ML23158A161

PR-051 - 54FR39767 - Waste Confidence Decision Review

ML23158A161
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Issue date:	09/28/1989
From:	Hoyle J NRC/SECY
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PR-051, 54FR39767
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ADAMS Template: SECY-067 DOCUMENT DATE: 09/28/1989 TITLE: PR-051 - 54FR39767 - WASTE CONFIDENCE DECISION REVIEW CASE

REFERENCE:

PR-051 54FR39767 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1 PROPOSED RULE: PR-051 RULE NAME: WASTE CONFIDENCE DECISION REVIEW PROPOSED RULE FED REG CITE: 54FR39767 PROPOSED RULE PUBLICATION DATE: 09/28/89 NUMBER OF COMMENTS: 11 ORIGINAL DATE FOR COMMENTS: 12/27/89 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 55FR38474 FINAL RULE PUBLICATION DATE: 09/18/90 OTES ON: FILE LOCATED ON Pl.

• -TA:IUS ~

OF RULE PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-051 RULE TITLE: WASTE CONFIDENCE DECISION REVIEW PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 89-176 SRM DATE: 09/18/89 SIGNED BY SECRETARY: 09/25/89 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 90-209 SRM DATE: 08/22/90 SIGNED BY SECRETARY: 09/11/90 STAFF CONTACTS ON THE RULE CONTACTl: ROB MACDOUGALL MAIL STOP: 4H3 PHONE: 492-3401 CONTACT2: JOHN ROBERTS MAIL STOP: 6H3 PHONE: 492-0608 PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY

DOCKET NO. PR-051 (54FR39767)

In the Matter of WASTE CONFIDENCE DECISION REVIEW DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 09/26/89 09/25/89 FEDERAL REGISTER NOTICE - PROPOSED RULE 12/26/89 12/21/89 COMMENT OF DUKE POWER COMPANY (T. C. MCMEEKIN, VICE PRESIDENT) ( 1) 12/26/89 12/21/89 COMMENT OF PUBLIC CITIZEN CRITICAL MASS ENERGY (SCOTT SALESKA, POLICY ANALYST) ( 2) 12/27/89 12/22/89 COMMENT OF EDISON ELECT. INST. & UTILITY NUC . WASTE (DAVID SWANSON) ( 3) 12/27/89 12/22/89 COMMENT OF STATE OF NEVADA (MALACHY MURPHY, DEP. ATTORNEY GEN.) ( 4) 12/27/89 12/26/89 COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (D. W. EDWARDS, DIRECTOR) ( 5)

- 12/27 / 89 12/27/89 COMMENT OF DEPARTMENT OF ENERGY (SAMUEL ROUSSO, ACTING DIRECTOR) ( 6) 12/28/89 12/27/89 COMMENT OF PHILADELPHIA ELECTRIC COMPANY (G. A. HUNGER, DIRECTOR) ( 7) 12/29/89 12/22/89 COMMENT OF COMMONWEALTH EDISON COMPANY (M.S. TURBAK, PERFORMANCE MANAGER) ( 8) 12/29/89 12/22/89 COMMENT OF VIRGINIA ELECTRIC AND POWER COMPANY (W.L. STEWART, VICE PRESIDENT) ( 9) 01/03/90 12/29/89 COMMENT OF MARVIN LEWIS ( 10) 01/08/90 12/22/89 COMMENT OF FLORIDA POWER & LIGHT COMPANY (R . J. ACOSTA, VICE PRESIDENT) ( 11) 09/14/90 09/11/90 REVIEW AND FINAL REVISION OF WASTE CONFIDENCE DECISION

- DOCKET NUMBER PROPOSED RULE PR 5 I

~'-/-F,e 397 t 7) L'OCKL i LO USNiC

• 90 S[f7 9~ -fuD :33 NUCLEAR REGULATORY COMMISSION 10 CFR Part 51 Waste Confidence Decision Review AGENCY: Nuclear Regulatory Commission.

9 ~CTION: Review and Final Revision of Waste Confidence Decision.

SUMMARY

On August 31, 1984, the Nuclear Regulatory Commission (NRC) issued a final decision on what has come to be known as its "Waste Confidence Proceeding." The purpose of that proceeding was " ... to assess generically the degree of assurance now available that radioactive waste can be safely disposed of, to determine when such disposal or offsite storage will be available and to determine whether radioactive waste can be safely stored onsite past the

~xp:

~ t ..

ir,jltion .of e_x,isting facility licenses until offsite disposal or storage is

_ _.... -: .. _::~.:.. ~--~ --

available." * (49 FR 34658). The Commission noted in 1984 that its Waste Confidence Decision was unavoidably in the nature of a prediction, and committed to review its conclusions " ... should significant and pertinent unexpected events occur or at least every five years until a repository is available." The purpose of this notice is to present the findings of the Commission's first review of that Decision.

The Commission has reviewed its five findings and the rationale for them in light of developments since 1984. This revised Waste Confidence Decision supplements those 1984 findings and the environmental analysis supporting them.

The Commission is revising the second and fourth findings in the Waste Confidence Decision as follows:

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

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

The Commission is reaffirming the remaining findings. Each finding, any revisions, and the reasons for revising or reaffirming them are set forth in the body of the review below.

The Commission also issued two companion rulemaking amendments at the time it issued the 1984 Waste Confidence Decision. The Commission's reactor licensing rule, 10 CFR Part 50, was amended to require each licensed reactor operator to

submit, no later than five years before expiration of the operating license, plans for managing spent fuel at the reactor site until the spent fuel is transferred to the Department of Energy (DOE) for disposal under the Nuclear Waste Policy Act of 1982 (NWPA). 10 CFR Part 51, the rule defining NRC's responsibilities under the National Environmental Policy Act (NEPA), was amended to provide that, in connection with the issuance or amendment of a

- reactor operating license or initial license for an independent spent fuel storage installation, no discussion of any environmental impact of spent fuel storage is required for the period following expiration of the license or amendment applied for.

• In keeping with the revised Findings 2 and 4, the Commission is providing elsewhere in this issue of the Federal Register conforming amendmerits to its 10

• CFR Part 51 rule providing procedures for considering in licensing proceedings the environmental effects of e~tended onsite storage of spent fuel.

Finally, the Commission is extending the cycle of its Waste Confidence reviews from every five years to every ten until a repository becomes available. In its 1984 Decision, the Commission said that because its conclusions were 11

• • • unavoidably in the nature of a prediction," it would review them " ... should- \.

significal')t and pertinent unexpected events occur, or at least.every five years until a repository ... is available." As noted below, the Commission now believes that predictions of repository availability are best expressed in terms of decades rather than years. To specify a year for the expected availability_ of a repository decades hence would misleadingly imply a degree of

precision ridw unattainable. Accordingly, the Commission is changing its orig'inal commitment in order to review its Waste Confidence Decision at least every ten years. This would not, however, disturb the Commission's original commitment to review its Decision whenever sign1ficant and pertinent unexpected events occur. The Commission anticipates that such events as a major shift in ~

national policy, a major unexpected institutional development, and/or new technical information might cause the Commission to consider reevaluating its Waste Confidence Findings sooner than the scheduled ten-year review.

FOR FURTHER INFORMATION CONTACT: John Roberts, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington., D.C.

20555, telephone (202) 492-0608.

SUPPLEMENTARY INFORMATION:

Analysis of Public Comments on the Proposed Waste Confidence Decision Review.

1.0 Introduction.

Comments were received from a Federal agency, the pub 1i c. interest sector, the nuclear industry, and one State as listed below in order of their receipt:

Duke Power Company Public Citizen Edison Electric Institute Malachy Murphy (State of Nevada)

Yankee Atomic Electric Company

Department of Energy Philadelphia Electric Company Commonwea 1th Edi son * . I

• Virginia Electric and Power Company Marvin I. Lewis, Registered Professional Engineer Florida Power & Light Company The majority of the commenters were supportive of the Commission's proposed decision and rule. The comments were consolidated into a total of 19 issues to be addressed. Each of these issues is di~cussed under th~ Commission finding

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• to which it-relates. Two additional issues, not raised by commenters, are treated under the heading 11 0ther Relevant Issues." The "Other Relevant Issues" I

section includes consideration of the petition by the Stat~ of Vermont to . I I

intervene in the consideration of the extension of the operating license for Vermo.nt Yankee and the potential for non-payment of the one-time fee for spent nuclear fuel generated prior to April 1983 into the Nuclear Waste Fund.

2.0 Analysis of Issues Related to Commission Findings.

2.1 The Commission's First Finding.

The Commission finds reasonable assurance that safe disposal of high-level radioactive waste and spent fuel in a mined geologic repository is technically feasible.

Issue No. 1: Technical Feasibility of Safe* Disposal in a Mined Geologic Repository Comment The commenter representing Public Citizen (PC) stated that there is sti11 not adequate assurance that permanent, safe disposal of high-level radioactive waste in a mined geologic repository is technically feasible. In support of 9 this, the commenter indicated that a number of major scientific panels have pointed out that there is no technical or scientific basis for knowing for sure that geologic disposal is possible. As an example, PC stated that President Carter's Office of Science and Tec_hnology Policy (OSTP) found in 1979 a rather general consensus among scientists that a technology base "sufficient to permit complete confid.ence in the safety of any particular repository design or the suitability of any particular site" was still lacking. PC further stated that more recently, a Waste Isolation Systems Panel of the National Academy of Sciences pointed out many areas of the geologic disposal problem where technicaluncertainties exist, and where "more information is needed." PC also stated that the technical .difficulties presented .by a million-year disposal problem are unprecedented and ~normous, and that there have been no major findings since (the above studies) that have resolved the u~certainties to the point where it is possible to be assured that geologic disposal is technically feasible.

NRC Response The issue of the technical fea.sibility of the safe disposal of spent nuclear fuel and radioactive waste his been addressed at length in the Commission's 1989 Proposed Waste Confidence Decision Rev~ew (54 FR 39767; September 28, 1989) as well as in the original 1984 Waste ConfidJnce Decision (49 FR 34658;

- August 31, 1984). While those discussions addressed the concerns raised by the comment, it is us~ful to provide additional specific' responses to them. The comment that major scientific panels have pointed out that th~re is no technical. or scientific basis for knowing for sure that geologic disposal is possible makes reference to President Carter's OSTP statement in 1979.

Contrary to the comment, the OSTP statement does not support the contention that there is no technical or scientific basis for knowing for sure that geologic disposal is ptissible. Rather, it remarks on the lack of a technology

- base sufficient to perm;t complete confidence in the safety of any particular repository design or the suitability of any particular site. The information base necessary to license a repository is still being developed. This includes information on site characterization, repository design, waste package design, and the performance assessment of the entire disposal system. The complete body of such necessary information is expected to be in hand only at the completion of the developmental studies and characterization work being undertaken by the DOE. It i~ at this point that the DOE will be in a position to apply for a license from the NRC and seek NRC's approval of the safety of its proposed site and repository design.

The Commission also notes that the OSTP statement was made over a decade ago, prior to the completion of a substantial amount of work which has addressed many of the issues related to disposal technology. While the Commission recognizes that more information is needed and that the te~hnical difficulties are challenging, tnere is no basis to believe that safe disposal in a repository is impossible, or even that it is not likely. No major breakthrough in technology is required to develop a mined geologic repository. Rather, there is a need to add to the current extensive body of technical information already *available and apply it to an evaluation of specific s_ites and engineering designs.

Regarqing the commenter's emphasis on the need for resolution of uncertainties to assure the technical feasibility of geologic disposal, we would respond that the Commission did not state that the feasibility of a mined geologic repository was assured, _in the absolute sense, but that it had found reasonable assurance in the feasibility of mined geologic disposal on the basis of a th~rough review of the technologies needed to achieve this disposal.

Issue No. 2:

• Difficulty in Evaluating Compliance with Repository Safety Standards Over Long Time Periods Comment The PC commenter also raised the issue of what he termed the 11 inability to predict with a reasonable degree of certainty that, once buried, the waste will re.main contained [in the geologic repository] for the required time period. 11

The commenter noted uncertainties related to geologic stability, engineered barriers, rock-waste interactions, and groundwater hydrology which contribute to the difficulty of evaluating compliarice with safety standards over the long time periods involved in radioactive waste isolation. The commenter concluded that although these problems may be able to be resolved, there is not a basis for ~ssurance that this will be the case.

NRC Response The NRC believes that existing safety assessment techniques have the potential to provide a basis for deciding whether proposed radioactive waste disposal systems are acceptable. We recognize the difficulty of predicting with a high degree of accuracy the maximum impacts a repository would have on human health and the environment, especially in the very far future.~ It wi 11 1i kely not be possible to test empirically the ability of models to predict long-term repository performance to the same extent as models for short-term performance.

However, we believe existing technology can provide a sufficient level of safety for present and future generations under certain conditions. These conditions include addressing the uncertainties inherent in projecting far into the future and in modelling complex heterogeneous natural systems, and acquiring and-evaluating data on specific sites.

We also note that the language of the original Environmental Protection Agency's (EPA) Environmental Radiation Standards for Management and Disposal of Spent Nuclear Fuel, High-Level and Traniuranic Wastes (40 CFR Part 191) does

not require absolute assurance that containment requirements will be met.

Rather, it recognizes the uncertainties involved i.n projecting repository performance far into the future; and states 11 Instead, what is required is a reasonable expectation, on the basis of the record before the implementing agency, that compliance with Sec.191.i3(a) will be achieved."*

Issue No. 3: . Unanticipated Difficulti.es in Developing the WIPP Facility Comment PC also indicated that the Waste Isolation Pilot Plant (WIPP) has not opened because of numerous unanticipated difficulties, including leakage of salt water into the site. P~ states that this leakage, which was not anticipated prior to the beginning qf construction in the early 1980s, shows that even on a scale of a few years, geologic events in a repository are unpredictable--to say nothing of events on a time scale of hundreds of thousands of years.

NRC Response Although the NRC does not have oversight responsibility for the WIPP project, NRC does monitor DOE progress on WIPP insofar as 'it may offer valuable insight into efforts to license a repository for commercial high-level waste and spent

• fuel. For example, DO~ must demonstrate compliance with the EPA standard in.

order to operate the WIPP facility. NRC cognizance of DOE efforts to implement the EPA Standard at WIPP could help provide information and consensus-building

in the implementation of the EPA'Standard for the commercial high-level waste repository.

The NRC does not consider the occurrence of brine pockets at the WIPP site as J factor that might diminish its confidence in the technical feasibility of a mined geologic repository. The Commission does not expect that site 9 ,

.characterization of a candidate site.will proceed free from all difficulty. We have urged DOE to establish a planning mechanism for tim'ely development and implementation of contingency plans at Yucca Mo'untain to addr:ess problems during site characteritation as they arise. DOE has announced a new focus on surface-based testing for the Yucca Mountain site in its Reassessment Report to Congress. Under this program, the primary goal of testing is to identify

. / .- '

features of the sHe which would render it unsuitable for a repository. If such features are identified, DOE would notify Congress and the State of Nevada, and terminate site specific activities .. A finding that the Yucca Mountain sit!= is unsuitable would likely lead to delays in -repository availability while another candidate site is identified and characterized, however it would not diminish confidence in the technical feasibility of geologic disposal.

Issue No. 4: Impact of the BEIR V Report on'the Commission's Decision Comment Marvin Lewis drew attention to the recent findings of the Committee on the Biological Effects of Ionizing Radiation (BEIR V) in their report on the Health Effects of Exposure to Low Levels of Ionizing Radiation. The commenter stated,

. )

that the BEIR V study indicated that the danger from radioactivity is four or more times higher than ~reviously known. The commenter further stated that the

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BEIR V findings will require that the NRC change many of its radiation protection guidelines and rules. He also requested that the NRC stop all action on the Waste Confidence Decision Review until the Commission can determine the effect of the BEIR V report on the Decisiort.

NRC Response The Commission has been aware for some time of the scientific data underpinning the estimate of risk from radiation exposure contained in the BEIR V report.*

Much of this information has been incorporated in the. Commission's forthcoming revisions to its radiation protection requirements (10 CFR Part 20). For reasons stated below, however, the Commission does not foresee any impact of the BEIR V report on the Waste Confidence Decision.

The BEIR V report is the latest in a series of reports dealing principally with the effects of low-LET radiation in humans, e.g., radiation such as beta

particles and gamma photons. The report covers radiation carcinogenesis, genetic effects, and effects on the developing embryo/fetus. The report also includes new information related to the dosimetry of the Japanese atomic bomb survivors, and new epidemiological information. The NRC staff, other Federal agencies, and natio~al and international organizations are currently reviewing both the BEIR V report and the report issued in 1988 by the United Nations Scientific Committee on the Effects.of Atomic Radiation (UNSCEAR).

The estimates of risk due to low-LET radiation in the BEIR V report are based principally upon effects observed in populations exposed to high doses and at high dose rates. These effects are then extrapolated using statistical modeling to predict effects at low doses and' dose rates. The extrapolations to low dose and dose ~ate lead to significant uncertaintfes in the estimates of risk in the BEIR V report. The estimates of risk for fatal cancer induction in the BEIR V report are from three to four times larger *than the estimate from e the pref erred model of the BE IR I II report in 1980. However, the new BE! R V estimate is within the overall range of risk estimates and u~certainties from the different models. presented in BEIR III.

It is important to note that the BEIR V report only addresses the issue of risk estimates for radiation effects. The' BEIR committee did not make any recommendations on acceptable fisk or on the potential impacts of the risk estimates to dose limits or standards for radiation protection. Efforts are underway by the International Commission on Radiological Protection (ICRP),

National Council on Radiation Protection and Measurements (NCRP), and the

- 14 ""

Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) of the Executive Office of the President to reach some measure of consensus on the impatts of the revised risk estimates to radiation protection standards.

Under Section 121(a) of the Nuclear Waste Policy Act (NWPA), NRC is required to issue technical requirements and criteria that it will apply in approving or disapproving a repository. These requirements and criteria must be consistent -

with the high~level waste disposal standards promulgated by the Environmental Protection Agency. Demon~tration of compliance

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with the EPA standard was discussed under the rationale for Finding l in the Commission s Proposed Waste 1

Confidence Decision Review.

The NRC does not believe that numerical criteria for individual protection requirements are at issue in its Waste Confidente Proceeding. lhe broader issue of demonstr~ting compliance with EPA release limits using probabilistic analyses was a concern of the NRC staff and the NRC 1 s Advisory Committee on Nuclear Waste in preparing the Proposed Waste Confidence Decision Review. As stated in the Proposed Waste Confidence Decision Review, the NRC staff is closely monitoring EPA s progress on issuing its revised standards to assure 1

that EPA methodologies for demonstrating compliance with them can be applied by NRC to evaluate DOE s demonstration of compliance.

1 NRC will also monitor DOE efforts to demonstrate compliance with the EPA standard at the Waste Isolation Pilot. Plant facility for transuranic wastes.

I 2.2 The Commission's Second Finding The Commis*sion finds reasonable assurance that at least one mined geologic repository will be availa.ble within the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation (which may include the term of. a revised or renewed license) of any reactor to dispose of the commercial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time.

• Issue No. 5: Expected Date for Repository Availability Comment Malachy Murphy (State of Nevada) and Public Citizen expressed a lack of support for the Commission's proposed .second finding. These commenters argue that the finding should be revised to reflect the 2010 date for repository availability announced in DOE's November 1989 Reassessment Report to Congress. They believe

- that the NRC's "confidence" date of 2025 for repository availability may-be exceeded if the Yucca Mountain site is found to be uhsuitable sometime after the year 2000 because there might not be enough time to locate, characterize,

- license and construct a repository at another site by 2025. The commenter- from Public Citizen also finds that even if the Yucca Mountain site were found to be suitable, a repository there might not be available until after 2025. This commenter concluded that it would be more conservative to assume that four candidate sites would be found to be unsuitable during the course of site characterization and that there is no basis for assurance that a repository would be available before 2055.

