitors the prompt fatalities expected, a first year Procedure 71122.01, and an evaluation condition of SFPs through onsite risk of latent cancer fatality of 1.8E-12 of whether further action was required Resident Inspectors, reviews of license per cask and subsequent year cancer to enhance the performance of SFP tell- amendment applications, and risk of 3.2E-14 per cask.

tale drains.38 participation in industry forums. For The major contributors to the low risk For example, Regulatory Guide 4.1 is example on October 28, 2009, the NRC associated with dry cask storage are that being revised to provide guidance to issued Information Notice (IN) 2009-26, they are passive systems, relying on industry for detecting, evaluating, and Degradation of Neutron-Absorbing natural air circulation for cooling, and monitoring releases from operating Materials in the Spent Fuel Pool to all are inherently robust massive structures facilities via unmonitored pathways; to operating reactors licensees and that are highly damage resistant. Current ensure consistency with current construction permit holders. IN 2009-26 design light water reactor (LWR) industry standards and commercially is the latest in a series of generic uranium oxide based fuel and carbon available radiation detection communications regarding material coated uranium oxide fuel of low burn-methodology; to clarify when a issues in SFPs. These and other up from a high temperature gas cooled licensees radiological effluent and documents demonstrate the NRCs reactor have been successfully stored in environmental monitoring programs continuing evaluation of the SFPs and dry storage facilities for approximately their ability to provide an adequate level 20 years. Extended dry-storage of this 37 DG-4012 was formally issued as Regulatory of safety. This engagement ensures any fuel has been approved for an additional Guide 4.21, Minimization of Contamination and issues are identified and addressed 40-year term for facilities that have Radioactive Waste Generation: Life-Cycle Planning through the current regulatory process incorporated an appropriate aging in June 2008.

38 In addition to the NRCs efforts, the nuclear before they could advance to a state management plan. Other potential new industry collectively responded to these incidents where there is a significant fuel types, such as fuels having different of unplanned, unmonitored releases of radioactive environmental impact. Therefore the cladding alloys, fuel internal materials, liquids through the Industry Initiative on Commission has reasonable assurance new assembly designs, different Groundwater Protection. The Industry Initiative has operating conditions, or fuel higher than that SFPs designed, tested, operated and mstockstill on DSKH9S0YB1PROD with RULES2 resulted in publication of voluntary industry guidance on the implementation of groundwater maintained according to NRC current burn-up limits, can be approved protection programs at nuclear power plants. See requirements will provide for the safe by the NRC for extended storage if the Industry Ground Water Protection Initiative-Final storage of spent nuclear fuel. applicant provides sufficient data to Guidance Document, NEI-07-07, August 2007 demonstrate that storage of the newer (ADAMS Accession Number ML072610036); 2. Storage in Dry Casks designs can be safely accomplished.

Groundwater Protection Guidelines for Nuclear Power Plants: Public Edition, EPRI, Palo Alto, CA: With regard to dry cask storage, NRC and licensee experience to date EPRI Doc. No. 1016099, 2008. studies of the accident risk of dry with ISFSIs and with certification of VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81072 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations casks has indicated that interim storage review of safety and environmental spent fuel and high-level waste in a geologic of spent fuel at reactor sites can be issues associated with licensing the PFS repository, and by this decision does not safely and effectively conducted using facility provides additional confidence intend to support storage of spent fuel for an indefinitely long period. (55 FR 38482; passive dry storage technology. There that spent fuel may be safely stored at September 18, 1990).

have not been any safety problems an AFR ISFSI for long periods after during dry storage. The problems that storage at a reactor site. The Commission also explained the have been encountered primarily occur In addition, as noted in its 1990 Waste nature of its finding that spent fuel during cask preparation activities, after Confidence Decision, the Commission could be stored safely and without initial loading of spent fuel and before has confidence in the safety and significant environmental impacts for at placement on the storage pad. One issue environmental insignificance of dry least 30 years beyond the licensed life involved the unanticipated collection storage at an MRS for 70 years following for operation, stating:

and ignition of combustible gas during a period of 70 years of storage in spent [I]n using the words at least in its revised cask welding activities. The NRC issued fuel storage pools. Specifically, the Finding Four, the Commission is not generic communications in 1996 to Commission stated: suggesting 30 years beyond the licensed life address the problem and provide for operation * *

• represents any technical Under the environmental assessment for direction for preventing its recurrence. limitation for safe and environmentally the MRS rule [NUREG-1092], the benign storage. Degradation rates of spent NRC Bulletin 96-04, Chemical, Commission has found confidence in the fuel in storage, for example, are slow enough Galvanic, or Other Reactions in Spent safety and environmental insignificance of that it is hard to distinguish by degradation Fuel Storage and Transportation Casks, dry storage of spent fuel for 70 years alone between spent fuel in storage for less and NRC Information Notice 96-34: following a period of 70 years of storage in than a decade and spent fuel stored for spent fuel storage pools. Thus, this Hydrogen Gas Ignition During Closure environmental assessment supports the several decades. (55 FR 38509; September 18, Welding of a VSC-24 Multi-Assembly proposition that spent fuel may be stored 1990).

Sealed Basket. The NRC also revised its safely and without significant environmental As explained above under the inspection and review guidance to impact for a period of up to 140 years if discussion of Finding 3, the NRC has ensure that appropriate measures are in storage in spent fuel pools occurs first and renewed three specific ISFSI licenses for place to preclude these events. See NRC the period of dry storage does not exceed 70 an extended 40-year period under Inspection Manual, Inspection years. (55 FR 38509-38513; September 18, 1990). exemptions granted from 10 CFR Part Procedure 60854 Item 60854-02 and 72, which provides for 20-year 02.03.a.6 and SFPO Interim Staff Further, a commenter on the 1990 renewals. In addition, the NRC staff Guidance No. 15, dated January 10, Waste Confidence Decision asserted that submitted a final rule package to the 2001. there was reasonable assurance that Commission on May 3, 2010, that would In addition, issuance of Materials spent fuel could be stored safely and provide a 40-year license term for an License No. SNM-2513 for the Private without significant environmental risk ISFSI with the possibility of renewal.

Fuel Storage, LLC (PFS) facility has in dry casks at reactor sites for up to 100 See SECY 10-0056, Final Rule: 10 CFR confirmed the feasibility of licensing an years. The Commission responded: Part 72 License and Certificate of AFR ISFSI under 10 CFR Part 72. While The Commission does not dispute a Compliance Terms (RIN 3150-A109) there are several issues that have to be conclusion that dry spent fuel storage is safe (ADAMS Accession Number resolved before the PFS AFR ISFSI can and environmentally acceptable for a period ML100710052). Continued suitability of be built and operated,39 the extensive of 100 years. Evidence supports safe storage materials is a prime consideration for for this period. A European study published 39 For example, on July 17, 2007, Private Fuel in 1988 states, in conclusion, present-day ISFSI license renewals. As discussed Storage and the Skull Valley Band of Goshute technology allows wet or dry storage over under Finding 3 in this document, the Indians (the Band) filed suit against the U.S. very long periods, and up to 100 years applicants evaluation of aging effects Department of Interior (DOI) in federal district without undue danger to workers and on the structures, systems, and court, challenging DOIs decisions to disapprove the population (See Fettel, W., Kaspar, G., and components important to safety, lease between PFS and the Band and to deny PFSs Guntehr, H., Long-Term Storage of Spent application for right-of-way across public land. On supplemented by the licensees aging Fuel from Light-Water Reactors (EUR 11866 management programs, provided July 26, 2010, the district court vacated both of DOIs denials and remanded the case to DOI for EN), Executive Summary, p.v., 1988). reasonable assurance of continued safe further consideration. Skull Valley Band of Goshute Although spent fuel can probably be safely stored without significant environmental storage of spent fuel in these ISFSIs.