NRC Response The NRC does not believe it is necessary to change the proposed _second finding to reflect DOE s revised date for repository 1

,.., availability of 2010~ NRC anticipated an extension of several years in DOE s schedule when it issued its 1

proposed revised seco~d findirig. NRC took the position that if the Y~cca Mountain site were found to be unsuitable on or before the year 2000, it was reasonable to expect that an alternative site could be identified and developed in time for repository availability by 2025.

NRC continues to believe that if DOE determines that the Yucca Mountain site is unsuitable, it will make this determination by about the year 2000. DOE s 1

program is now focused on surface-based testing designed to identify features of the site which would render it unsuitable for a repository. The only significant b~rriers to DOE proceeding with site tharacterization at .Yucca Mounta*in are the development of a quality assurance (QA) program acceptable to NRC, completion of study plans for site characterization activities they wish to begin, and resolution of the impasse between DOE and the State of Nevada

. regarding permits for drilling. DOE has made significant progress in the development of a QA program for its site characterization activities. It is possible that this work will be completed and accepted by late 1990 or early 1991._ Regarding the impasse with the State of Nevada, both DOE and the State of Nevada have filed lawsuits in Federal Court in an effort to resolve the question of site access. While any litigation of this matter has the possibility of an unfavorable outcome for DOE, the Commission believes that

Congress has aggressively demonstrated in both the Nuclear Waste Policy Act of 1982 and the Nuclear Waste Policy Amendments Act of 1987 that it is committed to an orderly progression of the repository program and a resolution of the radioactive waste disposal problem. Accordingly, NRC believes that it is reasonable to assume that Congress will not allow the uncertainties related to the start of site characterization to continue for many more years.

For these reasons, NRC believes that the coming decade will be ample time for the DOE to determine whether or not Yucca Mountain is unsuitable and to begin work on an alte~nate site, if necessary. We believe that Congress is committed to a resolution of the waste problem and will take measures to bring this issue to a close.

We would also point out here that the Court decision that led to the Waste Confidence Proceeding did not require NRC to determine when a repository would be available. The Court remanded to NRC the question of ... whether there is reasonable assurance that an offsite storage solution will be available by the years 2007-2009, the expiration of [Prairie Island and Vermont Yankee's]

operating licenses, and if not, whether there is reasonable assurance that the fuel can be safely stored at the reactor sites beyond those dates." NRC chose as a matter of policy not to confine itself to the storage-related questions in the Court's remand, but to address the broader issues of whether radioactive wastes could be safely disposed of, when such disposal would be available, and whether such wastes can be safely stored until they are disposed of. NRC was

not requested to determine nor has it made a determination that a repository must be available by 2025 in order to protect public health and safety.

NRC does not find a reasonable basis for the argument that even if the Yucca Mountain site were found to be suitable, it might not be available by the year 2025. Surface-based and in-situ testing are expected to take approximately ten years. The NWPA provides that NRC 1 s review of DOE's license application is to be completed in three years (with the possibility of an additional year).

Ctinstruction is scheduled to take another six years. Even if each of these activities were to take several years longer than planned, a repository at Yucca Mountain could be available well before the year 2025. The limiting condition appears to be the timing of DOE s acc~ss to the site to begin 1

testing.

Finally, we do not believe it is realistic to assume for conservatism that four candidate sites will be found unsuitable before an acceptable site is characterized, licensed and built. To date, no candidate site for a repository has been found to be unsuitable for technical reasons. However, if the Yucca Mountain site is found to be unsuitable, an alternative site would have to undergo a similar process of site-screening and characterization to determine its suitability. We believe it is reasonable to expect that experience gained in the Yucca Mountain site characterization effort would provide a better basis for choosing an alternative site. Furthermore, it may be possible to complete site suitability testing at another site at a faster pace than at Yucca MouDtain given the benefits of lessons-learned at that site.

Issue No. 6: Clarification of the NRC's Role in the Licensing Support System (LSS)

Comment The DOE commented that it was not clear what NRC meant by the words "implementing it" in the statement "DOE has the responsibility for designing the LSS and bearing the costs associated with it and NRC will be responsible

_ for implementing it. 11 NRC Response In its Proposed Waste Confidence Decision Review, NRC included a description of the Licensing Support System (LSS) under its discussion of "Measures for dealing with Federal-State-Local concerns. 11 The LSS is intended to provide

- participants in the repository licensing proceeding early access to documents relevant to the licensing decision.

To eliminate any confusion regarding NRC's responsibilities for the LSS, the above sentence in the Proposed Decision Review will be eliminated and the following description will be inserted in its place: "DOE is responsible for the design, development, procurement and testing of the LSS. LSS design and development must be consistent with objectives and requirements of the Commission's LSS rulemaking and must be carried out in consultation with the LSS Administrator and with the advice of the Licensing Support System Advisory Review Panel. NRC (LSS Administrator) is responsible or the management and

operation of the LSS .after .co~pletion of the DOE design and development process."

Issue No. 7: Suggestion for Reducing Licensing Uncertainties Related to Spent Fuel Transshipments Comment Commonwealth Edison commented that in order to enhance the viability of the option of transferring spent fuel from retired reactors to others under active management, the NRC should reduce, to the maximum extent possible, licensing uncertainties related to such fuel transfers. The commenter also stated that by pr~determining that spent fuel pool densification and alternative on-site spent fuel storage meth.ods do not raise any significant hazards considerations, the NRC s final decision would be strengthened.

1 NRC Response The Commission evaluates applications.for modification of spent fuel storage at licensee s facilities or for transshipment from pne site to another on an 1

individual basis. Such a case-by-case consideration of the merits of each application ensures that all significant safety issues are addressed in a thorough manner and provides a conservative approach for arriving at a decis-ion on the merits of the license application.

Issue No. 8: Appropriate Use of Nuclear Waste Fund Mbnies Comment Commonwealth Edison Company (CECo) refers to the NRC's statement that DOE could accept responsibility for management of spent fuel until_a repository is

- available in the event that a licensee becomes insolvent prior to the time a geologic repository is ready to accept spent fuel. Funds from either the Nuclear Waste Fund (NWF) or from the utility itself could be used (54 FR 39767, at 39786 and 39790). CECo comments that the use of the NWF monies for this*

purpose would involve the solvent utilities funding the storage*of spent fuel generated by the bankrupt licensees. CECo believes that it is not clear whether the Nuclear Waste Policy Act would allow NWF monies to be used for this

• purpose and suggests that NRC should seek and analyze comments on this issue.

Until furt~er evaluation and analysis has taken place, CECo believes NRC should delete t~is as a basis for confidence.

NRC Response The Commission believes that there aretwo related issues presented in the above cormnent. The first is whether DOE can accept responsibility.for spent fuel if a utility is insolvent or otherwise no longer capable of managing it.

A second related issue is, given DOE's acceptance of responsibility for the spent fuel, where would DOE obtain the funds needed to pay the costs of this -

responsibility? The NRC continues to believe that DOE would accept

responsibility for spent fuel management in the event that a licensee is unable to-exercise its own responsibility. Further, the NRC believes that DOE would have sufficient resources to carry out any safety-related measures.

As indicated in the discussion under Issue 21, because DOE is not precluded from accepting responsibility for the wa*ste in those situations, de\fault is an issue of equity rather than public health and safety. As such, the Commission does not believe that a licensee's-potential default has a.direct beari~g on the Commission's Waste Confidence Decision.

Nevertheless, because the source of funds, but nrit DOE's ultimate responsibility is ambiguous, the NRC has decided to change the refererices that CECo cites with the bracketed words *to* be deleted in the Final Waste Confidence Decision Review:

If for any reason not now foreseen, this spent fuel can no longer be managed by the owners of these reactors, and D_QE must assume responsibility for its management earlier t_han currently planned, this quantity of spent fuel is well within the capability of DOE to manage onsite or offsite with available technology'[financed by the utility either directly or through the Nuclear Waste Fund]; (p.39786, col.I)

Even if a licensed utility were to become insolvent, and responsibility for spent fuel management were transferred to DOE earlier than is currently planned, the Commission has no reason to believe that DOE would

[have insufficient Nuclear Waste Fund resources or otherwise] be unable to carry out any safety-related measures NRC considers necessary. (p.3939O, co l.1)

Issue No. 9: Costs Incurred Due to Delayed Acceptance of Spent Fuel at

_Repository Comment Commonweal~h Edison Company (CECo) observed that additional costs will be I incurred by licensees as a result of delayed acceptance of sperit fuel at the repository. CECo believes that consideration should be given as to whether these costs will be covered by the Nuclear Waste Fund or whether the costs wi 11 be incurred directly by the licensee.

NRC Response The Commission believes that this is a matter which will have to be resolved in

~nother forum in the context of the contracts between DOE and the

- utilities/owners of spent fuel. The individual contracts currently specify the dates by which DOE has agreed to accept responsibility for the disposal of spent fuel. If DOE must delay its acceptance of spent fuel, the responsibility for the financial consequences of that default would have to be determined at that time by refer~nce to and interpretation of the pertinent coritracts. The ultimate answer to this question will not affect the findings of the Waste Confidence Decision.

Issue No. 10: Clarificatiri~ of Discussion of Period of Safe Spent Fuel Storage at Dresden 1 Comment Commonwealth Edison Company (CECo) comments that the discussion in the Proposed Decision Review of the possible extended storage of spent fuel from Dresden 1 is not clear and should be clarified. On the bas.is of assumptions discussed in 9 the Proposed Decision Review, CECo concludes that three different dates could be derived to indicate the maximum time for onsite spent fueJ storage. For Dresden 1, which was licensed to ~perate in 1959 and permanently shut down in 1978, 30 years after shutdown would yield a maximum date of 2008; 30 years after a-full 40-year license term yields a maximum date of 2029; and JO years after a full 40-year license term plus a 3Q..;.year extension of the operating license would yield a date of 2059.

NRC Response The NRC believes that CECo has misinterpreted the discussion pertaining to the maximum term of onsite spent fuel storage in the Waste Confiden~e Decision and the bases and assumptions underlying that discussion as they pertain to the specific circumstances of Dresd~n 1. Th~ generic discussion of the derivation of the maximum safe storage term for the purposes of the Waste Confidence Decision is contained iri pp.39785-90 and pp.39783-96. The Commission concluded on a generic basis that "spent fuel generated in any reactor can be stored safely and without significant environmental impacts in reactor facility

~torage pools or independent spent fueT storage installations located at-reactor or away-from-reactor sites for at least 30 years beyond the licensed life for operation (which may include the term of a revised license) of that reactor at its spent fuel storage basin or at either onsite or offsite independent spent fuel storage installations 11 (proposed 10 CFR 51.23(a) at

p. 39968 (Finding 4) (emphasis added)). The discussion and findings were based

- on technical and institutional considerations that, for the sake of completeness, considered situations like those at Dresden 1 that differ from those with most reactors that are expected to operate to full term plus a possible extended license teim. For Dresden 1, based on proposed §51.23(a),

the applicable storage period would be 30 years beyond the licensed life of operation, or until 2029.

2.3 The Commission's Third Finding.

The Commission finds reasonable assurance that high-level radioactive waste and spent fuel will be managed in a safe manner until sufficient repository capacity is available to assure. the safe disposal of all high-level waste and spent fuel.

Issue No. 11: Resolution of Contractual Conflicts Between DOE and Licensees Comment Commonwealth Edison Company (CECo) comments that the NRC has unnecessarily interjected itself into issues involved in the contracts between the DOE and licensees by NRC's statement that it would have more confidence if the DOE and

l.icensees could resolve any uncertainties by reaching an early and amicable resolution as to how and_when the DOE will accept responsibility for spent fuel. CECo believes that the implication in this statement is that licensees should amend their contracts with DOE to allow DOE additional time to perform under the contracts or that licensees should refrain taking action against DOE if it defaults under the contracts. CECo notes that NRC has stated that its confidence in safe storage is unaffected by potential contractual disputes -

between DOE and the spent fuel owners (54 FR 39792), therefore CECo believes that it would be appropriate for NRC to strike the statement and express no opinion regarding possible future disputes-between DOE and licensees.

NRC Response The Commission did not intend the implication that CECo perceives regarding any particular preferred outcome or suggested resolution of future potential contract disputes between DOE and contract holders. The Commission has*stated that its confidence in safe storage is unaffected by any potential contractual dispute between DOE and *spent fuel generators and owners as to responsibility for spent fuel storage. The Commission's further statement that it would be helpful if any future potential contract_disputes could be resolved amicably merely expressed a concern that the waste management system operates smoothly and efficiently. The statement did not imply any additional impact on or repercussion from the Waste Confidence Decision upon the resolution of future potential contract disputes between DOE and contract holders.

The Commission believes that it has made its position clear that its confidence is not diminished by any potential contractual disputes between DOE and spent fuel owners. However, in order to avoid any further misunderstanding in this regard, the Commission has decided to delete the following statements in its Proposed Waste Confidence Decision Review from its Final Waste Confidence Decision Review:

To resolve any cbntinuing uncertainties, however, it would be helpful if DOE and utilities and other spent fuel generators and owners could reach an early and amicable resolution to the question of how and when DOE will accept responsibility for spent fuel. This would facilitate cooperative.

action to provide for a smoothly operating system for the ultimate disposition of spent fuel. (54 FR 39792) and If DOE and the utilities can amicably resolve their respective responsibilities for spent fuel storage in the interest of efficient and effective admi.nistration of the overall waste management system, including the Nuclear Waste Fund, NRC would gain added confidence in the institutional arrangements for spent fuel management. (54 FR 39797)

Issue.No. 12: NRC Responsibility to Identify Need for Utilities to Provide Interim Storage and to Notify Congress of This Requirement Comment Malachy Murphy (State of Nevada) comments that,* in light of DOE s Reassessment 1

Report to Congress, the NRC should,, explicitly state that utilities will need to have interim spent fuel storage available well into the next century. The commenter also states .that NRC should explicity request that Congress take note of this requirement. The commenter believes that such action would be in keeping with NRC's responsibilities to the publit and to nuclear utilities.

NRC Response The standard contracts between DOE and generators of spent nuclear fuel or persons holding title to spent fuel currently provide that in return for payment to the Nuclear Waste Fund, DOE will dispose of high-level waste and spent fuel beginning no later than January 31, 1998. The Commission believes it would be inappropriate for NRC to take any position on the need for generators and-those holding title to such material to provide interim storage for it beyond 1998. This is a matter that will have to be resolved between the parties to the standard contracts. NRC, in its original Waste Confidence Decision and in the Proposed Waste Confidence Decision Review, addressed the issue of storage of spent fuel until a repository becomes available and has expressed its confidence that spent fuel will be safely managed until a repository is available. Furthermore, in its original Waste Confidence l Proceeding, NRC amended. its reactor lic~nsing rule, 10 CF~ Part 50 to require each* licensed reactor operator to submit, no later than fiv~ years before expiration of the' operating license, plans for managing spent fuel at the reactor site until the spent fuel is transferred to DOE for disposal.

- In the Nuclear Waste Policy Act (NWPA), Congress placed primary responsibility for interim storage of spent fuel on the nuclear utilities until disposal becomes available. Section 132 of the NWPA requires that DOE, NRC, and other authorized Federal officials take such actions as they believe are necessary to

_encourage and expedite the effective use of available storage, and necessary additional storage, at the site of each civilian nuclear power reactor.

Sections 218(a) and 133 of the NWPA also provide that NRC by rule establish procedures for the licensing of any technology approved by NRC for use at the site of any civilian nuclear power reactor. NRC may by rule approve one or more dry spent fuel storage technologies for use at the sites of civilian power reactors without, to the maximum extent ~racticable, the need for additional site-spicific approvals. Congress is eminently aware of the likely need for at-reactor storag~ of spent fuel and has taken legislative action with respect to this matter. Therefore, the NRC believes it is not necessary to inform Congress of this need. However, the NRC will continue to exercise its responsibility to assure that spent fuel is managed safely until a repository is available and will notify Congress of any actions it believes are necessary to provide this assurance.

2.4. The Commission's Fourth Finding.

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

Issue No. 13: Consideration of the Cumulative Impacts on Waste Management in the NRC's NEPA Documentation Comment DOE commented, that the cumulative impacts on waste management of potential reactor operating license extensions should be considered in the NRC's National Environmental Policy Act (NEPA) do~umentation for license renewals.

NRC Response DOE has observed that renewal of operating licenses would increase the total amount of spent fuel requiring disposal or int~rim storage which would be taken into account in DOE program planning and should be considered in NRC's NEPA documentation for license renewals. This is generally consistent with the discussion in the Commission's proposed decision, especially 54 FR 39795 (third -

column). The greater amount of spent fuel which must be stored as a result of license renewal does not affect the Commission's overall finding of no significant ~nvironmental impacts.

• rs~ue No. 14: Ne~d for NRC to Facilit~te ISFSI License Extensions to Reflect the Commission's Revised Fourth Finding

.Comment The Virginia Electric & Power Company (VEPCo) states that the current license on the Independent Spent Fuel Storage Installation (ISFSI) for its Surry

- *nuclear power plant expires on Ju.ly* 31, 2006. VEPCo states that the NRC should initiate actions to facilitate ISFSI license extensions to reflect the proposed revised Fourth Finding that ~pent fuel gen~rated in any reactor can be safely stored for at least 30 years beyond the licensed life for operation of tnat reactor either onsite or offsite.

NRC Response

- The Commission s Waste Confidence finding on the duration of safe storage of 1

spent fuel is generic in nature. Site~specific licensing procedures remain effective. Pursuant to §72.42, an ISFSI license is issued for a period of 20 years but may be renewed upon application by,the licensee~ Part 72 in no way precludes licensees from requesting additional extensions of license terms for ISFSis. The licensee thus has the option of requesting an ISFSI license renewal to coincide with whatever operating ter~ and post-operation spent fuel storage period is in effect for a *particular reactor. For example, a single renewal could extend the Surry ISFSI license expiration date to the year 2026.

The NRC does not believe that further revisions to §72.42 to facilitate these license extensions are warranted at this time.

Issue No. 15: Insufficient Assurance on Duration of Safe Storage and Risk of Fire at a Spent Fuel Poor Comment I.

I Public Citizen stated that there is not adequate assurance that sp~nt fuel will I be stored safely at re_actor sites for up to 30 years beyond the expiration of reactor operating licenses.* This is even more the case if license extensions of up to 30 years are included. Public Citizen further stated that "the (Waste Confidence) policy statement fails to recognize that spent fuel buildup at reactor sites poses a growing safety hazard. The pools are not well protected from the environment (in many cases they are outside the reactor's containment structure) and have leaked in the past. For example, in December 1986 at the Hatch nuclear power plant in Baxley, Georgia, 141,000 gallons of radioactive water leaked out of the plant's fuel pool. More than 80,000 gallons of the water drained into a swamp and from there into the Altamaha River near the plant." Public Citizen added that "More recently, on August 16, 1988, a seal on a fu,el pool pump failed at the Turkey Point nuclear plant near Miami, FL, causing some 3~000 gallons of radioactive water to leak into a nearby storm sewer. The shoes and clot~ing of approximately 15 workers were contaminated."

Public Citizen also stated that the danger posed by an accident in which enough pool water escaped to uncover the irradiated fuel assemblies w6uld be greater than the operational incidents described above. According to the commenter, if a .leak or pump failure caused the water level in a spent fuel pool to drop to a level which exposed. the fuel assemblies: the remaining water might be

insufficient to provide adequate cooling. The-pool water could then heat to the boiling point, producing steam and causing more water to boil away. The

. danger then is that heat could continue to build up even further until the cladding which encloses the irradiated fuel pellets catches fire. The commenter continued saying that the NRC itself, in the time since the original Waste Confidence Decision, has studied the issue of storage in reracked spent fuel pools and concluded in a 1987 report that the consequence of such a cladding fire could be a "significant" radiation release. The NRC report found:

(1) the natural air flow permitted by high-density storage racks is so restricted that potential for self-sustaining cladding fire exists; and (2) with high-density racks providing "severely restricted air flow" the oxidation (burning) would be "very vigorous" and "failure of both the fuel rods and the fuel rod racks is expected. 11 Public Citizen states that nowhere in the Proposed Waste Confidence Decision Review does the NRC take into account the findings of this report, which should have been included.

NRC Response The Commission has addressed the safety of extended post-operational spent fuel storage at considerable length in the discussion of its proposed revised Fourth Finding.

Operational occurrences cited in Public Citizen's comment have .been addressed

• by the NRC staff at the plants listed. The NRC has taken inspection and enforcement action~ to reduce the potential for such operational occurrences in

. the future. We would like to note, however, that the event at the Hatch plant occurred in a transfer canal between spent fuel pools during an operation that would not normally be performed following e~piration of a reactor operating lfcense. In the case of the event at Turkey Point, the water that flowed outside the building went back \into the intake of the plant cooling .canal. The canal is a large, closed loop onsite flow path. There was no radiation release off~ite, and the safety significance of the event appears to have been very low.

Regarding the risk of fire at spent fuel pools, the NRC staff has spe~t several years studying in detail catastrophic loss of reactor spent fuel pool water possibly resulting in a fuel fire in a dry pool. The 1987 report, "Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82"

• (NUREG/CR-4982), referred to in Public Citizen's comment represents an early part of the NRC's study. Its findings were based on generic data on seismic hazards and response of spent fuel pools, which resulted in calculated risk

numbers _with wide ranges of uncertainty .. (Seep. xiii.) Subsequent study of the consequences and ri~ks due to a loss of coolant water from spent fuel pools was conducted by the NRC, and the results were published in NUREG/CR-5176, 11 Seismic Failure and Cask Drop Analysis.of the Spent Fuel Pools at Two Representative Nuclear Power Plants," January' 1989, and NUREG-1353, 11 Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design* Basis Acci.dents e in Spent Fuel Pools,"' April 1989.

• These reports were cited in the Commission's Proposed Waste Confidence:oecision Review (54 FR 39767-39797, at p.39795, September 28, 1989). Also issued in 1989, as part o! the NRC staff's study, was "Value/Impact Analyses of Accident Preventive- and Mitigative Options for Spent Fuel Poois 11 (NUREG/CR-5281).

The analyses reported *in these studies indicate that the dominant accident sequence which contributes to risk in a spent fuel pool is gross structural e failure of the pool due to seismic events. Risks due to other accident scenarios (such as pneumatic seal failures, inadvertent drainag~, loss of cooling or make-up water, and structural failures due to missiles, aircraft_

crashes and heavy load drops) are at least an order of magnitude smaller. For th_is study, older.nuclear power plants were selected, since the older plants are more vulnerable to seismic-induced failures.

It should be noted that for a zircaloy cladding fire in a spent fuel storage

• I . * .

pool, an earthquake or other event causing a major loss of cooling water would have to occur within two years after operation of a PWR or six mon_ths after operation of a BWR. (See NUREG-1353, p. 4-11.) Thus, during the decades of

36 post-operational storage, even a major loss of cooling water would not be sufficient to cause a cladding fire. During the time the pool would be most vulnerable to a 1ire, the most-recently discharged fuel assemblies would have to be adjacent to other recently discharged assemblies for a fire to propagate to the older fuel. Considering that a third of the reactor core is typically .

unloaded as spent fuel each year, the. probability of a fire involving even the equivalent of a reactor core -- a small portion of a pool's capacity -- is quite remote.

It should also be noted that even if the timing of a spent fuel pool failure were conducive to fire, a fire tould occur only with a relatively sudden and substantial loss of coolant.-- a loss great enough to uncover all or most of the fuel, da~aging enough to admit enou~h air from outside the pool to keep a large fire going, and sudden enough to deny the operators time to restore the pool to a safe condition .. Such'. a severe loss of cooling water is likely to result only from an earthquake well beyond the conservatively estimated*

earthquake for which reactors are designed. Earthquakes of that magnitude are

. extremely rare.

The plant-specific studies following the 1987 generic study found that, because of the large safety margins inherent in the design and construction of their spent fuel pools, even the more vulnerable 6lder reactofs could safely withstand earthquakes several times more severe than their design basis earthquake. Factoring in the annual probability of such beyond-design-basis earthquakes, the plant-specific and generic followup studies calculated that

the average annual probability of a major spent fuel pool failure at an operating reactor was ten to thirty times lower than the average probabilities in the 1987 study. (See NUREG/CR-5176, p. xiii, and NUREG-1353, pp. ES-2-3.)

For either BWR or PWR designs, this probability was calculated at two chances in a million per year of reactor operation~ (See NUREG-1353, pp. ES-3-4.)

e After evaluating several regulatory options for reducing the risk of spent fuel pool fires, the NRC regulatory analysis concluded that 11

[t]he risk[s] due to beyond design basis accidents in spent fuel pools, while not negligible, are sufficiently low that the added costs involved with further risk reductions are not warranted." (See NUREG-1353, pp. ES-6-8.)

Issue No. 16: Need for NRC Requirement for Dry Cask Storage Instead of Storage in Spent Fuel Pools Comment Public Citizen states that the use of dry cask storage for spent fuel would

. help address some of the concerns described above, but that NRC has no plans to require dry cask storage instead of storage in spent fuel pools. The commenter notes that NRC has explicitly stated in its Proposed Decision Review that storage in a reactor 1 s 11 spent fuel storage basin" 1s considered safe, and (the commenter) apparently disagrees with this conclusion.

NRC Response The record of operational experience with reactor spent fuel ~torage pools, as discussed in the Commission's Proposed Decision Review and in response to the preceding comments*, strongly supports the conclusfon that reactor spent fuel

\,.

podl storage, which has continued for decades, is safe. Accordingly, the NRC has reached the conclusion that past experience and available information amply 4lt support the safety of spen__t fuel storage, both in pools and dry storage casks, for at least 30 years past the expiration of reactor operating licenses (including the, term of a revised license).-

Issue No. 17: Suggestion to Revise Proposed Fourth Finding to Reflect Reasonable Assurance Th.at Spent Fuel Can Be Safely Stored in Dry Casks at Reactor Sites for Up to One Hundred Years

(

Comment Malachy Murphy (State of Nevada) commented that NRC's Proposed Revised Fourth Finding did not go far enough with respect to the duration of safe storage in dry storage casks. The, commenter suggested that both the proposed finding and the Proposed Amendment to 10 CFR 51.23 be amended to reflect reasonable assurance that spent fuel can be stored safely and without significant environmental risk in dry casks at reactor sites for up to one hundred (100) years.

NRC Response The Commission does not dispute a conclusion that dry spent fuel storage is safe and environmentally acceptable for a period of 100 years. Evidence supports safe storage for this period~ A European study published in 1988 states, "In conclusion, present-day technology allows wet or dry storage over very long periods, and up to 100 years without undue. danger to \'{orkers and population." (See Fettel, W., Kaspar, G., and Gunther, H., 11 Long-Term Storage of Spent Fuel from Light-Water Reactors 11 (EUR 11866 EN), Executive Summary, p.v, 1988.)

Although spent fuel can probably be safely stored without significant environmental impact for longer periods, the Commissi.on does not find it necessary to make a specific conclusion regarding dry cask storage in this proceeding, as suggested by the commenter, in part because the Commission s 1

- p'roposed Fourth Finding states that the period of safe storage is "at least 30 years after expiration of a reactor's operating license. The Commission supports timely disposal of spent fuel and high-level waste in a geologic repository, and by this Decision does not intend to support storage of spent fuel for an indefinitely long period.

Issue No. 18: Maintenance of Institutional Control~ for One Hundred Years Comment Marvin Lewis commented that the Commission's Proposed Revised Decision and Amendment to 10 CFR Part 51 both require that at-reactor storage be available

. and safe for at least 100 years, which is an excessive amount of time.to depend on institutional memory. The commenter states that to look into the future and have confidence that our institutions will survive* in a form which will provide that safe onsite storage is available for at least 100 years* into the future lacks any merit. The commenter asked that .the Commission arrive at the opposite conclusion, namely that "Due to the Department of Energy's lack of quality control of data and analysis, inability to qualify acceptable sites, accusation against subcontractors when data contradicts DOE's preconceived assumptions, and general adherence .to the political solution instead of scientific veracity, the NRC cannot find that temporary storage at reactors will ensure that geological storage for spent fuel will be available and safe when needed. 11 NRC Response The Commission believes there is an adequate basis from the record of Federal regulations, historical experience and current practice to support the Commission's finding regarding institutional controls over spent fuel storage activities.

The Environmental Protection Agency's standards for high-level waste disposal provide that "active institutional controls over disposal sites should be maintained for as long a period of time as is practicable after disposal; however, performance assessments that assess isolation of the wastes from the accessible environment shall not consider any contributions from active institutional controls for more than 100 years after disposal" (40 CFR

- 191.14(a)). The finding that repository licensing performance assessments can take credit for active institutional controls for 100 years is not one of the issues involved in the judicial action which vacated the EPA standard, and it is not expected that this section will be disturbed wh~n the standard is reissued. It should also be noted that this language does not suggest that active institutional controls are unlikely for a period greater than 100 years.

In the summary of '.the Final Rule ;(50 FR 38066; September 19, 1985), EPA noted that many commenters on the Proposed Rule felt that 11 a few hundred years" which was the proposed period for reliance on active institutional controls was too long. EPA agreed to limit the period to 100 years, noting that "this was the time period [EPA] considered in criteria for radioactive waste disposal that were proposed for public comment in 1978 (43 FR 53262), a period that was generally supported by the commenters on that proposal 11 ( 50 FR 38066, at

p. 38080).

NRC would add that there are abundant examples of institutions in human society which have maintained a continuity in institutional. controls far exceeding 100 years. The government of the United States, which is relatively young, is over 200 years old. T~e governments of some European countries have been in

existence for time periods between 700 to 1000 years. While invading armies and civil wars have been disruptive, archival information of interest to the safety of the population can be expected to be preserved. In the United States today, real estate contracts are commonly executed to cover a period of 100 years, or a significant fraction thereof. One hundred-year land-lease agreements are common. Major civil construction proj~cts such as harbors, bridges, flood control systems, and dams are often plann~d and executed--and investments made in them--with the view of recovering the benefits over a period of 100 years or more.

2.5 The Commissirin's Fifth Finding.

The Commission find~ reasonable assurance that safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed.

_Issue No. 19: Impact of Extension of Time for Repository Availability oh the Increased Generation of Low-Level Radioactive Waste Comment Commonwealth Edison (CECo) commented that the Proposed Waste Confidence Review does not address low-level waste concerns resulting from delayed acceptance of spent fuel by the repository under DOE's extended schedule for repository availability. CECo commented that if they store spent fuel in pools and implement rod consolidation to conserve space during the extension, additional low-level waste may be generated. CECo believes that NRC should determine if

this additional low-level waste should go to a Federal Repository or to a sited compact for disposal.

- NRC Response The disposition of high-level and lo.w-level radioactive wastes has already been

- determined by Congress in the Nuclear Waste Policy Act of 1982 (NWPA) and in the Low-Level Radioactive Waste Policy Act (LLWPA). Congressional designation of the method of disposal of each type of waste was not dependent on the DOE s1 schedule for development of the repository; rather, Congress designated the method of disposal according to characteristics of the waste which are associated with its hazard (i.e.*, radioactive source strength, radioactive species of the emanating radiation,,*and half-i;fe). It is not within the NRC s1 regulatory jurisdiction to change the directives provided by Congress in the NWPA and the LLWPA.

3.0 Consideration of Other Events Relevant to the Commission's Decision.

Issue No. 20: Petition by the State of Vermont to Intervene in the Consideration of the Extension of the Operating License for Vermont Yankee In the Commission's Proposed Waste Confid~nce Decision Review, it was stated that the basis for the 2007-2009 timeframe in the Court remand leading to the Waste Confidence Proceeding had changed since the original Decision. This

discussion was based on the fact that it appeared l*i kely that these dates no longer represented the expected expiration dates for the operating licenses of the Vermont Yankee and Prairie Island nuclear plants. The NRG staff has been gr~nting extensions of the dates of expiration of nuclear plant operating licenses to reflect a 40-year period from the date of issuance of the operating license rather than from the date of the*construction permit. The dates ofJ expiration of the Prairie Island Units 1 and 2 had already been extended from -

the year 2006 to the years 2013 and 2014. The NRC staff anticipated that on the basis of the date of issuance of its operating license, Vermont Yankee would be eligible for an extension of its operating license to March 2012.

In the time since the drafting of the Proposed Decision Review, several pertinent events have occurred. -NRG . ,*published a notice of consideration of amendment to the Vermont Yankee Operating License, a proposed "no significant hazards" consideration determination, and opportunity for a hearing (54 FR 31120; July 26, 1989). On August 22, 1989, the State of Vermont filed a petition for leave to i.ntervene. On October 30, 1989, Vermont filed a supplement to its petition to interverle proposing nine contentions for litigation on Vermont Yankee Nuclear Power Corporation's application to extend its operating license. On November 15, 1989, the NRC's Atomic Safety and Licensing Board (ASLB) heard oral argument by counsel for the licensee, the NRG staff, and the State of Vermont concerning the State's petition for leave to intervene and supplemental petition for leave to intervene. The ASLB granted the State of Vermont's petition for leave to intervene, admitted one contention (which did not 'concern waste disposal) as an issue in controversy for

litigation, and granted the request for hearing. The ASLB s ruling was issued 1

in a Prehearing Conference Memorandum and Order dated January 26, 1990

. (Docket No.50-271-0LA-4).

It is now apparent that the extension of Vermont Yankee's operating license expiration date will be dependent on the outcome of this contested hearing.

- There is the possib:ility that a shorter extension or that no extension will be granted. In vi.ew o'f the uncertain outcome, the Commission will delete all discussion of a possible revised date for the Vermont Yankee operating license expiration and the revised date for expiration of the Prairie Island operating licens~. This deletion, however, does not affect the Commission's Proposed Revised Second Finding in its W~ste Confidence Decision Review. Assuming that no extension or a l~sser extension is granted and Vermont Yankee's operating

• 1icense expires in 2007, the basis for the Commission's finding that a repository will be available within the first quarter of the twenty-first century and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor, would be unaffected.

Issue No. 21: Potential Need for Additional Financial Security for the Nuclear Waste Fund The NRC staff has been informed by DOE s Office of Civilian Radioactive Waste 1

Management that a periding final report from DOE's Inspector General has indicated a potential problem for certain nuc.lear utility licensees to pay the one-time fee into the Nuclear.Waste Fund (NWF). for spent fuel generated prior

to April 1983. This issue arises because several utilities elected to defer payment into the fund and, instead, themselves hold the money that was co 11 ected from ratepayers for Ue one-ti me fee. DOE I s Inspector Genera 1 believes that some of those utilities*may not be able to make their payments when due.

The NRC staff met with DOE' s Office of Civilian Radioactive Waste Managemen:t 4t (OCRWM) on December 13, 1989 to discuss this issue and determine the potential impact o~both NRC s Decommissioning Rulemaking and 1

oh the Waste Confidence Decision, and, more generally, on protection of public health and safety. In addition, NRC discussed at that meeting and in follow-up telephone conversations potential actions that DOE might take. These actions could

_include modifying,,_DOE s spent fuel *contracts with electric utilities, seeking 1

legislative amendments, and working with the National Association of Regulatory_

Utility Commissioners to increase assurance of one-time contributions into the NWF.

The NR_C understands from OCRWM staff that, if a nuclear utility licensee were to default on its one-time contribution to the NWF, DOE is not precluded from accepting for disposal all spent fuel from that utility. Thus, the NRC does not view this issue as affecting its confidence that the spent fuel will be disposed of. Rather, the issue is one of .equity.--that is, will a utility and its customers and investors or U.S. taxpayers and/or other utilities ultimately pay for disposal of spent fuel generated prior to April 1983.

Background' In November 1976, the Natural Resources Defense Council (NRDC) petitioned ~RC for a rulemaking to determine whether radioactive wastes generated in nuclear power reactors can be subsequently disposed of without undue risk to the public health and safety. The NRDC also requested that NRC not grant pending or future requests fqr,operating licenses until the petitioned finding of safety was made ..

On June 27.; 1977, NRC denied the NRDC petitiori. The Commission said that in issuing operating licenses, NRC must hive assurance that wastes can be safely handled and stored as they are generated. It also said that it is not necessary for perr!lg.nent,disposaL to:be available i f NRC could be confident that permanent disposal could be accomplished when necessary. NRC added that Congress was aware of the relationship between nuclear reactor operations and the radioactive waste disposal problem~ and that NRC would not *refrain from issuing reactor operating license~ until the disposal problem was resolved.

The Commission also stated that it " ... would not continue to license reactors if it did not have reasonable confidence that the*wastes can and will in due course be disposed of safely."

Also in November 1976, two utility companies requested amendments to their operating licenses to permit expansion in the capacity of their spent nuclear fuel storage pools: V~rmont Yankee Nuclear Power Corporation for the Vermont Yankee plant; and Northern States Power Company for its Prairie Island

facility. In both cases, the utilities planned to increase storage capacity through closer spacing of spent fuel assemblies in existing spent fuel pools.

The New England Coalition on Nuclear Power and the Minnesota Pollution Control Agency intervened. The NRC staff evaluated the requests and found' that the 1J10difications would not endanger public he~lth and safety. The staff did not consider any potential environmental effects of storage of spent fuel at the reactors beyond the dat.es of expiration of their operating licenses. *NRC's Atomic Safety and Licensing Board Panel (ASLBP) adopted the staff's safety and environmental findings and approved the license amendments for the two plants.

It too did not consider the effects of at-reactor storage beyond the exp iration 0

of the facility operating .license.

The Board's decision was appealed to the Atomic Safety and Licensing Appeal Board (ASLAB).

• The ASLAB affirmed the Licensing Board's decision, citing the Commission's " ... reasonable confidence that wastes can and will in due course be~disposed of safely .... in the Commission's denial of the NRDC petition.

The decision of the ASLAB was appealed to the U.S. Circuit Court of Appeals.

On May 23, 1979 the Court declined to stay or vacate the license amendments; but remanded to NRC the question of ... whether there is reasonable assurance that an offsite storage solution will be available by the years 2007~2009, the 0

e,xpiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be safely stored at the reactor sites beyond those dates." In its decision to remand to NRC, for consideration in either a generic rulemaking or an adjudicatory proceeding, the Court observed that the issues of storage and disposal of nuclear waste were being considered

by .the Commission in an ongoing generic proceeding known as the S-3 11 Proceeding 11 on the environmental impacts of uranium fuel cycle activities .to support the operation of a li'ght water reactor, and that it was appropriate to remand in light of a pending decis,ton on that proceeding and analysis.

On October 18, 1979, NRC announced that* it was initiating a rulemaking 8 proceeding in response to the Appeals Court remand and ,as a continuation of the NRDC proc~eding. Specifically, the purpose of the proceeding was for the Commission 11

~ ** to reassess its degree of confidence that radioactive wastes produced by nuclear facilities will be safely disposed of, to determine when any such disposal will be available, and whether such wastes can be safely stored until they are disposed of. 11 The Commission recognized that the scope of this proceeding would be broader than the Court's instriction~ which required the Commission to address only storage-related questions. The Commission believed, however, that the primary public concern was the safety of waste disposal rather than the availability of an off-site solution to the storage problem. The Commission also committed itself to reassess.its basis for confidence that methods of safe permanent dispos~l for high-level waste would be available when needed~ Thus, the Commission chose as a matter of policy not to confine itself exclusively to the narrower issues in the court rema~d.

In the Notice of Proposed Rulemaking, the Commission also stated that if the proceeding le~ to a finding that safe off-site storage or disposal would be

)

available before expiration of faci.lity operating licenses, NRC would promulgate a rule providing that the impact of onsite storage of spent fuel after expiration of facility operating licenses need not be considered in individual licensing proceedings.

The Waste Confidence Decision was issued on August 31, 1984 (49 FR 34658). In the Decision, the Commission made five findings. It found reasonable assurance -

that:

(1) Safe disposal of high-level radioactive waste and spent fuel in a mined geologic repository is technically feasible .