Indians v. Davis,F.Supp.2d, 2010 WL2990781 (D. Utah July 26, 2010). On September 27th, 2010, impact for longer periods, the Commission Thus, these cases reaffirm the the Salt Lake Tribune reported that the Department does not find it necessary to make a specific Commissions confidence in the safety of Interior would not challenge the courts ruling. conclusion regarding dry cask storage in this of interim dry storage for an extended http://www.sltrib.com/sltrib/home/50365983-76/ proceeding, as suggested by the commenter, period. While these license renewal interior-nuclear-department- in part because the Commissions Proposed ruling.html.csp?page=1.

cases only address storage for a period Fourth Finding states that the period of safe of up to 60 years (20-year initial license, In addition, timely petitions for review storage is at least 30 years after expiration plus 40-year renewal), studies challenging the NRCs decision to issue a license to of a reactors operating license. The Private Fuel Storage for the construction of an Commission supports timely disposal of performed to date have not identified interim spent fuel storage facility were filed in the any major issues with long-term use of Court of Appeals for the DC Circuit. Ohngo Gaudadeh Devia v. NRC, No. 05-1419 (and shipping programs. National Research Council dry storage. See, e.g., NUREG/CR-6831, consolidated cases) (DC Cir.). By Order dated June 2006, Going the Distance? The Safe Transport of Examination of Spent PWR Fuel rods 27, 2007, the court held the petitions for review in Spent Nuclear Fuel and High-Level Radioactive after 15 Years in Dry Storage, abeyance pending further court order, requiring the Waste in the United States, Washington, DC: (September 2003); J. Kessler, Technical mstockstill on DSKH9S0YB1PROD with RULES2 parties to file status reports every 120 days on the National Academy Press, TIC: 217588, at pp. 214.

status of actions challenging DOIs lease and right- The NAS committee found that malevolent acts Bases for Extended Dry Storage of Spent of-way decisions. against spent fuel and high-level waste shipment Nuclear Fuel, Electric Power Research Another issue is associated with the February are a major technical and societal concern, and Institute, Palo Alto, California; EPRI 2006 (NAS) Report on the transport of SNF in the recommended that an independent examination of Doc. No. 1003416, December 2002 (55 United States, which concluded that while safe security of spent fuel and high-level waste transport is technically viable, the societal risks transportation be carried out prior to the FR 38509; September 18, 1990). As and related institutional challenges may impinge on commencement of large-quantity shipments to a noted above, the Commission has the successful implementation of large-quantity Federal repository or to interim storage. Id. directed the NRC staff, separate from VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81073 these updates to the Waste Confidence actions to address any noted and provided with redundant Decision and Rule, to examine the deficiencies. The NRCs inspection monitoring, cooling, and make-up water possibility of storage for more than 60 activities in this area are ongoing. In systems. Spent fuel stored in pools is years after licensed life for operation. 2004, the NRC reviewed and approved typically covered by about 25 feet of This longer-term analysis will be revised security plans submitted by water, which serves as both shielding supported by an Environmental Impact licensees to reflect the implementation and an effective protective cover against Statement. of new security requirements. The direct impacts on the stored fuel. Diaz enhanced security at licensee facilities Letter at 2 (73 FR 46206; August 8,