.(2) One or more mined geologic,repositories for commercial high-level radioactive waste and spent fuel will be available by the years 2007-2009, and sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high-level radioact~ve waste and spent fuel originating in such reactor and generated up to that time.

(3) High-level radioactive waste and spent fuel will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all high-level radioactive waste and spent fuel.

(4) If necessary, spent*fuel generated in *any reactor can be stored safely and without significant environmental impacts for at least 30 years

beyond the expiration of that reactor s operating license at that 1

reactor s spent fuel storage basin, or at either onsite or offsite 1

independent spent fuel storage installations.

(5) Safe independent onsite or offsite spent fiel storage will be made available if such storage capacity is needed.

On the day the Decision was issued, the Commission also promulgated two rulemaking amendments: (1) an amendment to 10 CFR Part 50, which required that no later than five years before expiratioti of reactor operating licenses, the licensee must provide NRC with a written plan for management of spent*fuel onsite, until title for the spent fuel is transferred to the DOE; and (2) an amendment to 10 CFR Part 51 which provided that ~n~ironmental consequences of

. spent fuel storage after expiration of facility licenses need not be addressed in connection with issuance of or amendment to a reactor operating license.

In issuing the Part 51 amendment, the Commission stated t_hat although it had reasonable assurance that one or more repositories would be available by 2007-2009, it was possible that some spent fuel would have to be stored beyond those dates. The Part 51 amendment was,based on the Commission s finding in 1

the Waste Confidence Proceeding that it had reasonable assurance that no significant environmental impacts will result from storage of spent fuel for at least 30. years beyond expiration of reactor operating licenses.

Enactment of the NWPA contributed significantly to the basis for the Commission's 1984 Decision and companion rulemakings. The Act established a funding source and process with milestones and schedules for, among other things, the development of a monitored retrievable storage (MRS) facility and two repositories, one by early 1998 and a second, - if authorized by Congress, I at a later date, initially planned by DOE for 2006. For each repository, the Act required DOE to conduct in-situ investigations of three sites and recommend one from among them to the President and Congress for repository development. The NWPA also required DOE to recommend, from among alternative sites and designs, a site and design for an MRS for spent fuel and high-level waste management before disposal. The Commission's licensing and regulatory authority over both storage and disposal facilities was preserved by the Act.

In the four years after enactment of the NWPA, DOE met a number of-the Act's -

early program requirements, but also encountered significant-difficulties. It published a final Mission Plan for the overall NWPA program, and followed with a Project Decision Schedule for DOE and other Federal agency actions. It promulgated, with Commission concurrence, a set of guidelines for repository siting and development. It published draft and final environmental assessments for nine candidate repository sites, and recommended three for characterization. It completed and submitted to Congress an environmental assessment, a program plan, and a proposal with a site and desig-n for an MRS*.

All these actfons followed extensive interactions with interested Federal

~gencies, State~ Indian tribal, and local governments, and other organizations.

In the course of the~e a~tiYities, however, DOE also slipped its schedule for

operation of the first repository by five years, indefinitely postponed efforts toward a second repository, and had to halt further MRS siting and development activities pending Congressional authorization.

In December, 1987, Congress enacted the Nuclear Waste Policy Amendments Act (NWPAA). The NWPAA redirected the high-level waste progr~m by suspending site

• characterization activities for the first repository at sites other than the Yucca Mouritain site, and by su~pending .all site-specific activities with respect to a second repository. The Amendments Act also authorized and set schedule and capacity limits on the MRS. The purpose of these limitations, according to sponsors of the legislation, was to assure that an MRS would nof become a substitute for a geologic repository.

Consistent with its commitment to revisit its Waste Confidence conclusions at least every five years, the Commission has undertaken the current review to assess the effect of these and other developments since 1984 on the basis for each of its five findings. The Commission issued its proposed Waste Confidence Decision Review and proposed revised findings for public comment on September 28, 1989. The comment period expired December 27, 1989. A total of eleven comments were *received.

In this document, the Commission supplements the basis for its earlier finding~

and the environmental analysis of the 1984 Decision. The Commission is amending its second finding, concerning the tirriing of initial availability and sufficient capacity of a repository, and its fourth finding, concerning the

duration of safe spent fuel storage. These ~evisions are based on the following considerations:

1) the five-year slippage, from 1998 to 2003, in the DOE schedule for repository availability prior to issuance of its November 1989 "Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program" and its new target date of 2010 for repository availability announced in that report;

2) the additional slip of four and one-half years since the January 1987 Draft Mission Plan Amendment in the DOE schedule for the excavation of the exploratory shaft;

3) the need to continue accounting for the possibility that the Yucca Mountain site might be found unsuitable ~nd that DOE would have to initiate efforts to identify and characterize another site for the first repository;

4) the statutory suspension of s ite-speci fi c activities for the second repository;

5) DOE's estimate that site screening for a second repository should start about 25 years before the start of waste acceptince; and.

6) increased confidence in the safety of extended spent fuel storage, either at the reactor or at independent spent fuel storage installations.

The Commission is also issuing an amendment to 10 CFR 51.23(a) to conform with the revisions to Findings 2 and 4 elsewhere in this issue of the Federal Register.

Organization and Table of Contents e In conducting this review, the Commission has addressed, for each of its 1984.

Findings, two categories of issues. The first c*ategory consists of the issues the Commission considered in making each Finding at the time of the initial Waste Confidence Decision. For these issues, the Commission is interested in whether its conclusions, or the Finding these conclusions support, should be changed to address new or foreseeable developments that have arisen since the first Waste Confidence Decision. The second category of issues consists of those the Commission believes should be added to the 1984 issues in light of subsequent developments. (To enable the reader to follow more easily, the lengthy discussions of Findings 1 and 2 have been organized to address each original and new issue under subheadings.)

Table of Contents I. First Commission Finding A. Issues Considered in Commission's 1984 Decision on Finding 1.

1J.. Identificati-0n of acceptable sites

2. Development of effective waste packages (a) considerations in developing waste package (b) effect of reprocessing on waste form and waste package

3. Develupment of effective engineered barriers for isolating wastes from the biosphere (a) backfill materials (b) borehole and shaft sealants B. Relevant Issµes That Have Arisen since the Commission's Original Decision on Finding 1

1. Termination of Multiple Site Ch~racterization

2. Relevance to NRC's "S-3 Table" proceeding

3. International developments in spent fuel disposal technology C. Conclusion on Finding 1 II. Second Commission Finding A. Issues Considered in Commission's 1984 Decision on Finding 2

1. Technical uncertainties (a) finding technically acceptable sites in a timely fashion

(b) timely development of waste packages and engineered barriers

2. Institutional uncertainties (a) measures for dealing with Federal-State-local concerns (b) continuity of the management of the waste program (c) continued funding of the nuclear waste management program (d) DOE s sche.dule for repository. development 1

I B. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 2

1. Potential delay under the program of single site characterization

2. Potential limitations on timing of availability of disposal

,capacity (a) impact of possible limited disposal capacity at Yucca Mountain, indefinite suspension of second repository program (b) impact of uncertainty in *spent fuel projections on need to consider second repository program

3. Impact of sl1ppages in DOE program on availability of a repository when needed for health and safety reasons

4. Effect of NRC emphasis on completeness and quality C. Conclusion on Finding 2 III. Third Commission Finding

A. Issues Con~idered in Commission s 1984 Decision on Finding 3:

1 Licensee compliance with NRC regulations and license conditions; Safe management of spent fuel past expiration of operating licenses; Availability of DOE interim storage B. Relevant Issues That Have Arisen since the Commission s Original 1

Decision on Finding 3:

Responsibility for spent fuel storage beyond 1998; Delay in second repository; Potential for license renewals IV. Fourth Commission Finding A. Issues Considered in Commission s 1984 Decision on Finding 4:

1 Long-term integrity of spent fuel under water pool storage conditions; Structure and component safety for extended facility operation for storage; Safety of dry storage o'f spent fue 1; Potential risks of accidents and acts of sabotage of spent fuel storage facilities

B. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 4:

Radiological and non-radiological consequences of extended spent fuel storage; Potential delay in first repository, license renewals, delay in second repository; Environmental assessment and finding of no significant impact of at-reactor storage beyond 30 years after reactor's licensed life for operation V. Fifth Commission Finding A. Issues Considered in Commission's 1984 Decision on Finding 5:

Adequacy of NWPA for determining responsibility for timely spent fuel storage; Spent fuel discharge projections; Industry commitment to_ implement away-from-reactor storage B. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 5:

Responsibility for spent fuel storage beyond 1998;

Advances in technology for dry st0rage; 1 Benefits of monitored retrievable storage facility under NWPAA; License renewals; Options for offsite storage under NWPAA Reaffirmed Finding 1: The Commission finds reasonable assurance that safe disposal of high-level radioactive waste and spent fuel in a mined geologic repository is technically feasible.

I.A. Issues Considered in Commission's 1984 Decision on Firiding 1.

1.A.1. The identification of acceptable sites.

Under the Nuclear Haste Policy Act of 1982 (NWPA), the Department of Energy (DOE) had responsibility for identifying candidate sites for a geologic repository and for repository developm_ent. The first requirement leading to recommendation of candidate sites was formal notification of States with one or more potentially acceptable sites for a repository within 90 days of enactment of the.NWPA. In February 1983, the DOE identified nine potentially acceptable sites for the first repository. Four of the sites were in bedded-salt formations, three were in salt domes, one in volcanic tuff~ and one in basalt.

The NWPA required that each site nomination be accompanied by an environmental assessment (EA). In December 1984, DOE published Draft EAs (DEAs) for each of the nine sites identified as potentially acceptable and proposed the following

• sites for nomination: the reference repository location at Hanford, WA; Yucca Mountain, NV; Deaf Smith County, TX; Davis Canyon, UT; and-Richton Dome, MS.

In May 1986, DOE released Final EAs (FEAs) for'the five sites nominated. At

• that time, DOE recommended that the Yucca Mountain, Hanford, and Deif Smith' County sites undergo site characterization. The President approved the recommendation.

The NRC staff provided extensive comments on both the DEAs and the FEAs. NRC concerns on the FEAs related primarily to DOE s failure to recognize 1

uncertainty inherent in the *existing limited data bases for the recommended sites, ahd the tendency of DOE to present overly favorable or optimistic conclusions. The primary intent of the comments was to assist DOE in preparing high-quality Site Characterization.Plans (SCPs) for each site, as required under the NWPA, before excavation of exploratory shafts. NRC concerns can only be addres~ed adequately through the site characterization process, because one of the purposes of this process is to develop the data to. evaluate the significance of concerns relative to site suitability.

NRC did not identify any fundamental technical f]aw or disqualifying factor which it believed wriuld render any of the sites unsuitable for characterization. Further, NRC did ndt take a position on the ranking of the sites in order of preference, bec~use this could be viewed as a prejudgment of licensing issues. NRC was not aware.of any reason that would indJcate that any of the candidate sites was unlicenseable. Nor has NRC made any such finding to date with respect to any site identified as potentially acceptable.

In March 1987, Congress began drafting legislation to amend the repository program. NRC provided comment~ on a number of these draft amendments. In December 1987, the NWPAA wa~ enacted. In a major departure from the initial intent of the NWPA, the new law required that DOE suspend site characterization activities at site& other than the Yucca Mountain site. This decision was not based on a technical evaluation of the three recommended sites or a conclusion that the Hanford and Deaf Smith site~were not technically acceptable.

According to sponsors of the legislation, the principal purpose of the

. requirem~nt to suspend characterization at these sites was to redute costs. In effect, the NWPAA directed DOE to characterize candidate sites sequentially, if necessary, rather than simultaneously. If DOE determines at any time that the Yucca Mountain site is unsuitable~ DOE is to terminate all site c_haracterization al:_tivities and report to Congress its recommendations for' further action~.

The NRC staff has identified numerous issues regarding the Yucca Mountain site that may have a bearing on the l i censeabi l i ty of that site. These issues wi 11 have to be resolved during site characterization. An example of a site issue that may bear on the question of suitability is tectonic activity, the folding or faulting of the earth's crust. In the 1984 Waste* Confidence Decision, NRC nbted that " .** the potential sites being investigated by DOE are in regions of.

relative tecton'ic stability." The authority for this statemenf came from the Position Statement of the US Geological Survey (_USGS). NRC has raised concerns regarding tectonic activity at the Yucca Mountain site in the comments on the draft and final EAs, in the draft and final Point Papers on the Consultation

Draft Site Characterization ~lan, and in the Site Characterization Analysis for the Yucci Mountain site. If it appears during site characterization that the Yucca Mountain site will be unable to meet NRC requirements regardi~g isolation of waste, DOE will have to suspend characterization at that site and report to Congress.

DOE's program of site screening in.different geologic media was consistent with Section 112(a) of the NWPA, which required that DOE recommend sites in different geologic media to the extent practicable. This strategy was to ensure that if any one site were found unsuitable for reasons that would render.

other*sites in the same geologic medium unacceptable, alternate sites in different host -rock types would be available. NRC referred to this policy in its 1984 Waste Confidence Decision,~when it satd, in support of its argument on

• technical feasibility, that " ... DOE's program is providing information on site characteristics at a sufficiently large number and var1ety of sites and geologic media to support the expectation that one or more technically acceptable sites will be identified."

NRC recognizes that simultaneous site characterizati-on is not ne~essary to identify a repository site that would meet NRC's technical criteria for isolating wastes. Sequential site characterization does not necessarily preclude or hinder identification of an acceptable site for a repository. NRC did express concern to Congress, on several occasions during deliberations over the proposed legislation, that sequential site characterization could delay considerably the schedule for opening a repository if the site undergoing

characterization were found to be unlicenseable. NRC also indicated that this potential for delay would have to be considered by NRG in reevaluating the findings in its Waste Confidence Decision. The impact of this tedirection of the high-level waste program on the Commission's Waste Confidence findings is not on the ability to identify technically acceptable sites, but on the. timing of availability of technically acceptable sites. Because characterization of multiple sites appears to be more directly related to the timing of repository availability than to the feasibility of g*eologic disposal, consideration of the above statement in light of the NWPAA program redirection will be discussed under Finding 2.

Another question bearing on whether technically acceptable sites can be found is whether compliance with Environmental Protection Agency (EPA) environmental standards for disposal of spent fuel and high-level waste can be demonstrated.

These standards, originally promulgated in final form in September 1985, were vacated in July, 1987, by the U.S. Court of Appeals, and remanded to EPA for further consideration (see NRDC v. EPA, 824 F. 2d 1258). As originally promulgated, the standards set.limits on releases of radioactive materials from the site into the accessible environment over a 10,000-year period following disposal. They also required that there be less than one chance *in ten that the release limits will be exceeded in 10,000 year~, and less than one chance in 1,000 that rel~ases will exceed ten times the limits over 10,000 years.

In past comments on draft and proposed EPA standards, and in related NRG rulemaking efforts, NRG has expressed concern that probabilistic analyses

should not be exclusively relied on to demonstrate compliance with EPA release limits. NRC's.comments said in part that 11

• • • [t]he numerical probabilities in

[the standards] would require a degree of precision which is unlikely to be achievable in evaluating a real waste disposal system." The comments went on to explain that " ... identification of the relevant processes and events affecting a particular site will require considerable judgment and will not be

- *amenable to accurate quantification, *by statistical analysis, of their probability of occurrence." NRC believed then, and continues to believe, that it must make qualitative judgments about the data and methodologies on which the numerical probabilities were based.

In response to NRC concerns, EPA incorporated langua~e into its 1985 standards that appeared to a:Vlow flexibiliti to' combine qualitat,,ive judgments with numerical probability estimates in a way that might have made implementation of the EPA standards practicable. The text of those standards recognized that "proof of the future performance of a disposal system is not to be had in the ordinary sense of the word" with the substantial uncertainties and very long performance period involved. The 1985 standards emphasized that a "reasonable expectation -- rather than absolute proof -- is to be the test of compliance.

"What is required," the text of the standards said, 11 is a reasonable expectation, on the basis of the record *.* , that compliance .** will be achieved." In an additional attempt to provide flexibility for implementation of the standards, EPA also provided that numerical analyses of releases from a repository were to be incorporated into an overall probability distribution only "to the extent practicable." This phrase appeared to allow some

discretion for NRC to incorporate qualitativ~ considerations into its license decision-making, rather than having to rely solely on numerical projections of r*epos itory performance. On the strength of these and other EPA assurances, the Commission did not object when the final standards were published in 1985.

The Commission also notes that the EPA standards, as promulgated in 1985, contained a provision for development of alternative standards by EPA. The Federal Register text (50 FR 38074, September 19, 1985) describing this alternative standards provision stated:

There are several areas of unce_rtainty the Agency [EPA] is aware of that might cause suggested modifications of the standards in the future. One of th~se concerns is implementation of the containment requirements for 0

mined geologic repositories. This will req uire collection of a great deal of data duriffg*site characterization, resolution of the inevitable**

uncertainties in such information, and adaptation of this information into probabilistic risk assessments. Although the Agency is currently confident that this will be successfully acco~plished, such projections over thousands of years to determine compliance with' an environmental regulation are unprecedented. If--after substantial experience with these analyses is acquired--disposal systems that clearly provide good isolation e:,

cannot reasonably be shown to comply with the containment requirements, the Agency would consider wheth*er modifications to [the standards] were

• appropriate.

• This statement suggests to the Co~mission that EPA would be willing to consider modifications to the standard's containment requirements in the event that their probab~listic formulation is found to hamper or preclude an adequa~e evaluation of a proposed repository's capability to isolate radioactive waste.

Purs~ant to the remand by the Federal court in 1987, EPA. is currently revising its standards for disposal of spent fuel and high-level waste. The court's

• decision directed that the remand focu~ on the ground water and individual protection requirements of the standards. Although the EPA standards are still undergoing development at this time, the Commission does not currently see a sufficient basis to withdraw its confidence in the feasibility of evaluating compliance with such standards. NRC staff will closely monitor the development of the repromulgated standards.

In sum, considering both past and current programs for characterizing sites, the Commission concludes that technically acceptable sites for a repository can be found. The Commission is confident that, given adequate time and resources, such sites can be id~ntified, evaluated, and accepted or rejected on their merits, even if no more than one site is undergoing site characterization.

This. judgment does\:;not rest on the. a¢ceptability of the. Yucca Mountain site or any one future candidate site.

l.A.2. The development of effective waste packages.

1.A.2.a. Considerations in developing waste packages.

The NWPA required NRC to promulgate technical requirements and criteria to be applled in licensing a repository for high-level radioactive waste.

• Under Settion 121 of the Act, these tec~nical criteria must provide for use.of a system of multiple barriers in the design of the repository and s~ch restrictions on the retrievability of waste as NRC deems appropriate. The system of multiple barriers includes both. engineered and natural barriers.

The waste package is the first engineered barrier in the system of multiple barriers to radionuclide escape. The waste package is defined as the 11 waste form and any containers, shielding, packing and othei absorbent materials immediately surrounding an individual waste container. 11 Before sinking an exploratory shaft for site characterization, DOE is required to prepare an SCP including a description of the waste form or packaging ,proposed for use at the repository, and an explanation of the relationship between such waste form or packaging and the geologic medium of the site.

The multiple barrier approach to radioacti.ve waste isolation in a geologic repository is implemented in NRC requirements by a number of performance objectives and by detailed siting and design criteria. The NRC performance 9bjective for the~waste package requires substantially complete containment for a period of not less than 300 years nor more than 1000 years after permanent closure of the repository. The technical design criteria for the waste package require that interaction of the waste package with the environment not compromise performance of the package, the underground facility, or the geologic setting. Therefore, the waste package design must take into account the complex site-specific interactions between host rock, waste package, and groun*d water that'will affect waste package and overall repository performance.

Under the NWPAA, DOE was required to suspend site characterization activities at sites other than the Yucca Mountain, NV siie. Consequently, DOE has narrowed the range of waste package designs to a d~sign tailored for unsaturated tuff at the Yucca Mountain site. This aspect of the high~level

waste program redirection may facilitate and expedite the waste package design process insofar as it enables DOE to concentrate its efforts on developing a

. single design for a single site instead of three designs for sites in bedded salt, basalt, and unsaturated tuff.

Currently, DOE is evaluating uncertainties in waste package design related to waste form, container type, and environment. The current conceptual design for the waste package is based on several assumptions. The waste form is presumed to be ten-year-old spent fuel or high-level waste in the form of borosilicate glass in stainless-steel canisters. (In addi.tion to spent fuel and high-level waste; the waste form may include greater-than-Class C (GTCC) low-level waste.

This waste is not routinely acceptable for near-surface disposal under NRC regulations for disposal of low-level*wastesi but is acceptable for disposal in

.* a repository licensed for disposal of spent fuel and high-level wastes. This

,waste might include such materials as sealed sources and activated metals from the decommissioning of reactors and production facilities.)

Six mater,als are be:ing considered for fabrication of containers, including austenitic steel (316L), nickel-based alloys (Alloy 825), pure copper (CDA 102), copper-based alloys (aluminum-bronze, CDA-613, and 70-30 Cu-Ni, CDA-715),

and a.container with a metal outer shell and ceramic liner. The reference container for the spent fuel and high-level waste is a 1.0-cm thick cylinder to be made of American Iron and Steel Institute (AISI) 304L stainless steel. This will be DOE's benchmark material, against which other materials are to be compared. DOE currently intends for spent fuel containers to be filled with an

inert gas, such as argon, before being welded closed. In addition to these six I

materials, DOE also plans to assess the merits of alternative waste p~ckage materials and designs.

The reference repository location is in the unsaturated tuff of the Topopah Spring Formation underlying Yucca Mountain. According to DOE, little free-flowing water is thought to be present there to contribute to corrosion of the waste containers, although the degree of saturation in. this tuff is estimated to be 65 +/- 19 percent of the available void space in the rock. DOE has acknowledged, however, that the greatest uncertainties in assessing waste package performance at Yucca Mountain stem from difficulty in characterizing and modeling the coupled geochemical-hy.drologic processes that represent the i.,nteractions between the host rock; waste package, and ground. water. The final waste package design will depend on the results of site characterization and laboratory *testing to reduce uncertainty in predicting these interactions in the reference repository horizon. The final design will also be shaped by research in understanding the degradation of candidate container materials, and the characteristics of the likely reference waste forms.

Regarding the state of technology for devel~ping long-lived waste package containers, the Swedish Nuclear Fuel and Waste Management Company (SKB),*the r*

organization responsible for radioactive waste disposal in Sweden, has described a container for spent fuel rods that consists of a O.l~m thick copper canister surrounded by a bentonite overpack. The design calls for pouring copper powder into .the void spaces in the cahisters, compacting the powder

using hot-isostatic pressing with an inert gas, and sealing the canisters. SKB estimates that the copper canister waste package has a million-year lifetime.

(See also l.B.3. below.)

As noted in NRC s Final Point Papers on the Consultation Draft Site 1

Characterization Plan, the Commission does not expect absolute proof that 100 percent of the waste packages will have 100 percent containment for 300 to 1000 years. Since that time, the NRC staff has completed its review of the December

• 1988 Site Characterization Plan for Yucca Mountain. Although the Commission continues to have concerns about DOE s waste package program, nothing has 1

occurred to diminish the Commission's confidence that as long as DOE establishes conservative objectives to guide a testing and de~ign program, in tuff or in other geologic media if.necessary, it is technically feasible to develop a waste package that meets the performance objective for substantially complete containment.

l.A.2.b. Effect of reprocessing on waste form and waste package.

The Draft 1988 Mission Plan Amendment estimates that about 77,800 metric tons of heavy metal (MTHM) of spent nuclear fuel will be available for disposal by the year 2020. (This estimate is based on a no new orders 11 11 assumption for commercial nuclear reactors and a 40-year reactor lifetime.) Also, approximately 9400 MTHM of reprocessed defense waste and a small amount of commercial reprocessed waste from the Hest Valley Demonstration Project is estimated to be available for disposal by 2020. The decision to locate the

defense high-level waste in the repository for wastes from commercial power reactors resulted from the requirement in Section 8 of the NWPA that the President evaluate the possibility of developing a defense-waste-only repository. In February 1985, DOE submitted a report to the President

. recommending a combined commercial and defe11se repository. In April 198.5, th.e President agreed that no basis appeared to exist for a defense-only repository and directed DOE to dispose of defense waste in the commercial repository.

About 8750 MTHM of reprocessed high-level waste from defense facilities at Savannah River, SC, Hanford, WA, and Idaho Falls, ID will be.available by 2020 for disposal in the repository, according to the Draft 1988 Mission Plan Amendment. This waste will likely be solidified into a borosilicate glass matrix. About 640 MTHM of reprocessed high-level waste will come from the West Valley Demonstr_ation Project, a facility for wastes from discontinued corrunercial reprocessing of spent fuel at that site. This reprocessed \'1aste also will be solidified, probably in a borosilicate glass waste form.

Waste-form testing for the Yucca Mountain site is focusing on both spent fuel and reprocessed high-level waste. The performance of the waste form in providing the first barrier to r~dionuclide migration is being evaluated on the basis of the physical and chemical environment of the wast~ *form after disposal, the performance of the waste container, and the emplacement configuration.

A major limitation on glass waste-form testing is that the actual waste glasses to be dispos~d of are not available, and their exact composition will not_be established until after.further testing. Reference .waste-gl~ss compositions are being used for studies on the effect of variation in glass composition on performance. (These glass compositions are designed by Savannah River Laboratory (SRL) for defense high-level waste, and by Pacific Northwest Laboratory (PNL) for the commercial high- level wastes to be vitrified under the West Valley Demonstration Project Act.) The reference compositions wi 11 be revised when better analyses of' the composition of the wastes at SRL and West Valley are available. The test program will seek to establish upper bounds on leaching of important radionuclides, and the extent to which glass fracturing increases leach rate. Other factors influencing leach rate are temperature, pH of the leaching so;lution, formation:of solid layers on the surface of the waste glass, irradiation, water volume, and chemistry.

It is possible that renewed reprocessing of spent fuel from nuclear power reactors may result in a greater proportion of. reprocessed waste to spent fuel than is currently anticipated. Although such a departure from the current plan to dispose of mostly unreprocessed spent fuel in the repository does not appear likely at thi"s time, the Commission believes it 1is important to recognize the possibility that this situation could change.

The possibility of disposal of reprocessed waste as an alternative waste form to spent fuel assemblies was recognized by the Commission in the 1984 Waste Confidence Decision. The Commissi.on noted that the disposal of waste from

reprocessing had been studied for a longer time than the disposal of spent fuel, and that the possibility of reprocessing does not alter the technical feasibility of developing a suitable waste package. The Commission went on to say that there is evidence that the disposal of reprocessed high-level waste may pose fewer technical challenges than the disposal of spent fuel. As long as DOE uses conservative assumptions and test conditions for evaluating the performance of different waste forms against NRC licensing requirements, the Commission has no basis to change its finding that there is reasonable assurance that reprocessing does not reduce confidence in the technical.

feasibility of designing and building a waste package that will meet NRC licensing requirements in a variety of geologic media.

l.A.3. The development of effective engineered barriers for isolating wastes from the biosphere.

l.A.3.a. Backfill Materials.

At the time of the 1984 Waste Confidence Decision, DOE was developing conceptual designs for backfill in several geologic media. Most candidate sites at that time were in saturated rock, and the conceptual designs included backfilling or packing around waste containers to prevent or delay ground water flow which could enhance corrosion and radionuclide transport near the waste containers. The conieptual design for the engineered barrier system at the Yucca Mountain site has different parameters because the site is unsaturated; instead of backfill or packing around the waste container, there is to be an

Backfill material around the container is not required under NRC regulations for the waste package. NRC regulations require that 11

• • • containment of high-level waste within the waste packages [which includes the container] will be substantially complete for a period to be determined by the Commission provided, that such period shall not be less than 300 years nor more than 1000 years after permanent closure of the repository" [10 CFR Subsection 60.113(a)(l)(ii)(B)], and that the entire engineered barrier system meet the release rate performance objective of 1 part in 100,000 per year.

Backfill is also a component of the borehole, shaft, and ramp seals, which .are not part of the engineered barrier system or the underground facility.

Boreholes, shafts, and ramps must be sealed when the repository is permanently closed. This aspect of backfilling is discussed below under "Development of Sealants." Backfill may also include crushed rock used to fill openings such as drifts in the underground facility. At the Yucca Mountain candidate site, DOE currently plans to fill openings in the underground facility at closure of the repository. Backfilling is not planned before repository closure because it is not needed for structural support for the openings, and it would make waste retrieval more difficult. At closure of the facility, however, openings

':1il1 t:2 backfilled with coarse tuff excavated for the facility. In the conceptual design provided in the SCP, the selection of coarse tuff as backfill material is based on numerical simulations performed by DOE which suggest that coarse tuff would be a more effective barrier to capillary flow in the backfill matrix than fine materials.

DOE's design for the engtneered barrier system submitted with the license application will have to contain information sufficient for. NRC to reach a favorable conclusion regarding the overall system performance objective.

Backfill or packing around waste containers is not required by NRC regulations if DOE can demonstrate that applicable p~rformance objectives can be met without it. If, on the basis of testing and experiments during site characterization, DOE decided that backfill would enharice engineered barrier I

system performance, the design would have to reflect this conclusion. DOE has already conducted research on a wide. variety of candidate materials for backfill around waste packages in a variety of geologic media. The Commission continues to have confiderice that backfill or packing materials can be developed as needed for the underground facility and waste package to meet applicable NRC lic~nsing criteria and performance objectives.

1.A.3.b. Borehole and shaft seals.

The engineered barrier system described above is limited to the waste package and the underground facility as defined in 10 CFR Part 60. The underground facility refers to the underground structure, including openings and backfill materials, but excluding shafts, boreholes~ arid their seals. Containment and release-rate requirements are specified for the engineered barrier system, but not for the borehole and shaft seals. Seals are covered under 10 CFR Sectton 60.112, the overall post-closure system performance objective for the repository. Among other things, this provision requires that shafts, boreholes and their seals be designed to assure that releases of radioactive materials to

the accessible environment fQllowing permanent clos~re conform to EPA s 1 generally applicable standards for radioactivity. Although the criteria for seals given in 10 CFR Part 60 do not specifically mention seals in ramps and the underground facility, it is reasonable to consider them together with borehole and shaft sealants, because the seals and drainage design in ramps and the underground facility could also affect the overall system performance of

• the geologic repository.

Construction of the exploratory shaft facility (ESF) will be the first major site characterization activity at the repository horizon. Currently, DOE is reviewing its plans for construction of exploratory shafts. According to the 1989. 11 Reassessment Report," DOE is reevaluating the "locations chosen for the two e.xploratory shafts, the niethod.:chosen (drilling and blasting) for the*

construction of the shafts, the means of access (ramps or shafts) to the repository horizon, the need for additional exploratory drifts, and the design of the shafts and other components of the exploratory shaft facility. 11 This reevaluation of plans for the shaft facility is in response to concerns from the NRC staff and the Nuclear Waste Technical Review Board (NWTRB).

When the repository is decommissioned, NRC expects that most, if not all.,

shafts, ramps, and boreholes will probably have to be sealed to reduce the possibility that they could provide ,preferential pathways for radionuclide migration from the underground facility 'to the accessible environment. DOE estimates that as many as 350 shallow and 70 deep exploratory boreholes may be emplaced by the time site characterfzation has been completed at the Yucca

Mountain site. Decommissioning may not occur for up to 100 years after commencement of repository operations .. Becausethe final design for seals will likely have been modified from the initial license application design (LAD),

DOE is viewing the seal LAD as serving two primary functions. As set forth in DOE 1 s SCP for the Yucca Mountain candidate site, the seal LAD is to establish that: (1) 11

• • • technology for constructing seals is reasonably available; 11 and (2) 11

• • • there is reasonable assurance that seals have been designed so that, following permanent closure, they do not become pathways that compromise the geologic repository's ability to meet the post-closure performance objectives. 11 To establish the availability of technology for seal construction, DOE has i~entified at least 31 site properties that need to.b~ characterized in determining neces*_sary seal characteri.stics. These properties include saturated hydraulic conductivity of alluvium near shafts, the quantity of water reaching the seals due to surface-flooding events, and erosion potential in the shaft vicinity. The SCP-also discusses material properties that need to be identified to determine sealing components such as initial and altered hydrologic properties of materials.

The SCP indicates that DOE is planning to use crushed tuff and cements in the sealing program at the Yucca Mountain candidate site. The* stated advantages of using tuff include minimizing degradation of seal material and avoiding

• disruption of ambient ground-water chemistry.

. 00E's current design concept for meetirig the overall performance objectives includes a combination~of sealing and dr~inage. Seal requirements may be reduced in part by: (1) limiting the amount of surface water that may enter boreholes, shafts, and ramps; (2) selecting borehole, shaft, and ramp locations and orientations that.provide long flow paths from the emplaced waste to the accessible environment above the repository; and (3) mainta.ining a sufficient

• rate of drainage below the repository horizon level so that water can be shunted past the waste packages without contacting ~hem.

Although D0E's program is focusing on seals for the Yucca Mountain candidate site, the Commission 'finds n6 basis for diminished confidence that an acceptable seal can be developed"for carididate iites in different geologic media. The Commission finds no evidence to suggest that it can not *continue to have reasonable assurance that borehole, shaft, ramp, and repository seals can be developed to meet 10 CFR Part 60 performance objectives.

1.8. Relev~nt Issues That Have Arisen Since the. Commission's Original Decision.

1.B.1. In support of its argument on technical feasibility, the Commission stated in its 1984 Waste Confidence Decision that 11

• • • DOE's program is providing i'nformation on site characteristics at a sufficiently large number and variety of.sites and geologic media to support the expectation that one or more technically acceptable sites will be identified." The NWPAA required, however, that DOE suspend

• site-specific site characterization activities under the Nuclear Waste Policy Act of 1982 at all sites other than the Yucca Mountain, NV site.

,/

Under the NWPAA, the DOE program has been redirected to characterize candidate repository sites in sequence rather than simultaneously. If the Yucca Mountain site is found to be unsuitable, DOE must terminate site characterization activities there and provide Congress with a recommendation for further action, such as the characterization of another site. Because characterization of multiple sites now appears to be more directly related to the timing of repository availability than to the technical feasibility of geologic disposal as a concept, consideration of the Commission's aforementioned 1984 statement in light of the NWPAA will be discussed under Finding 2.

1.8.2. What is the relationship, if any, of the 11 S-3 Proceeding" to the current review of the Commission's 1984 Waste Confidence Findings?

Would the planned revision of the S-3 rulemaking be affected if the Commission had to qualify its current confidence in the technical feasibility of safe disposal?

In its decision to remand to NRC the questions of whether safe offsite storage I .

would be available by 2007-2009, or, if not, whether spent fuel could be safely stored onsite past those dates, the U.S. Circuit Court of Appeals observed that the issues of storage and disposal of nuclear waste were being considered by the Commission in an ongoing generic proceeding known as the "S-3" Proceeding.

The S-3 Proceeding was the outgrowth of efforts to address generically the NEPA requirement for an evaluation of the environmental impact of operation of a light water reactor (LWR). Table 5-3 assigned numerical values for environmental costs resulting from uranium fuel cycle activities to support one year of LWR operation. NRC promulgated the S-3 rule in April 1974. In July

1976, the U.S. Circuit Court of Appeals found that Table S-3 was inadequately supported by the record regarding reprocessing of spent fuel and radioactive

. waste management, in part because the Commission, in reaching its assessment, had relied heavily on testimony of NRC staff that the problem of waste disposal would be resolved.

When the U.S. Circuit Court of Appeals issued the ~emand on what.were to become the* "Waste Confidence". issues in May 1979, NRC had pending before it the final amended S-3 rule. The Court regarded the resolution of the issue of waste

-disposal in the S-3 proceeding as being related to the issue raised by the petiti~ners in the appeals of the NRC decisions on the expansion of spent fuel storage capacity. The Court said that the 11

• • • disposition of the S-3 proce~ding, though.it has a somewhat different focus, may have a bearing on the

• pending cases. 11 The Commission approved the final S-3 rule in July 1979. In October 1979, the Commission issued a Notice of Proposed Rulemaking (NPR) on the Waste Confidence is5ues in response to the remand by the Court of Appeals. In the NPR, the Commission stated that the proceeding would 11

• • • draw upon .the record compiled in the Commission's recently concluded rulemaking on the environmental impacts of the nuclear fuel cycle, and that the record compiled herein will be available for use in the general fuel cycle rule update discuss~d in that rulemaking. 11

In the final Table S-3 rule issued in 1979, the Commission had said that

... bedded salt sites can be found which will provide effective isolation of radioactive waste from the biosphere." When the Commission issued the 1984 Waste Confidence Decision, part of the basis for the discussion of waste management and disposal in the August 1979 final S-3 rule had changed. For

~

example, in 1984 the repository program was proceeding under the NWPA, which required that DOE recommend three sites for site characterization.

NRC is preparing to amend 10 CFR 51.51, adding new estimates for releases of Tc-99 and ~n-222, and a revised narrative explanation describing the basis for values contained in Table S-3. The amendment would also explain the environmental effects of potential releases from the light water reactor (LWR) fuel cycle, and po_stulate the potential radiation doses, health effects, and environmental impacts of these releases. It is unlikely that the revision will have any impact on the Commission's generic findings in the Waste Confidence proceeding. Nor is it likely that this reexamination of the Waste Confidence findings will affect the S-3 rule; the Waste Confidence Proceeding is not intended to make quantitative judgments about the environmental costs of waste disposal. Unless the Commission, in a future review of the Waste Confidence decision, finds that ft no longer has confidence in the technical feasibility of disposal in a mined geologic repository, the Commission will not consider it necessary to review the S-3 *rule when it reexamines its Waste Confidence findings in the future.

l.B.3. To what extent do developments in spent fuel disposal technology outside of the United.States (e.g., Swedish waste package designs) enhance NRC's confidence in the technical feasibility of disposal of

• high- level waste and spent fuel?

Spent fuel disposal technology is the subject of ext~nsive research investigation fn both Europe and North America. Advances in this technology are being communicated to the NRC staff both through bilateral agreements and

- the presentation of research results at international meetings.

Outside the u~s., studies of spent fuel as a waste form are no~ being conducted primarily in Canada and Sweden, although both France and West Germany have small programs in this area. The Swedish studies have been mainly concerned with boiling water reactor (BWR) spent fuel, whereas the Canadian studies f6cus on spent fuel from that country s CANDU reactors, which use unenriched uranium 1

in a core immersed in 11 heavy water made from deuterium,.

11 BWR and CANDU fuel, 4lt like pressurized water reactor (PWR) fuel, are uranium dioxide fuels clad in zircaloy. However, the burnup rates for these three fuel types vary considerably. Ongoing research studies on spent fuel include: work on the characterization of s~ent fuel as a waste form; the corrosion of spent fuel and i~s dissolution under oxidizing and reducing conditions; the radio1ysis of ground water in the near vicil']ity. of the spent fuel, and its effects on the*

dissolution of the fuel; and the development of models to predict the leaching of spent fuel over long time peribds. The results of this work are steadily increasing our understanding of spent fuel as a waste form.

High-leyel radioaGtive waste, whether it is .spent reactor fuel or waste from reprocessing, must be enclosed in an-outer can~ster as part of the waste package. The canister surrounding the waste is expected to prevent the release of radioactivity during its handling at the repository site before emplacement.

After emplacement in the repository, it is expected to prevent the release of radioactivity for a specified period of time after the repository is closed, by providing a barrier to protect the waste from coming into contact with ground water.

For practical reasons, canister materials may be divided into the following classes: 1) completely or partially thermodynamically stable materials such as copper; 2) passive materials such as stainless steel, titanium, Hastelloy, 0

Inconel, and aluminum~ 3) corr6ding or sacrificial ~ateria~s such as lead and steel; and 4) non-metallic materials such as alumina and titanium dioxide ceramics and cement.