3. Terrorism and Spent Fuel is routinely inspected using a revised 2008).

Management The post-September 11, 2001 studies baseline inspection program, and power The NRC has, since the 1970s, reactor licensees capabilities (including discussed above confirm the regarded spent fuel in storage as a spent fuel pools) are tested in periodic effectiveness of additional mitigation potential terrorist target and provided (every 3 years) force-on-force exercises. strategies to maintain spent fuel cooling for appropriate security measures. Diaz Letter at iii, 7, 9. The NRCs in the event the pool is drained and its Before September 11, 2001, spent fuel ongoing ISFSI security rulemaking is initial water inventory is reduced or lost was well protected by physical barriers, discussed below. entirely. Based on this recent armed guards, intrusion detection In 2002, the NRC required power information and the implementation of systems, area surveillance systems, reactors in decommissioning, wet additional strategies following access controls, and access ISFSIs, and dry storage ISFSIs to September 11, 2001, the risk of a spent authorization requirements for persons enhance security and improve their fuel pool zirconium fire initiation will working inside nuclear power plants capabilities to respond to, and mitigate be less than reported in NUREG-1738 and spent fuel storage facilities. Since the consequences of, a terrorist attack. and previous studies. Given the September 11, 2001, the NRC has In the same year, the NRC required physical robustness of the pools, the significantly enhanced its requirements, licensees transporting more than a physical security measures, and the and licensees have significantly specified amount of spent fuel to spent fuel pool mitigation measures, increased their resources to further enhance security during transport. Diaz and based upon NRC site evaluations of enhance and improve security at spent Letter at 7, 8. every spent fuel pool in the United fuel storage facilities and nuclear power In 2002, the NRC also initiated a States, the NRC has determined that the plants. See (Diaz Letter), at 20. classified program on the capability of risk of a spent fuel pool zirconium fire, Consistent with the approach taken at nuclear facilities to withstand a terrorist whether caused by an accident or a other categories of nuclear facilities, the attack. The early focus of the program terrorist attack, is very low. In addition, NRC responded to the terrorist attacks of was on power reactors, including spent the NRC has approved license September 11, 2001, by promptly fuel pools, and on dry cask storage and amendments and issued safety developing and requiring security transportation. As the results of the evaluations to incorporate mitigation enhancements for spent fuel storage program became available, the NRC measures into the plant licensing bases both in spent fuel pools and dry casks. provided additional guidance to of all operating nuclear power plants in In February 2002, the NRC required licensees on the Commissions the United States (See 73 FR 46207-power reactor licensees to enhance expectations regarding the 46208; August 8, 2008).

security and improve their capabilities implementation of the orders on the to respond to terrorist attacks. The spent fuel mitigation measures. Diaz ii. Dry Storage Casks NRCs orders included requirements for Letter at iv. Dry storage casks are massive spent fuel pool cooling to deal with the In 2007 the NRC issued a final rule canisters, either all metal or a consequences of potential terrorist revising the Design Basis Threat, which combination of concrete and metal, and attacks. These enhancements to security also increased the security requirements are inherently robust (e.g., some casks included increased security patrols, for power reactors and their spent fuel weigh over 100 tons). Storage casks augmented security forces, additional pools (72 FR 12705; March 19, 2007). contain spent fuel in a sealed and security posts, increased vehicle More recently, on March 27, 2009, the chemically-inert environment. Diaz standoff distances, and improved NRC issued a final rule to improve Letter at 3.

coordination with law enforcement and security measures at nuclear power The NRC has evaluated the results of intelligence communities, as well as reactors (74 FR 13926). security assessments involving large strengthened safety-related mitigation commercial aircraft attacks, which were procedures and strategies. The February i. Spent Fuel Pools performed on four prototypical spent 2002 orders required licensees to Spent fuel pools that are designed, fuel cask designs, and concluded that develop specific guidance and strategies tested, operated and maintained the likelihood is very low that a to maintain or restore spent fuel pool according to NRC requirements will radioactive release from a spent fuel cooling capabilities using existing or provide for the safe storage of spent storage cask would be significant readily available resources (equipment nuclear fuel. Spent fuel pools are enough to cause adverse health and personnel) that can be effectively extremely robust structures that are consequences to nearby members of the implemented under the circumstances designed to safely contain spent fuel public. While differences exist between associated with the loss of large areas of under a variety of normal, off-normal, storage cask designs, the results of the the plant due to large fires and and hypothetical accident conditions security assessments indicate that any explosions. (e.g., loss of electrical power, floods, potential radioactive releases were mstockstill on DSKH9S0YB1PROD with RULES2 In January and April 2003, the NRC earthquakes, tornadoes). The pools are consistently very low.