Sweden has been conducting an extensive canister research program over the past several years. The main canister material of interest is copper, but titanium, carbon steel, and alumina and titanium dioxide are also being *studied as reasonable alternatives, should unexpected problems be discovered with using pure copper.

One of the Swedish canister designs is a 0.1-m thick copper container (as described previously in Section l.A.2.a.), which ~s claimed to provide containm~nt, in conjunction with an appropriate backfill material, for a period

on the order of one million years. The critical factors for the isolation period for copper canisters are: (1) the presence of corrosive substances such as sulphide ions in the ground water; (2) the possibility of these substances reaching the canister surface; and (3) the degree of inhomogeneity, or pitting, of the resulting corrosion. Studies are continuing to obtain more information on pitting corrosion of copper and on techniques for welding thick-walled copper containers.

Several conceptual designs for canisters for the safe disposal of unreprocessed spent fuel have also been developed in Canada. One canister design option is the supported-shell, metal-matrix concept, which involves packing the spent fuel bundles into a thin corrosion-resistant shell and casting the remaining space with a low melting point metal or alloy. Structural support for the shell would be provided by the resulting metal matrix. Lead is a possible matrix material because of its favorable casting properties, cost, and low 4t melting point.

Other supported shell canister concepts include the packed-particulate and structurally-supported designs. In these designs, a thin outer shell is suppcirted by a particulate material packed around a steel internal structure that contains the spent fuel bundles. Several materials have been identified for the fabrication of the corrosion resistant outer shell, including commercially pure and low-alloy titanium, high nickel-based alloys such as Inconel 625, and pure copper. Detailed designs have been produced for all three types of supported shell canisters incorporating either a titanium or

nickel alloy shell less than 6-mm thick. A conceptual design has also been produced for a copper-shell structurally-supported canister and a metal-matrix container with a relatively thick (25-mm) copper shell and a lead matrix material~ -This last canister is intended to contain 72 used CANDU fuel bundles in four layers of 18 bundles each.

Both the Canadian and Swedish conceptual designs for the disposal of spent fuel in canisters provide for surrounding the canister with backfill material as part of the waste package when it is emplaced in the repository. This backfill material would be packed arourid the canister to retard the movement of ground water and radionuclides. Investigations of backfill material at the Stripa mine in Sweden have shown that bentonite and silica sand can be employed

-successfully as backfill, both around the canister and in repository tunnels.

A bentonite-silica mixture is the recommended backfill material on the basis of its thermal and mechanical properties. Bentonite backfills have been shown to produce hydraulic conductivities that are ve*ry similar to the surrounding gra_nite at Stripa. Problems-concerning the variability of bentonite samples from different geographic locations can be eliminated if material from a single source is used~ The presence of sulfur and some organic material, including bacteria, in_ many bentonites poses some problems related to microbially-accelerated corrosion. Treatment with hydrogen peroxide may be used to oxidize these organics. Heating the bentonite to 400 degrees C can also be effective, although this may alter the crystal structure of the bentonite.

Many countries intend to dispose of their high-level radioactive waste by first converting the wastes into a solid, vitrified form after reprocessing. Since the leaching of the waste form by circulating ground water after disposal is the most likely mechanism by which the radionuclides might be returned to the biosphere, the waste form must be composed of a highly stable material with an extremely low solubility in ground water. Thus, the waste form itself should function as an immobilization agent to prevent any significant release of radionuclides to the biosphere over very long time periods. The two primary m~terials currently being considered for use as solidified waste forms are borosilicate glass and SYNROC, a man-made titanate ceramic material.

SYNROC was initially developed in Australia as an alternative material to borosilicate glass. Lt is composed primarily of three minerals (hollandite,

. zirconolite, and perovskite) which collectively have the capacity to accept the r,

great majority of radioactive high-level waste constituents into their crystal e lattice structure. These three minerals, or closely related forms, occur naturany, and have been shown to have survived for many millions-of years in a 1~ide range of natural environments. SYNROC has the property of being extremely resistant to leaching by ground water, particularly at temperatures above 100 degrees C. In addition, the capacity of SYNROC to immobilize high-level wastes is not markedly impaired by high levels of radiation damage.

The high leach-resistance of SYNROC at elevated temperatures increases the range of geologic environments in which it may be used, such as deep geologic repositories in both continental and marine*environments.

Research and development work on improving SYNROC production technology is currently being done jointly in Australia and Japan. New methods of using metal alkoxides in the fabrication of SYNROC to obtain high homogeneity and lowered leachability have recently been developed in Australia. The Japanese have recently developed a new method that uses titanium hydroxide, as a reducing agent to produce SYNROC with a high density and low leach rate. A pilot facility for th~ production of non-radioactive SYNROC is now in operation in Australia, and a small pilot facility for producing SYNROC with radioactive constituents is being completed in Japan.

On the basis of current information from the foreign studies just described on canisters, spent fuel as a waste form, backfill materials, and alternatives to borosilicate glass waste forms, the Commission concludes that there is no basis for diminished confidence that an acceptable waste package can be developed for safe disposal of high-level waste and spent fuel.

1.C. Conclusion on Finding 1.

The Commission has reexamined the basis for its First Finding in the 1984 Waste Confidence Decision in light of subsequent program developments, and concludes that Finding 1 should be reaffirmed.

The technical feasibility of a repository rests initially on identification of acceptable sites. At this time, the Commission is not aware of any evidence indicating that Yucca Mountain is not acceptable for site characterization.

- 89 .;.

There are many outstanding questions regarding the licenseability of the site, however, and ttiey must be answered satisfactorily in order for NRC to issue a construction authorization for that site. If data obtained during site characterization indicate that the Yucca Mountain site i~ not suitable for a repository, DOE is required by the NWPAA to terminate site characterization activities and report to Congress. Within six months of that determination,.

DOE must make a recommendation to Congress for further action to assure the safe, permanent disposal of spent fuel and high-level waste. DOE could*

recommend, for example, that Congress authorize site characterization at other sites. Considering DOE s investigations of other potentially acceptable sites 1

before *its exclusive focus on Yucca Mountain, the Commission has no reason to believe that, giv~n adequate time and program resources, a technically*

acceptable site can not be found.

The technical feasibility of geologic disposal also depends on the ability to

- develop effective engineered barriers, such as waste packages. DOE is currently evaluating six candidate materials for waste containers, including austenitic steel and copper- and nickel-based alloys, and is planning waste-*

form testing based on both spent fuel and high-level waste in borosilicate glass. On the basis of DOE s program, and results from Swedish investigations 1

of a copper waste container, the Commission is confident that, given a range of waste forms and conservative test conditions, the technology is available to design acceptable waste packages.

In addition to the materials testing for the. waste container and waste form, there may be additional measures that can be taken to improve the effectiveness of the engineered bafriers. It is known, for example, that the heat~loading characteristics of the wastes diminish with time.* Also, the longer wastes are stored before disposal, the smaller will be the quantities of radionuclides.

available for transport to the accessible environment.

It is also technically. feasible to. separate greatest long-term concern.

j from radioacti~e ~astes the radionuclides.that constitute the principal sourc~ of heat from the nuclides of The former radionuclides; mainly fission products such as cesium-137 and.strontium-90, could then be stored for a period of years while the fission products decay to the point where they could be disposed of either in a manner that does nolrequire the degree of confinement provided by a geologic repository, or in a repository with less concern for thermal disturbance of- the host rock 1 s expected wa~te isolation properties .. Meantime, the longer-lived remaining radionuclides, such as transuranic wastes with elements heavier than uranium, could be disposed of in a repository a:way from the fission products and without the high thermal loadings that would otherwise have to be considered in predicting the long-term*waste isolation performance of the geologic setting. France, Great Britain, and Japan are currently pursuing this waste management strategy or a variant of iL -

The Commission emphasizes here that it does not believe that recycling technologies are required for the safety or feasibility of deep geologic disposal in the United States. Othef countries, such as Canada, the Federal

• Republic of Germany, and Sweden are pursuing disposal strategies based on a similar view. Reprocessing, if employed in its current stage of development, would result in additional exposures to radiation and volumes of radioactive wastes to be disposed of. For the purpose of finding reasonable assurance in the technical feasibility of geologic disposal, however, it is worth noting that technology is currently available to permit additional engineering control of waste forms if, for reasons not now foreseen, such control were deemed desirable at some future time. Meanwhile, the Commission continues to have confidence that safe geologic disposal is technically feasible for both spent fuel and high-level waste.

DOE s reference design for the waste package in the December 1988 Site 1

Characterization Plan does not include backfill or packing around waste containers in the emplacement boreholes. Neither is required under NRC rules so long as DOE can show that applicable regulatory criteria and objectives will

- be met. An air gap between the container and the host rock is currently one of the barriers in DOE s design for meeting the performance objective.

1 DOE has conducted investigations on a variety of candidate materials for backfill in a variety of geologic media, and the Commission finds no basis to qualify its past confidence that backfill materials can be developed, if needed, to meet applicable NRC requirements.

The December 1988 reference design for sealing boreholes, shafts,_ ramps and the underground facility at the Yucca Mountain candidate site employs crushed tuff and cement. Regardless of the geologic medium of the candidate site,*DOE will

have to show that the license application design m~ets NRC post-closure performance objectives. The Commission continues to have reasonable assurance that DOE s program will lead to identification of acceptable sealant materials 1

for meeting these objectives.

No major breakthrough in technology is required to develop a mined geologic repository. NRC will not be able to .license a repository at a p,articular site, however, until there is sufficient information available for that site. The information needed to license a site includes site characterization data, data on repository design, and waste package design sufficient for performance assessment of the entire waste disposal system. Further, the Commission recognizes the challenge posed by the need to predict impacts of a repository

.on human health and the environment over very long periods of time. It will not be possible to test the accuracy of long-term repository performance assessment ~odels in an absolute sense. The NRC does believe that existing performance assessment models have the potential to provide a basis for deciding whether a system for geologic disposal of high-level waste is acceptable, and can provide a sufficient level of safety for present and future

. generations under certain conditions. These conditions include add!'essing unceftainties, and gathering data from specific sites.

Overall, from its reexamination of issues related to the technical feasibility of geologic disposal, the Commission concludes that there is reasonable assurance th~t safe disposal of high~level ~aste and spent fuel in a mined geologic repository is technically feasible.

Original Finding 2: The Commission finds reasonable assurance that one or more mined geologic: repositories for c.ommer~ial high-level waste and spent fuel will

.be available by the years 2007-2009, and that sufficient repository capacity will be ava.ilable within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high-level radioactive waste and spent fuel originating in that reactor and generated up to that time.

Revised Finding 2: The Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-:-first century, and tha-t sufficient repository capacity wi 11 be available within* 30 years beyond the licensed life for operation (which may include the term of a revised or renewed ~icense) of any reactor to dispose of the commercial high-level radioactive waste and spent fuel originating in such

• reactor and generated up to that time~

2.* A. Issues Considered in Commission's 1984 Decision on Finding 2.

2.A.1. Finding Technically Acceptable Sites in a Timely Fashion.

In order for the Commission to find that any candidate site for a repository is r

technically acceptable (that is, in compliance with NRC licensing requirements), th~ site must undergo comprehensive site characterization to

. assess its hydrologic, geologic, geochemical, and rock mechanics properties.

It is possible that a site may be found unacceptable on the basis of surface-based testing, early in-situ testing or other site characterization

activities. It will not be possible, however, for the NRC staff to take a position before a licerising board that a site will meet NRC requirements for construction authorization until the results of all site characterization activities are available. Even then, the staff may conclude that the evidence from site characterization does not constitute reasonable assurance that NRC performance objectives will be met. Also, the results of the licensing hearings on construction authorization cannot be predicted. If construction is authorized and ,when it is -substantially complete, DOE is required to obtain, in addition to the construction authorization permit, a license to receive and possess waste at the geologic repository operations area in order to commence repository operations. These considerations argue for maintaining the ready

• availability of alternative sites if, after several years, site tharacterization or licensing activities bring to light difficulties at the~

leading candidate site.

In support of its argument on technical feasibility, the Commission stated in its 1984 Waste Confidence Decision that 11

• • • DOE's program is providing information on site characteristics at a sufficiently large number and variety of sites and geologic media to support the expectation that one or more te,chnically acceptable sites will be identified." At the time, DOE was

. required under the NWPA

• to characterize t_hree candidate repository sites.

The NW PAA had a major impact on DOE' s repository program, however. Under the NWPAA, DOE was required to suspend site-specific activities at the Hanford, WA and Deaf Smith County, TX sites, which had been approved by the President for

• site characterization for the first repository. Redirection of the repository . i program to single-site characterization (or, if necessary, sequential site I characterization if the Yucca Mountain site is found to be unsuitable) will permit DOE to concentrate its efforts and resources on information gathering at a single site, as opposed to spreading out its efforts over a range of sites.

The possible schedular benefits to single-site characterization, however, must be weighed for the purposes of this Finding against the potential for additional delays in repository availability if the Yucca Mountain site is found to be unsuitable. By focusing DOE site characterization activities on Yucca Mountain, the NWPAA has essentially- made it necessary for that site to be found suitable if the. 2007-2009 timeframe for repository availability in the Commission's 1984 Decision is to be met. Clearly, the Commission cannot be certain at this time that the Yucca Mountain site will be acceptable.

Although the Commission has no reason to believe that another technically 41 acceptable site can not be found if the Yucca Mountain site proves unsuitable, several 'factors raise reasonable doubts as to the availability of even one repository by 2007-2009. These include: (1) the current reliance on a single site with no concurrently available alternatives; (2) the probability that site characteriz~tion activities will not proceed entirely without problems; and (3) the history of. schedular slippages since passage of the NWPA. For example, DOE's schedule for the first repos,itory slipped five years (from.1998 to 2003) between January 1983, when the NWPA was enacted, and January 1987, when the

• fir~t Draft Mission Plan Amendment was issued. The schedule for excavati~n of the exploratory shaft for the Yucca Mountain site has slipped by more than five

years since th~ i~~uance of the PDS in March 1986. In the past several years,

.DOE has cited numerous reasons for program slippages, including the need for a consultation process with States and Tribes, Congressional actions (e.g., the barring of funds in the 1987 budget appropriation for drilling exploratory shafts), and DOE's recognition that the EIS and license application would require more technical information than previously planned.*

In the November 1989 "Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program, 11 DOE announced a further extension of three years until 1992 for sinking the exploratory shaft, and extensions until 2001 for submittal of the license application and 2010 for _repository availability~ DOE attri.butes the causes for th~se delays to prolonging the

~:schedule for site, characterization and repository development activities, and to the unwillingness, to date, of the State of Nevada to issue the permits required for DOE to begin testing. In the Reassessment Report, 11 DOE proposes to focus the repository program on the evaluation of features of the site that can be studied through surface-based testing, beg inn*; ng in January 1991. The aim of this surface-based testing program is to make ari early determination as to whether there are any features of the site that would render it u.nsuitabJe for development as a repository. Of course, the site may be found unsuitab*le or unlicenseable at any time during the site characterization or licensing process. The NRC supports DOE's efforts to reach an early determination that this may be the case. If the Yucca Mountain site is unsuitable, it will be necessary to begin work to identify and characterize another candidate site for

a repository.

• The sooner this determination is made, the sooner DOE will have an alternative site available'foi disposal of high-level waste.

The NRC had anticipated additional delays in repository program milestones when it issued its Proposed Waste Confi~ence Decision Review (54 FR 39767). *one of the key issues in the repository program to date has been the need for DOE to develop a qualified quality assurance (QA) program. For example, DOE has take.n the position, with which NRC agrees, that sinking of exploratory shafts .should not occur before it has a qualified quality assurance (QA) program in place.

The Commission believes that DOE s aggressive, success-oriented schedule for 1

this milestone did not allow for unexpected developments. Indeed, the effort to develop an acceptable QA program has, in itself, identified problems in design control and other processes that must be resolved in order tti establish a qualified program that addresses all applicable NRC licensing requirements.

DOE has made progress in development of its QA program with seven contractor plans accepted in October and November 1989. NRC expects that DOE should be able to have the study plans and technical procedures which implement the contractor plans ready in time for surface-based testing at the Yucca Mounta.in site to begin by January 1991, consistent with the schedule for starting

~urface-based*testing in the Reassessment Report.

DOE s current schedule appears to be more realistic than previous schedules.

1 Yet even this schedule could prove unattainable due to difficulti~s of a non-technical nature that are outside of DOE 1 s control, for example litigation over gaining access to the Yucca Mountain site. Although the NWPAA is a clear

and strong reaffirmation of Congressional support for the timely development of a repository, the Commission in this Waste Confidence review cannot ignore the potential for delay in repository availability if the Yucca Mountain site, or any other single site designated for site characterization, is found to be unsuitable. Withou*t alternative sites undergoing simultaneous characteriza,tion or even surface-based testing, DOE will have to begin characterizing another site if the site cutrently selected for characterization proves unsuitable.:

The earlier a determination of unsuitability can be made, the smaller the impact of such a finding would be on the overall timing of repository availability.

DOE has estimated conservatively that it would require approximately 25 years to begin site screening for a second repository, perform site characterization, submit an EIS and license applications, and await authorizations before the repository cou 1d be ready to receive waste.

amendment, DOE stated II It ...

In its June 1987 Mission Plan*

seems prudent to plan that site-specific scr~ening leading to the identification of potentially acceptable sites should start.about 25 years before the start of waste acceptance for disposal." DOE went on to say that it considered this estimate to be conservative becaus.e. it does not account for expected schedular benefits from the first reposito,ry.

program, including improvements in such areas as site screening, site characterization, and performance assessment techniques.

Although DOE's estimate was premised on the successful completion of a program for the first of two repositortes, schedular benefits from improvements in the

understanding of waste isolation processes would still b~ available. The glass.

waste form from the Defense Waste Processing Facility now under construction at Savannah River, SC, for example, will be available for testing under simulated repository conditions well before the turn of the century under current DOE schedules, and improvements in the_ modelling of spent fuel behavior within waste canisters can be applied in performance assessments largely irrespective of the geology of a site. It may also be pertinent that when DOE. made its 25-year estimate for the second repository program in mid-1987, the law at the time required the simultaneous characterization of three sites, so that DOE could not proceed to develop one site for a repository until the completion .of characterization at the site that required the most time.

In view of DOE's new schedule, it .no ' ,longer appears feasible for repository

~ ' '

operation to commence prior to 2010. As stated in the Proposed Decision Review, the Commission does not believe it would be prudent to reaffirm the

- Agency's 1984 finding of reaso.nable assurance that the 2007-2009 timetable will be met. As the Court of Appeals noted in remanding this issue to NRC, the ultimate determination of whether a disposal facility will be available when needed 11

• • • can never rise above a prediction." The Commission is in the position of having to reach a definitive finding on events which are approximately two decades away~ We believe that the institutional timescale for thi~ question can more realistically be framed in decades than in years.

As the program proceeds into the next century, it wi 11, become easier for NRC to make more definitive assessments, if necessary, of the time a repository will be available.

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In light of all these* considerations, the Commission believes it can have reasonable assurance that at least one repository will be available within the first quarter of the twenty-first century. This estimate is based on the time it would take for DOE to proceed from site screening to repository operation at a site other than Yucca Mountain, if this should prove necessary. Assuming for the sake of conservatism that Yucca Mountain would not be found suitable for repository development,* it is reasonable to expect that DOE would be able to reach this conclusion by the year 2000.

• This would leave*25 years for the attainment of repository operations at another site.

NRC will reassess progress towards attaining repository operation by 2025 prior to 2000 during its next scheduled review of its Waste Confidence Findings, if not sooner. DOE s current focus on surface-based testing as an early indicator 1

of repository suitability should help provide a strong basis for evaluating the likelihood of meeting _the 2025 estimate of repository availability.

2.A.2. Timely Development of Waste Packages and Engineered Barriers~

The November 1989 Reassessment Report announced that **~ajor activities related to the design of a repository at the Yucca Mountain site and waste package are being deferred. They will be resumed when more information is available concerning the suitability of the site. This approach will- conserve resources and allow the DOE to concentrate efforts on scientific investigations." Prior to the Reassessment Report, DOE's most recent conceptual design for the waste package was discussed in the Site Characterization Plan (SCP) for the Yucca

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Mountain site. As info~mation is obtained from site characterizatio~

activities and laboratory studies, the conceptual design will evolve in successive stages into the Advanced Conceptual Design (ACD), the LAD, and the final procurement and construction design. DOE has identified four areas of investigation related to the waste package LAD: (1) waste package environment; (2) waste form and materials testing; (3) desi9n, analysis, fabrication, and prototype testing; and (4) performance assessment. Numerous uncertainties exist in each of these areas. DOE's testing program will attempt to reduce uncertainties in these areas where possible. For example, in-situ testing is expected to d_ecrease s i gnHi cant ly uncertainties regarding the repository host rock mass in which the waste packages will be emplaced. In the area of perfo~mance assessment, however, where results of relatively short-term *testing of complex rock-waste-ground water interactions must be extrapolated over as many as 10,000 years, it may be necessary to rely more heavily on the use of simplifying assumptions and bounding conditions than in other areas of investigation.

As discussed under Finding 1, the Commission continues to have reasonable assurance that waste packages and engineer~d barriers can be developed which wil.l contribute to meeting NRC performance objectives for the repository.

Development of acceptable waste packages and engineered barriers for a repository in the 2010 timeframe will depend on the overall acceptability of the Yucca Mountain site~ If the site is found to be unsuitable, ~aste package and engineered barrier development will have to begin for a different site,

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because under the NWPAA, DOE may not carry out site characterization and waste package development work at sites other than the Yucca Mountain site.

Although much of the work related* to waste form, materials, and performance assessment for the waste package can proceed independently of in-situ testing, the investigations related to waste package environ~ent depend on the schedule for this testing. The schedule for in-situ testing de~ends on when DOE is able to resolve outstanding issues which have impeded shaft sinking and in-situ testing, and on DOE_ s being granted access to the site to begin surface-based 1

testing.

In sum, the Commission is not aware of any scientific*or technical problems so difficult as to preclude development of a waste package and engineered barrier for a repository at Yucca Mountain to be available within the first quarter of the twenty-first century. Moreover, even given the uncertainty regarding the ultimate finding of site acceptability, and the uncertainty concerning the range of site-related parameters Jor which the engineered facility and waste package will have to be designed, the Commission finds reason~ble assurance that ~aste package and engineered barrier development can be completed on a schedule that would permit repository operation within the first quarter of the twenty-first century. If necessary (that is, if Yucca Mountain were found unsuitable by the turn of the century), DOE could initiate site characterization and develop waste pa.ckages and engineered barriers at another site or sites and still corrrnence operation before-the end .of the first quarter of that 1century.

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2.A.3. Institutional Uncertainties.

2.A.3.a. Measures for dealing with Federal-State-local concerns.

In its 1984 Waste Confid~nce Decision, the Commission found that the NWPA should help to minimize the potential that differences between the Federal Government and States and Indian tribes will substantially disrupt or delay the repository program. The Commission noted that the NWPA reduced uncertainties regard,ng the role of affected States and tribes in repository site selection and evaluation. The Commission also said that the decision-making process ~et up by the NWPA provides a detailed, step-by-step approach that builds in regulatory involvement, which should also provide confidence to States and tribes that the prcigram will proceed on a technically sound and acceptabl~

basis. Despite the expected and continuing State opposition to DOE siting activities, the Commissi?n has found no institutional developments since that time that would fundamentally disturb its 1984 conclusions on this point.

NRC regulatory involvement, for example, has indeed been built into the process. DOE has continued its interactions with NRC regarding repository program activities since the Co~mission's 1984 Waste Confidence ~ecision was issued. NRC provided comments to DOE on major program documents such as the Siting Guidelines and the PDS as required by the NWPA, and NRC concurred on those documents. NRC also reviewed and provided comments to DOE on the DEAs and FEAs. In the December 22, 1986 letter to DOE on the FEAs, the NRC staff noted that 11

• • • significant efforts were made by DOE to respond to each of the

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NRC staff major comments on the DEAs, and in fact, many of these comments have been resolved." NRC provided comments to DOE on the. 1987 Draft Mission Plan

-Amendment, and DOE responded to most of these comments in the Final Mission Plan Amendment provided to Congress on June 9, 1987.

Since enactment of the NWPAA in December 1987, DOE-NRC interactions have focused on the Yucca Mountain site. In January 1988, DOE issued the Consulta-tion Draft Site Characterization Plan (CDSCP) for the Yucca Mountain site. The e NRC staff provided comments in the form of draft and final "point papers" on the CDSCP. The NRC comments included several objections related to: (1) the failure to recognize the range of alternative conceptual models of the Yucca Mountain site; (2) the status of the quality assurance (QA) plans for site characterization activities; and (3) concerns related to the exploratory shaft facility. Although the December 1988 SCP shows improvement over the CDSCP, NRC continues to have an objection involving the need for implementing a baselined QA program before beginning site characterization and an objection involving the need for DOE to demonstrate the adequacy of both the ESF design and the design control process. Prior to the November 1989 Reassessment Report, DOE had committed to having a qualified QA program in place before sinking the exploratory shaft at the Yucca Mountain site.

This commitment has not changed. However, in view of the extension in the schedule for shaft sinking from November 1989 to November 1992, qualified QA plans are needed in the near term for me*eting the January 1991 schedule for surface-based testing. In addition to having a qualified QA program in place,

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DOE must also have issued the pertinent study plans for site characterization activities they wish to begin.

'DOE has taken measures to clarify and institutionalize the roles. of other Federal agencies in addition to NRC. In the Draft 1988 Mission Plan Amendment, DOE described interactions with these agencies. DOE has a Memorandum of Understanding (MOU) with the Mine Safety and Health Administration of the Department of Labor for technical support and oversight for s.haft construction and other site characterization activities, and with the Department of Transportation to define the respective responsibilities of the two agencies in the waste disposal program. DOE al so has i nteragency agreements with the Bureau of Mines and the U.S. Geological Survey of the Depart~ent of the Interior.

DOE's efforts to address the concerns of States, local governments, and Indian tribes have met with mixed results. For example, DOE has not succeed~d in finalizing any consultation and cooperation (C&C) agreements as required under Section 117(c) of the NWPA, as amended. These agreements were to help resolve State and Tribal concerns about public hea 1th and safety, env i ronmenta 1, and economic impacts of a repository. Publication of the Siting Guidelines under Section 112(a) of the NWPA resulted in numerous lawsuits challenging the validity of the Gui.delines. Similarly, the FEAs were challenged in the Ninth Circuit by affected States and tribes.

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The NWPAA did not curtail financial assistance to affected States and tribes, except to redefine and redistribute it if DOE and a State or tribe enter into a benefits agreement. Th~ State of Nevada and affected local governments are eligible to receive financial assistance. DOE has attempted to negotiate an agreement with the State of Nevada for monetary benefits under Section 170 of the NWPAA. This Section would provide for payments of $10 million per year before receipt of spent fuel, and $20 million per yea~ after receipt of spent fuel until closure of the repository. These payments would be in addition to certain monetary benefits for which the State is* eligible under the NWPA, as amended. Also under a benefits agreement, a Review Panel would be constituted for the purpose of advising DOE on matters related to the repository, and for assisting in the presentation of State, tribal, and local perspectives to DOE.

The beneficiary to a benefits agreement must waive its right to disapprove the

.recommendation of the site for a repository and its rights to certain impact assistance under Sections 116 and 118 of the NWPA, as amended. To date, the State of Nevada has declined DOE' s offer to negotiate a benefits a*greemeht. In 1989, the State of Nevada requested $23 million for work on Yucca Mountain.

Congress appropriated $5 million and authorized DOE to release an additional

$6 million at the discretion of the Secretary on the basis of good faith efforts of the State to allow technical investigations to begin at the site.

The NWPAA introduced several new organizational entities to the repository program with responsibilities that may contribute to resolving concerns of Federal, State, and local governments involved in the prograi. Under Section 503 of the NWPAA, the Nuclear Waste Technical Review Board (NWTRB) is to

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evaluate the technical and scientjfic validity of DOE activities under the NWPAA, including site characterization and activities related to packaging or transportation of spent fu~l .. The NWPAA also established the Office of Nuclear Waste Negotiator, who is tci seek to negotiate terms under which a State or Indian tribe would be willing to host a repository or MRS facility at a technically qualified site.* Among the duties of the Negotiator is consultation with Federal agencies such as NRC on the suitability of any potential site for

- site characterization.

• Secretary of Energy Jame? Watkins has emphasized the importarice of the Negotiator to the success of the program. A Negotiator could contribute to the timely success of the repository program by providing an alternative site to the Yucca Mountain site that would still have to be technically acceptable, but that would enjoy the advantage of reduced institutional uncertainties resulting from opposition of State or affected Indian trib~s~ The President nominated and the Senate recently confirmed David L'eroy to be the Negotiator.

An additional measure which may facilitate documentation and communication of concerns related to a repos'itory is the Licensing Support System (LSS). The LSS is to provide full text search capability of and easy access to documents related to the licensing of the repository. Although the primary purpose of the LSS is to expedite NRC's review of the construction authorization application for a repository, it will be an effective mechanism by which all LSS participants, including the State and local governments, can acquire early access to documents relevant to a repository licensing decision. DOE is

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. __/

responsible for the design, development, procurement and testing of the LSS.

LSS design and development must be consistent with objectives and requirements of the Conmission's LSS rulemaking and must be carried out in consultation with the LSS Administrator and with the advice of the Licensing Support System Advisory Review Pane.l. NRC (LSS Administrator) is responsible for the management and operation of the LSS *after completion of the DOE design and.

development process.

Procedures for the use of the LSS ire part of revisions to 10 CFR Part 2, NRC'i Rules of Practice for the adjudicatory proceeding on the application to receive and possess waste at a repository. These revisions were the result of a "negotiated rulemaking" process in which affected parties meet to reach consensus on the proposed rule .. The members of the negotiating committee included: DOE; NRC; State of Nevada; coalition of Nevada local governments; coalition of industry groups; and a coalition of national environmental groups.

The coalition of industry groups dissented on the final text of the proposed rule, but the negotiating process enabled NRC to produce a proposed rule reflecting the consensus of mosi of the interested parties on an important repository licensing issue.

NRC is committed to safe disposal of radioactive waste and the protection of public h*ealth and safety and the environment. Any State with a candidate site for a repository should be assured that a repository will not be licensed if it

' . \ . . .

does not meet NRC criteria. NRC has its own program fbr interaction with tht

7

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State of Nevada and affected units of local government, and will continue to provide information to Neva~a and consider State concerns as req~ested.

Given the difficult nature of siting a repository, the Commissionbelieves that the NWPA, as amended, has achieved the proper balance between providing for participation by affected parties and providing for the exercise of Congressional authority to carry out the national program for w~ste disposal.

_The NWPAA provides adequate oppor.tunity for interaction between DOE and other Federal agencies, States, tribes, and local governments such that concerns can be presented to DOE for appropriate action. Both the NRC and the State o~

• tribe can exercise considerable prerogative regarding repository dev~lopment.

The State or tribe may disapprove the recommendation that the site undergo repository development. This disapproval can be overridden only by vote of both houses of Congress within 90 days of continuous session.* If the State disapproval is overridden, DOE may submit an application for authorization to construct the repository, and, if approved, a subsequent application to receive and possess waste for emplacement. NRC will make decisions on t_he license applications according to the requirements of its statutory mission. Despite the complexity of the overall process and the strong views of the participants in it~ the Commission sees no compelling reason to conclude that current institutional arrangements are inadequate tb the task of resolving State, Federal, and local concerns in time to permit a repository to be available within the first quarter of the twenty-first century.

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2.A.3.b. Continuity of the management of the waste program.

At the time the Commission issued its 1984 Waste Confidence Decision, the possibility that DOE functions would be transferred to another Federal .agency was cited as the basis for concerns that the resolution of the radioactive waste disposal problem would likely undergo further delays. The Commission responded that in the years since the Administration* had proposed to dismantle DOE in September 1981,_Congress had not acted on the proposal. The Commission further stated that even if DOE were abolished, the nuclear waste program would simply be transferred to another agency. The Commission did not view the potential transfer in program management as resulting in a significant loss of momentum in the w~ste program. The Commission also concluded_ that the enactment of the NWPA, which gave DOE lead responsibility for repository development, further reduced uncertainties as to the continuity of management of the waste program.

Se~tion 303 of the NWPA did, however, require the Secretary of Energy to

" ... undertake.a study with respect to alternative approaches to managing the construction and operation of all civilian radioactive waste facilities, including the feasibility of estab~ishing a private corporation for such purpose." To carry out tMs requirement, DOE established the Advisory Panel on Alternative Means of Financing and Managing Radioactive Waste Facilities, ~hich came to be known as the 11 AMFM 11 Panel. The Panel's final report, issued in December 1984, concluded that several organizational forms are more suited than DOE for managing the waste program, including an independent Federal agency or

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commission, a public t6r~oration, and a private corporaiion. The report identified a public corporation as the preferred alternative on the basis of criteria developed by the Panel for an acceptable waste management organization. In particular, the repprt indicated that a public corporation*

would be stable, highly mission-oriented, able to maintain credibility with.

stakeholders, and more responsive to regulatory contra l than a Federal executive agency.

Commenting on the AMFM Panel's*report in April 1985, DOE recorranended retaining the present management_ structure of the waste progra~ at least through the siting and licensing phase of the program. Congress did not take action to implement the Panel's recommendations, and DOE'~ management of the waste program has remained uninterrupted.

By enacting the NWPAA, Congress effectively reaffirmed DOE's continued e management of the waste program. Congress did not revise DOE's role as the lead agency responsible for development of a repository and an MRS. Congress did establish seve~al new entities for the purpose of advising DOE on matters related to the waste program, such as the NWTRB and the Review Panel, to be established if DOE and a State or tribe enter into a benefits agreement under Section 170 of the NWPAA. Congress provided further indication of its intent that DOE maintain management control of the waste program for the foreseeable future in requiring, under Section 161, that the' Secretary of DOE " ..* report to the President and to Congress on or after Ja~nuary 1, 2007, but not later than January 1, 2010, on the need for a second repository. 11

- 112 -

This is not to say, however, that there have b~en no management problems in the DOE program. Since the enactment of the NWPA tn 1983, only one of the five Directors of DOE 1 S Office of Civilian Radioactive Waste ~anagement (OCRWM) has held the position on a permanent basis. Inadequate progress toward an operating repository ha,s concerned severa.1 Congres.s i ona 1 observers, including Senator*J. Bennett Johnston, Chairman of the Senate Energy and Natural Resources Committee. In February 1989 confirmation hearings for then-Secretary-of-Energy-designate James Watkins, Senator Johnston strongly triticized mounting cost projections and lack of progress in the program, and called for new and stronger management.

In the November 1989 Reassessment Report, DOE discussed several new initiatives

• for improving its management of the repository program .. The initiatives include direct-l1nell reporting from the Yucca Mountain Project Office to the 11 Office of Civilian Radioactive Waste Management (OCRWM), and an independent contractor review of OCRWM management structures, systems and procedures to identify program redundancies, gaps, and strengths. The OCRWM is also implementing improvements in the overall Program Management System, the QA program,.and establishment of program cost and schedule baselines.

Whether the management structure of the repository development program should in fact be changed is a decision best left to others. The Commission believes that a finding on the likely availability of a repository should take management problems into account, but finds no basis to diminish the degree of assurance in its 1984 concl~sion on this issue. Events since the submission of

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the AMFM Panel report dci not indicat~ that there will be a fundamental chinge in the continuity of the management structure of the program any time soon. In addition, it cannot be assumed that the program would encounter significantly less difficulty with a new management structure than it would continuing under the present one. Under either scenario, however, the Commission believes it would be more prudent to expect repository operations after the 2010 timeframe

- than before it. Neither the problems of a new management structure nor those of the existing one are likely to prevent the achievement of repository operations within the first quarter of the next century, however.

2.A.3.c. Continued funding of the nuclear waste management program.

Section 302 of th~ NWPA authorized DOE to enter into contracts with generators of electricity from nuclear reactors for payment of 1.0 mill (0.1 cent) per kilowatt-hour of net electricity generated in exchange for a Federal Government commitment to take title to the spent fuel from those reactors. In. the 1984 Waste Confidence Decision, the Commission noted that all such contracts with utilities had been executed. After the 1984 Dedsion,,then-President Reagan decided that defense high-l~vel wastes are to be collocated with civilian wastes from commercial nuclear power reactors. DOE s Office of Defense 1

Programs is to pay the full cost of disposal of defense waste in the repository.

DOE is required under Section 302(a)(4) of the NWPA, as amended, 11

• • • annually

[to] review the amount of the fees ... to evaluate whether collection of the fees

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will provide sufficient revenues*to offset the costs .... " In the June 1987 Nuclear Waste Fund Fee Adequacy Report, DOE recommended that the 1.0 mi 11 per

• kilowatt-hour fee remain unchanged. This assessment was based on the assumption that an MRS facility would open in 1998-, the first repository would open 1n 2003, and the second repository in 2023. These assumptions do not reflect changes in the waste program brought about by the NWPAA enacted in December 1987. Two such changes with significant potential impacts were the suspension of site-specific activities related to the second repository until at least 2007, and the linkage between MRS construction and operation and the \

granting of a repository construction authorization, which will probably occur no earlier than 1998.

DOE has not issued a fee adequacy report since the June 1987 report. When the updated report is released~ it is expected to reflect overall program cost savings to the utilities resulting from: (1) limiting site characterization activities to a single site at Yucca Mountain, NV; and (2) the DOE Office of Defense Programs' sharing other program costs with generators of electricity 11

• • • on the basis of numbers of w~ste canisters handled, the portion of the*

repository used for civilian or defense wastes, and the use of various facilities at the repository, 11 in addition to paying for activities solely for disposing of defense wastes. An additional factor which may eventually also contribute to the overall adequacy of Nuclear Waste Fund fees is the likelihood that a significant number of utilitie*s will request renewals of reactor operating lifetimes beyond their current OL expiration dates. OL renewal would provide additional time during which Nuclear Waste Fund fees could be adjusted,

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if necessary, to cover any future increase in per-unit costs of waste management and disp6sal. It is expected that the new report may reflect a recent Court decision which found that fees paid into the Nuclear Waste Fund be adjusted to reflect transmisston and distribution losses.

The Commission recognizes the potential for program c6st increases over estimates in the 1987 Nuclear Waste Fund Fee Adequacy Report. If there is a significant delay in repository construction, for example, it is reasonable to assume that construction costs will *escalate. There may also be additional costs associated with at-reactor dry cask storage of spent fuel,* if DOE does

• not have a facility available to begin accepting spent fuel by the 1998 date specified in the NWPA. These costs would be further increased if one or more licensee was to become insolvent and DOE was required to assume responsibility for storage at affected reactors before 1998.

In. the event of insolvency, DOE would still have sufficient funds to take over responsibility for managing spent fuel until a repository is available.

Because spent fuel disposal costs are directly related to the amount of electricify generated, with contributions to the NWF based on a kilowatt-hour surcharge that must be paid in short-term installments, utilities can be presumed to be mostlr up-to-date with their contributions. It is highly unlikely that a utility would jeopardize its contract for spent fuel disposal with DOE by defaulting on a periodic payment to save a few million dollars.

Even if a utility were to default, it would not be much in arrears for its spent fuel before it would trigger close DOE scrutiny and mitigative action.

-- 116 -

Larger amounts in default could possibly occur with those relatively few utilities that have not paid their full share of pre-198~ collections. This issue arises because several utilities elected to defer payment for spent fuel generated prior to April 1983 into the fund and, instead, themselves hold the money that was collected from ratepayers for the one~time fee. DOE s Inspector 1

General belieies that some of those utilities may not be able to make their payments when due. The NRC understands from OCRWM staff that, if a nuclear utility licensee were to default on its one-time contribution to the NWF, DOE is not precluded from accepting for disposal all spent fuel from that utility.