issued additional orders on security, massive structures made of reinforced The NRC also evaluated the results of including security for spent fuel storage. concrete with walls typically over six security assessments involving vehicle The NRC subsequently inspected each feet thick, lined with welded stainless bomb and ground assault attacks against facility to verify the licensees steel plates to form a generally leak-tight these same four cask designs. The NRC implementation, evaluated inspection barrier, fitted with racks to store the fuel concluded that, while a radiological findings and, as necessary, required assemblies in a controlled configuration, release was possible, the size and nature VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81074 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations of the release did not require the formal review of its Waste Confidence consideration of the public comments Commission to immediately implement Decision in 1990 provide support for a received, the Commission is revising additional security compensatory continued finding of reasonable Finding 4 as proposed.

measures. Accordingly, the NRC staff assurance that, if necessary, spent fuel C. Finding 4 recommended, and the Commission generated in any reactor can be stored approved, development of risk- safely and without significant The Commission finds reasonable informed, performance-based security environmental impacts for at least 30 assurance that, if necessary, spent fuel requirements and associated guidance years beyond the licensed life for generated in any reactor can be stored applicable to all ISFSI licensees (general operation of that reactor at its spent fuel safely and without significant and specific), which would enhance storage basin. Specifically, the NRC environmental impacts for at least 60 existing security requirements. This finds continued support for this finding years beyond the licensed life for proposed ISFSI security rulemaking in the extensive study of spent fuel pool operation (which may include the term would apply to all existing and future storage that has occurred since 1990, of a revised or renewed license) of that licensees. See SECY-07-0148, and the continued regulatory oversight reactor in a combination of storage in its Independent Spent Fuel Storage of operating plants, which has been spent fuel storage basin and either Installation Security Requirements for enhanced by the recommendations of onsite or offsite independent spent fuel Radiological Sabotage, (August 28, the Liquid Release Task Force. storage installations.

2007) (ADAMS Accession Number Further, the Commission is revising Finding 2 to reflect its expectation that V. Finding 5: The Commission Finds ML080250294); SRM-SECY-07-0148 repository capacity will be available Reasonable Assurance That Safe, Independent Spent Fuel Storage Installation Security Requirements for when necessary. The analysis Independent Onsite Spent Fuel Storage Radiological Sabotage, (December 18, supporting Finding 2 concludes that a or Offsite Spent Fuel Storage Will Be 2007) (ADAMS Accession Number repository can be constructed within Made Available if Such Storage ML073530119). 25-35 years of a Federal decision to do Capacity Is Needed On August 26, 2010, the NRC staff so. This means that the earliest a A. Bases for Finding 5 recommended an extension of the repository could be available is 2035-proposed rulemaking schedule to 2045, which is beyond the 30 years after The focus of this finding is on the reassess the technical approach and licensed life of operation in the 1990 timeliness of the availability of facilities evaluate the impacts from shifting rule. But as the Commission discussed for storage of spent fuel when the fuel technical approaches. See SECY 10- above, there is no safety finding that can no longer be stored in the reactors 0114, Recommendation to Extend the would preclude the extension of the 30 spent fuel storage pool. At the outset of Proposed Rulemaking on Security years of safe storage without significant the Waste Confidence proceeding, there Requirements For Facilities Storing environmental impacts. Indeed, the was uncertainty as to who had the Spent Nuclear Fuel and High-Level current technical information supports a responsibility for providing this storage, Radioactive Waste, (August 26, 2010) finding that storage for at least 60 years with the expectation that the Federal (ADAMS Accession Number after licensed life for operation is safe. Government would provide away-from-ML101880013). In addition, the NRC Consistent with the changes to Finding reactor (AFR) facilities for this purpose.

has noted that distributing spent fuel 2 and its supporting analysis, the But in 1981 DOE announced its decision over many discrete storage casks (e.g., in Commission is revising Finding 4 to to discontinue the AFR program. The an ISFSI) limits the total quantity of reflect that spent fuel can be safely Commission found that the industrys spent fuel that could be attacked at any stored in dry casks for a period of at response to this change was a general one time, due to limits on the number least 60 years without significant commitment to do whatever was of adversaries and the amount of environmental impacts. Specifically, the necessary to avoid shutting down equipment they can reasonably bring inherent robustness and passive nature reactors. The NWPA provided Federal with them. Diaz Letter at 17, 18, 22. of dry cask storagecoupled with the policy on this issue by defining public operating experience and research and private responsibilities for spent iii. Conclusion-Security accumulated to date, the 70-year finding fuel storage and by providing for an Today, spent fuel is better protected in the Environmental Assessment for MRS program, an interim storage than ever. The results of security the MRS rule, and the renewal of three program at a Federal facility for utilities assessments, existing security specific 10 CFR Part 72 licenses for an for which there was no other solution, regulations, and the additional extended 40-year period (for a total and a research, development, and protective and mitigative measures ISFSI operating life of at least 60 demonstration program for dry storage imposed since September 11, 2001, years)support this finding. Further, designed to assist utilities in using dry provide high assurance that the spent this finding is consistent with the storage methods. These NWPA fuel in both spent fuel pools and in dry Commissions statements in 1990 that it provisions, together with the availability storage casks will be adequately did not dispute that dry spent fuel of ISFSI technology and the fact that the protected. The ongoing efforts to update storage is safe and environmentally 10 CFR part 72 regulations and licensing the ISFSI security requirements to acceptable for a period of 100 years (55 procedures were in place, gave the address the current threat environment FR 38482; September 18, 1990); that Commission reasonable assurance that will integrate the additional protective spent fuel could probably be safely safe, independent onsite or offsite spent measures imposed since September 11, stored without significant fuel storage would be available when 2001, into a formalized regulatory environmental impact for periods longer needed (49 FR 34686-34687; August 31, mstockstill on DSKH9S0YB1PROD with RULES2 framework in a transparent manner that than 30 years Id; and that the 30 year 1984).

balances public participation against finding did not represent a technical In 1990, the Commission saw no need protection of exploitable information. limitation for safe and environmentally to revise this finding. It recognized that benign storage (55 FR 38509; September the NWPA had undermined the ability

4. Conclusion 18, 1990). of an MRS to provide for timely storage The Commission concludes that the Therefore, based on all of the by linking the MRS to the siting and events that have occurred since the last information set forth above and after schedule for a repository (i.e., DOE was VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations 81075 not permitted to select an MRS site until enforces. In addition, the Commission Subsequently, the utilities have it had recommended a site for cited three situations where dry storage continued to manage spent fuel safely in development as a repository). See had been licensed at specific reactor spent fuel pools and ISFSIs and have Section 145(b) of NWPA, 42 U.S.C. sites (Surry, H.B. Robinson, and received damage awards as determined 10165 (2006) and Section 148(d)(1) of Oconee), and several additional in lawsuits brought before the U.S.

NWPA, 42 U.S.C. 10168 (2006). But the applications for licenses permitting dry Federal Claims Court. See, e.g., System Commission found that whatever the cask storage at reactor sites. Id. Fuels Inc. v. U.S., 78 Fed. Cl. 769 uncertainty introduced by these NWPA (October 11, 2007); 92 Fed. Cl. 101

1. Operating and Decommissioned provisions, it was more than (March 11, 2010).

Reactors In total, there are currently 51 compensated for by operational and planned spent fuel pool expansions and As in 1990, the NRC is not aware of licensed ISFSIs being managed at 47 dry storage investments by the utilities any current operating reactor that has an sites across the country, under either themselves. insurmountable problem with safe specific or general 10 CFR Part 72 NRC The Commission also considered the storage of SNF. Spent fuel pool re- licenses. As explained in the discussion fact that it seemed probable that DOE racking, fuel-pin consolidation, and of Finding 3, the NRCs inspection would not meet the 1998 deadline for onsite dry cask storage are successfully findings do not indicate unique beginning to remove spent fuel from the being used to increase onsite storage management problems at any currently utilities. This did not undermine the capacity. While there are cases where a operating ISFSI regulated by the NRC.

Commissions confidence that storage licensees ability to use an onsite dry Generally, the types of issues identified capacity would be made available as cask storage option may be limited by through NRC inspections of ISFSIs are needed because NRC licensees cannot State or Public Utility Commission similar to issues identified for 10 CFR abrogate their safety responsibilities and authorities, the NRC is successfully Part 50 licensees. Most issues are would remain responsible for the stored regulating six fully decommissioned identified early in the operational phase fuel despite any possible contractual reactor sites that contain ISFSIs licensed of the dry cask storage process, during disputes with DOE. The Commission under either the general or specific loading preparations and actual spent noted that DOEs research program had license provisions of 10 CFR part 72. fuel loading activities. Once an ISFSI is successfully demonstrated the viability The NRC has not encountered any fully loaded with spent fuel, relatively of dry storage technology and that the management problems associated with few inspection issues are identified due utilities had continued to add dry the ISFSIs at these six decommissioned to the passive nature of these facilities.

storage capacity at their sites. Further, reactor sites and has discussed plans to build generally licensed ISFSIs with two 2. New Reactors the Commission believed that there would be sufficient time for additional licensees that are in the With regard to the status of contracts construction and licensing of any process of decommissioning. requiring DOE to take title to and additional storage capacity that might be In addition, since 1990, the NRC has possession of the irradiated fuel needed due to operating license renewed the specific 10 CFR part 72 generated by utilities, DOE has prepared renewals (55 FR 38513-38514; ISFSI licenses for the Surry, H.B. updated contracts, and a number of September 18, 1990). Robinson, and Oconee plants for an utility companies have signed contracts extended 40-year period, instead of the with the department (See, e.g.,

B. Evaluation of Finding 5 20-year renewal period currently ML100280755 and ML083540149). In In 1990, the Commission reaffirmed provided for under 10 CFR part 72. As addition, before licensing a new reactor, Finding 5 despite significant discussed above under Finding 3, the the NRC must find that the applicant uncertainties regarding DOEs MRS and Commission authorized the staff to grant has entered into a contract with DOE for repository programs, and the potential exemptions to allow the 40-year renewal removal of spent fuel from the reactor for the renewal of reactor operating period after the staff reviewed the site or received written affirmation from licenses. Specifically, in reaffirming applicants evaluations of aging effects DOE that the applicant is actively and Finding 5 the Commission stated: on the structures, systems, and in good faith negotiating with the DOE components important to safety and for such a contract. NWPA, In summary, the Commission finds no basis to change the Fifth Finding in its Waste determined that the evaluations, Section302(b). This finding will be Confidence Decision. Changes by the supplemented by the applicants aging documented in the Safety Evaluation NWPAA, which may lessen the likelihood of management programs, provided Report produced by the NRC staff in an MRS facility, and the potential for some reasonable assurance of continued safe response to specific license applications slippage in repository availability to the first storage of spent fuel in these ISFSIs. See for new reactors (See, e.g.,

quarter of the twenty-first century * *

• are SECY-04-0175, Options for ML100280755).

more than offset by the continued success of Addressing the Surry Independent The near-term design certifications utilities in providing safe at-reactor-site and existing or planned combined storage capacity in reactor pools and their Spent Fuel Storage Installation License-progress in providing independent onsite Renewal Period Exemption Request, license applications do not undermine storage. Therefore, the Commission continues September 28, 2004 (ADAMS Accession the Commissions confidence that spent to find * *

• reasonable assurance that safe Number ML041830697). fuel storage will become available when independent onsite spent fuel storage or With regard to the uncertainty storage is needed. These facilities will offsite spent fuel storage will be made surrounding the contractual disputes use the same or similar fuel assembly available if such storage is needed. (55 FR between DOE and the utilities designs as the nuclear power plants 38514; September 18, 1990). referenced by the Commission in 1990, currently operating in the United States, mstockstill on DSKH9S0YB1PROD with RULES2 In reaching this conclusion, the the U.S. Court of Appeals for the District and the spent fuel will be Commission stressed thatregardless of of Columbia Circuit has since held that accommodated using existing or similar the outcome of possible contractual DOEs statutory and contractual transportation and storage containers.

disputes between DOE and utilitiesthe obligation to accept the waste no later As discussed under Finding 1, the NRC utilities possessing spent fuel could not than January 31, 1998, was is also engaged in preliminary abrogate their safety responsibilities, unconditional. Indiana Michigan Power interactions with DOE on advanced which by law the NRC imposes and Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996). reactors (e.g., gas-cooled or liquid-metal VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2

81076 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Rules and Regulations cooled technologies). The fuel and the Commission stated in 1990, utilities have continued to develop and reactor components associated with have sought to meet storage capacity successfully use onsite storage capacity some of these advanced reactor designs needs at their respective reactor sites (55 in the form of pool and dry cask storage would likely require different storage, FR 38514; September 18, 1990). in a safe and environmentally sound transportation, and disposal packages Specifically, as discussed under Finding fashion. With regard to offsite storage, than those currently used for spent fuel 3, NRC licensees have successfully and the Commission licensed the PFS from light-water reactors. The possible safely used onsite storage capacity in facility after an extensive safety and need for further assessment of spent fuel pools and, more recently, in environmental review process and a performance and storage capability for onsite ISFSIs licensed under 10 CFR lengthy adjudicatory hearing that new and different fuels would depend part 72. In addition, while construction resulted in over 70 ASLB and on the number and types of reactors and operation of an MRS facility by Commission decisions. The Commission actually licensed and operated. There is DOE is uncertain, the NRC has also has a regulatory framework for currently high uncertainty regarding the promulgated regulations that provide a licensing an MRS facility, should the construction of advanced reactors in the framework for licensing an MRS (See 10 need arise. In addition, DOE has U.S. In addition, the need to consider CFR part 72; 53 FR 31651; August 19, prepared updated contracts to provide waste disposal as part of the overall 1988). Further, while there are for disposal of spent fuel and a number research and development activities for unresolved issues that are currently of utility companies have signed advanced reactors is one of the issues preventing construction and operation contracts with the DOE. This provides being considered by DOE, reactor of the PFS facility, the extensive safety the NRC with continued confidence in designers, and the NRC (see, e.g., A and environmental reviews that the Federal commitment to providing Technology Roadmap for Generation IV supported issuance of an NRC license for the ultimate disposal of spent fuel.

Nuclear Energy Systems, issued by the for PFS provide added confidence that Based on the above discussion, U.S. DOE Nuclear Energy Research licensing of a private AFR facility is including its response to the public Advisory Committee and the Generation technically feasible. comments, the Commission reaffirms IV International Forum, December The Commission concludes that the Finding 5.

2002). events that have occurred since the last Dated at Rockville, Maryland, this 9th day Nonetheless, the addition of new formal review of the Waste Confidence of December 2010.

plants (if any are licensed and Decision in 1990 support a continued constructed) would add to the amount finding of reasonable assurance that safe For the Nuclear Regulatory Commission.

of spent fuel requiring disposal. This independent onsite spent fuel storage or Annette L. Vietti-Cook, fact does not affect the Commissions offsite spent fuel storage will be made Secretary of the Commission.

confidence that safe storage options will available if storage capacity is needed. [FR Doc. 2010-31637 Filed 12-22-10; 8:45 am]

be available when needed because, as Specifically, since 1990, NRC licensees BILLING CODE 7590-01-P mstockstill on DSKH9S0YB1PROD with RULES2 VerDate Mar<15>2010 19:08 Dec 22, 2010 Jkt 223001 PO 00000 Frm 00046 Fmt 4701 Sfmt 9990 E:\FR\FM\23DER2.SGM 23DER2