Thus, the NRC does not view this issue as affecting its confidence that the spent fuel will be disposed of. Rather, the issue is one of equity--that is, will a utility and its customers and investors .or U.S. taxpayers and/or other utilities ultimately pay for disposal of spent fuel generated prior to April 1983. The Commission does not believe that a licensee's potential default has a direct bearing on the Commission's Waste Confidence Decision.

The full impact of the program redirection resulting from the NWPAA and the outlook for the timing of repository availability will continue to be assessed annually. If it does appear that costs wil.l exceed available funds, there is provision in the NWPA for DOE to request that Congress adjust the fee to ensure f_ull-cost recovery. Thus, the Corranission finds no reason for changing its basic conclusion that the long-te~m funding provisions of the Act should provide adequate financial support for the DOE program.

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2.A.3.d. DOE's schedule for repository development.

At the time that the 1984 Waste Confidence Decision was issued, the Nuclear.

Waste Policy Act of 1982, enacted in Ja*nuary 1983, had been in effect for less than 20 months. The NWPA had established numerous deadlines for various repository program milestones. Under Section 112(b)(l)(B), the NWPA set the schedule for recommendation of sites for characterization no later than January 1, 1985. Section 114(a)(2) specified that no later than March 31, 1987, with provision for a 12-month extension of this deadline, the President was to recommend to Congress one of the three characterized sites qualified for an application for repository construction authorization. Under Section 114(d), NRC was to issue its decision approving or disapproving the issuance of

.a construction authorization not later than January 1, 1989, or the expiration of three years after the date of submission of the application, whichever occufs later. Section 302(a){5)(B) required that contracts between DOE and utilities for payments to the Waste Fund provide that DOE will begin .disposing of spent fuel or high-level waste by January 31, 1998.

In little more than a year after enactment, the -schedule established by the NWPA began proving to be optimistic. In the reference schedule for the repository presented in the April 1984 Draft Mission Plan, for example, DOE showed a slip from January .1989 to August 1993 for the decision on .construction authorization.

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In the 1984 Waste Confidence Decision, the Commission recognized the possibility of delay in repository availability beyond 1998, and did not define its task as finding confidence that a repository would be,available by the 1998 milestone in the NWPA. The Commission focused instead on the question of whether a repository would be available by the years 2007-2009, the date cited in the court remand as the expiration of the Ols for the Vermont Yankee and Prairie Island reactors. The NRC believed that ihe NWPA increased the ~hances for repository availability within the first few years of *the twenty-first century, by specifying the means for resolving the institutional and technical issues most likely to delay repository completion, by establishing the process for compliance with NEPA, and by setting requirements for Federal agencies to cooperate with DOE in meeting program milestones. Finding that no fundamental technical breakthroughs were necessary for the repository program, the Commission predicted that " ... selection and cnaracterization of suitable sites and construction of repositories will be accomplished within the ge~eral time frame established by the Act [1998] or within a few years thereafter."

In January 1987, DOE issued a Draft Mission Plan Amendment to apprise Congress of sigriificant_developments and proposed changes in the repository program. In.

the Draft Amendment, DOE announced *a five-year delay in its schedule for repository availability from the first quarter of 1998 to the first quarter of 2003. DOE's reasons for the delay included the need for more time for consultation and interaction with States and Tribes, the requirement in DOE's 1987 budget that funds not be used for drilling exploratory shafts in 1987, _and the need for more inform~tion than previously planned for site selection and

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the license application. The 1987 Draf~ Mission Plan Amendment set the second quarter of 1988 as the new date for exploratory shaft construction.at the Yucca

• Mountain site. When the final 1987 Mission Plan Amendment was submitted to.

Congress in .June 1987, th~ schedule for shaft sinking at the Yucca Mountain site had slipped six months to the f6urth quarter of 1988. Congress did not take action to approve the June 1987 Mission Plan Amendment as DOE had requested.

On December 22, 1987, the NWPAA was enacted. The NWPAA had its major impact on the repository program in suspending site characterization activities at the Hanford and Deaf Smith County sites and authorizing DOE to characterize the Yucca Mountain site for development of the first repository.

DOE subsequently iss~ed the Draft 1988 Mi~sion Plan Amendment in Jun~ 1988, to apprise Congress of its plans for implementing the provisions of the NWPAA. In the Draft 1988 Mission Plan Amendment, DOE's schedule for shaft sinking at Yucca Mountain had slipped another six months to the second quarter of 1989.

Since the NRC published the Proposed Waste C6nfidence Review (54 FR 39767) for comment, the schedule for shaft sinking has been changed from November 1989 to November 1992. Issues requiring DOE attention before site characterization can begin have been identified, and it is possible that additional* issues affecting DOE's readiness will come to li~ht. However, DOE has made progress in completing QA plans since September 1989, and it is reasonable to expect that study plans and technical procedures needed for surface-based testing wi 11 be ready in time for testing to begin by January 1991.

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Heretofore, the repository schedule has always been agressive and highly success-oriented. In comments on the Draft 1988 Mission Plan Amendment, the Commission noted that the schedule has not allowed adequately for conttngencies, and that, given the compression in the schedule for near-term program milestones,. DOE had not shown how it would be able to meet the 2003 milestone for repository operation. The_ revised schedule announced in the November 1989 Reassessment Report includes a new reference schedule for the restructured repository, MRS, and transportation programs. Under the restructured program, the schedule for submittal of a construction authorization application to NRC has been extended from 1995 to 2001, and the

, schedule for repository operation_ at Yucca Mountain, if that site is found to be suitable, is 2010. DOE believes that this reference schedule is the first repository program schedule since passage of the N\~PA that is based on a "realistic assessment of activity duration and past experience." The new schedule allows more time for scientific investig~tions than earlier schedules.

NRC believes that the restructured program has been responsive to NRC concerns that the quality and completeness _of site investigations were being compromised in order to satisfy unrealistic schedule requirements.

Another potential source of delay in repository availability may arise from NRC

• regulations. Given the revised schedule, however, the NRC does not believe thi_s is likely. The Commission believes that current NRC rules are fully adequate to permit DOE to proceed to *develop and submit a repository license application, but further clarification of_ these *rules is desirable to reduce the time needed to conduct the licensing proceeding itself. In order to meet

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the three-year schedule provided in the NWPA for a Commission decision on repository construction authorization, the NRC staff has undertaken to refine its regulatory framework on a schedule ,that would permit DOE to prepare and submit an application for repository construction authorization under its current schedule. The Commission fully int~nds to avoid delaying DOE's program, while working to reduce the uncertainties in NRC regulatory requirements that could become contentions in the licensing proceeding. Even if there are any delays resulting from a need for DOE to accommodate more specific regulatory requirements in its site characterization or waste package development programs, the Commission is confident that the time savings in* the licensing proceeding will more than compensate for them.

In view of the delays in exploratory shaft excavation since the. 2003 date for repository availability was set, the Commission believed it was optimistic to expect that Phase 1 of repository operations would be able to begin by 2003.

e As' DOE's schedule for repository availability has slipped a year and a half

• . since the date was changed from 1998 to.2003, the earliest date for repository availability would probably be closer to 2005. Given additional delays in shaft sinking and DOE'S revised program schedule, NRC believes that 2010 is the earliest date for repository availability at Yucca Mountain. Yet, the Commission* recognizes that DOE is _committed to improving the schedule where possible without sacrificing quality and completeness of scientific investigations.

- 122 -

)

An institutional issue that may further affect DOE s schedule is the status of 1

EPA standards for disposal 1 of spent fuel and high-level waste. These standards are required under Section 121(a) of .the NWPA. Under 10 CFR Section 60.112,.

NRC s overall postclosure system performance objective, th~ geologic setting 1

shall be selected and the engineered barrier system, which includes the waste package, must be designed to assure that releases of radioactive materials to the accessible environment, following permanent closur~, conform to EPA s 1 standards. 40 CFR Part 191, the EPA standards, first became effective in November 1985 .. In July 1987, the U.S. Court of Appeals fo_r the First.Circuit vacated and remanded to EPA-for further proceedings Subpart B of the high-level r

radioactive waste disposal standards. As noted under the aforementioned r

1.A.1., the standards have not been reissued.

A significant modification in the reissued EPA standard may affect tbe schedule for completing the design of the wast~ package and engineered barrier to .the extent that design testing is planned to de~onstrate compliance with the staridards. DOE s current site characterization plans for demonstrating 1

compliance with 40 CFR Part 191 are based on the standards as promulgated in 1985. DOE is proceeding to carry out its testing program developed for the original EPA standards. DOE has stated that if the EPA standards are changed significantly when they are reissued, DOE will reevaluate the adequacy of its testing program.

The Commission believes that DOE s approach is reasonable.

1 Much of the information required to demonstrate compliance with the EPA standards is

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expected to remain. the same regardless .tif the riumerical level at which each standard is set. Considering the importance of developing the repository for waste disposal as earlj as ~afaly practicable, it would be inappropriat~ for DOE to suspend work on development of engineered barriers pending reissuance of the standards, unless EPA had given clear indications*of major changes in them*~

Another possibility is that, regardless of any changes in the repromulgated* EPA standards, they will be litigated in Federal court. Even if this proves to be the case, however, the Commission believes that any such litigation will still permit EPA to promulgate final standards well within the time needed to enable DOE to begin repository operations at any site within the first quarter of the twenty-first century.

Given the current DOE program schedule, and assuming that the QA program can be qualified and surface-based testing begun within the next year, the Commission finds that although it is not impossible that a repository at Yucca Mountain will be available by 2007-2009, it is more likely that the earliest date for a repository there is 2010. If DOE determines that the Yucca Mountain site is

• unsuitable, and if DOE makes this determination by the year 2000, the NRC believes that a repository at another site could be available within the first

• quarter of the next century. The Commission will reevaluate these dates during.

the next scheduled Waste Confidence Review in 1999.

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2.B. Relevant Issues That Have Arisen since the Commissiori s Original Decision.

1 2.B.l. NRC stated in 9-14-87 correspondence to Sen. Breaux on pending nuclear waste legislation that under a program of single site characterization, 11 * *

• there may be a greater potential for delay of ultimate operation of a repository than there is under the current regime where three sites will undergo at-depth characterization.

before a s'ite is selected. 11 To what extent does the NWPAA raise

• uncertainty about the identification of a technically acceptable site and potential delay in repository availability by limiting site characterization to a single c~ndidate site (Yucca Mt.) and by raising the possibility that a negotiated agreeme_nt might influence repository site selection? Does this uncertainty affect confidence in the availability of a repository by 2007-2009?

In providing comments to Congress on proposed amendments to the NWPA, NRC took the position that simultaneous site characterization of three sites, as required by the NWPA, was not necessary to protect public health and safety.

NRC further stated that the adequacy of a site for construction authorization would ultimately be determined in a licensing proceeding, and that NRC would I

only license a site that satisfied NRC licensi-ng requirements. As described next, the Commission believes that the NWPAA contains numerous provisions to ensure that a technically acceptable site will be identified.

The NWPAA does not reduce the scope of site characterization activities that DOE is authorized to undertake. The Amendments Act establishes- a Nuclear Waste Technical Review Board composed of individuals recommended by the National Academy of Sciences and appointed by the President to evaluate the scientific**

validity of DOE activities; including site characterization activi ties, and* to 1

report its findings at least semiannually to Congress and DOE. The Amendments Act-also provides funding for technical assistance to States, tribes, and

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affected units of local government. Finally, Section 160(1) of the NWPAA provides that 11 Nothing in this Act shall be construed to amend or otherwise detract from the licensing requirements of the NRG established in Title II of the Energy Reorganization Act of 1974 (42 U.S.C. 5841 et seq.). 11 In providing for these reviews and in reaffirming NRC 1 s licensing authority, the NWPAA ensures that a candidate site for a repository must satisfy all NRG

- requirements and criteria for disposal of high-level radioactive wastes in licensed geologic repositories.

Section 402 of the NWPAA establishes the Office of the Nuclear Waste Negotiator. The duty of the Negotiator is to attempt to find a State or tribe willing to host a repository or MRS at a technically qualified site. The Negotiator may solicit comments from NRC, or any other Federal agency, on the suitability of any potential site for site characterization. Section 403(d)(4) strengthens the Commission's confidence that a technically acceptable site will be identified by providing that DOE may construct a repository at a negotiated site only if authorized by NRG. Given these safeguards on selection of a technically acceptable site, the Commission does not consider that the possibility of a negotiated agreement reduces the likelihood of finding a technically qualified site.

The Commission raised the concern as early as April 1987 that under a program of single-site characterization, there could be considerable de1ay while characterization was completed at another site or slate of sites if the initially chosen site was found inadequate. By terminating site

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characterization activities at alternative sites to the Yucca Mountain site,.

the NWPAA has had the effect of increasing the potential for delay in repository availability if the Yucca Mountain site proves unsuitable~ The provision in the NWPAA for a Negotiator could reduce the uncertainty and

\

associated delay in-restarting the repository program by offering an alternate to the Yucca Mountain site; but at the time of_ this writing, a Negotiator has not been appointed.

It should be noted here that the repository program redirection under the NWPAA does not, per se, have a significant impact.on the Commission's assurance of repository availability by 2007-2009, the relevant dates in the original Waste Confidence Proceeding, or on.availability by 2010, DOE's current date. The Commission's reservatioris about affirming this timeframe derive from other considerations, including delays in sinking shafts and the potential for other delays in meeting program milestones, that would have arisen without the NWPAA.

The_Amendments Act does, h_owever, effectively make it necessary that Yucca Mountain be found suitable if the 2007-2009 or 2010 timeframe is to be met; this target period would almost certainly be unachievable if DOE had to begin screening to characterize and license another site. Thus, confidence in repository availability in this period would imply confidence in the suitability of Yucca Mountain. The Commission does not want its findings here to constrain in any way its regulatory discretion in a licensing proceeding.

Therefore, the Corrmission declines to reaffirm the 2007-2009 timeframe in the original decision or to affirm the current 2010 date for repository operation.

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2.B.2. In the Draft 1988 Mission Plan Amendment, DOE stated that 11 * *

• the data indicate that the Yucca Mountain site has the potential capacity to accept at least 70,000 MTHM [metric tons heavy metal equivalent]

of waste, but only after site characterization will it be possible to determine the total quantity of waste that could be accommodated a~

this site. 11

a. Do the issues of limited spent fuel capacity at Yucca Mountain,*

indefinite suspension of the second repository program, and the likelihood that no more than one repository will be available by 2007-2009 undermine the NRC's 1984 assurance that "sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing coiilmercial high level radioactive waste. and spent fuel originating in such reactor and generated up to that time?"

b. Is there sufficient uncertainty in total spent fuel projections (e.g., from extension-of-life license amendments, renewal of operating licenses for an additional 20 to 30 years, or a new generation of reactor designs) that this Waste Confidence review should consider the institutional uncert~inties arising from having to restart a second repository program?

2.B.2.a.

e Although it will not be possible to determine whether Yucca Mountain can accommodate 70,000 MTHM or more of spent fuel until. after site characterization, the Commission does not believe that the question of repository capacity at the Yucca Mountain site should be a major factor in the analysis of Finding 2. This is because it cannot be assumed that Yucca Mountain will ultimately undergo development*as a repository.* The generic issue of repository capacity does add to the potential need for more than one repository, however.

As*noted earlier, the NWPA established deadlines for major milestones in the development of the first and the second repository programs. The Act also

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required NRC to issue a final decision on the construction authorization application by January 1, 1989 for the first repository, and January 1, 1992 for the second (or within three years of the date of submission of the applications, whichever occurred later). The July 1984 Draft DOE Mission Plan set January 1998 and October 2004 as the dates for commencement of waste emplacement in the first and second repositories, assuming that C~ngressional authorization was obtained to construct the second repository .

. Thus, at the time the 1984 Waste Confidence Decision was issued, DOE was authorized and directed to carry otit two repository programs under a schedule to make both facilities operational by 2007-2009. DOE and NRC were also working under the constraint, still in force under the NWPA as amended, that no more than 70,000 MTHM may be emplaced in the first repository before ~he second is in operation. Because DOE estimated at the* time that commercial U.S.

nuclear power plants with operating licenses or construction permits would discharge a total 160,000 MTHM of spent fuel, ,t appeared that at least two reposftbries would be needed.

In the 1984 Waste Confidence Decision, reactors were assumed to have a 40-year operating lifetime, and because the earliest licenses were issued in 1959 and the early 1960 s, the oldest plants* licenses were due to expire as early as 1

1999 and 2000, as discussed in more detail below. Although it was expected that at least one repository would be available by this.time, there was also a limit as to how quickly spent fue.l co.uld be accepted by the repository. DOE

• had estimated that waste acceptance rates of 3400 MTHM per year could be

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achieved after the completion of Phase 2 of the first repository. This rate could essentially double if two repositories were in operation. At 6000 MTHM/year, it was estimated that all the anticipated spent fuel could be emplaced in the two repositories by about the year 2026. This was the basis for the Commission's position that sufficient repository capacity would be available within 30 years beyond expiration of any reactor OL to dispose of existing commercial high level waste and spent fuel originating in such reactor and generated up to that time.

In May 1986, however, DOE announced an indefinite postponement of the second repository program. The reasons for the postponement included decreasing forecasts of spent fuel discharges, as well as estimates that a second repository would not be needed as soon as originally supposed. With enactment of the NWPAA in December 1987, DOE was required to terminate all site-specific activities with respect to a second repository unless such activities were specifically authorized and funded by Congress. The NWPAA required DOE to report to Congress on the need for a second repository on or after January 1, 2007, but not later than January 1, 2010.

Current DOE spent fuel projections, based on the assumption of no new reactor orders, call for 87,000 MTHM to have been generated by the year 2036, including approximately 9000 MTHM of defense high-level waste. With the likelihood that there will be reactor lifetime extensions and renewals, however, the no-new-orders case probably underestimates total spent fuel discharges. Also, the NWPAA did not change the requirement that no more than 70,000 MTHM could be

,. 130 -

emplaced in the first repository before operqtion of the second. It therefore appears likely that two repositories will be needed to dispose of all the spent fue.l and high-level waste from the current generation of rea~tors, unless Congress provides statutory relief from the 70,000 MTHM limit, and the first site has adequate capacity to hold all of the spent fuel and high-level w~ste generated. The Commission believes that if the need for an additional repository is established, Congress will provide the needed institutional support and funding, as it has for the first repository.

For all but a few licensed nuclear power reactors, 0Ls will not expire until some time in the first three decades of the twenty-first century.

• Several utilities are currently planning to have their OLs r~newed for ten to 30 years beyond the original license expiration. At these reactors, currently available spent fuel storage alternatives effectively remove storage capacity as a potential restriction for safe operations. For these reasons, a repository is not needed by 2007-2009 to provide disposal capacity within 30 years beyond expiration* of most OLs. If work is begun on the second repository program in 2010, the repository could be available by 2035, according to D0E's estimate of 25 years for the time it will take to carry out a program for the second repository. Two repositories available in approximately 2025 and 2035, each w.ith acceptance rates of 3400 MTHM/year within several years. after co1T1Tiencement of operations, would provide assurance that sufficient repository capacity will be available within 30 years of 0L expiration for reactors to dispose of the spent fuel generated at their sites up to that time.

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There are several reactors, however; whose 0Ls have already expired or are due to expire within the next few years, and which are now licensed or will be licensed only to possess their spent fuel. If a repository is not availabl~

until about 2025, these reactors may be exceptions to the second part of the Commission s 1984 Finding 2, which was that sufficient repository capacity will 1

be available within 30 years beyond the expiration of any reactor 0L to dispose of the commercial high-level waste and spent fuel originating in such reactor and generated up to that time.

The basis for this second part of Finding 2 has two components: 1) a technical or hardware component; and 2) an institutional component. The technical component relates to the reliability of storage hardware and engineered structures to provide for the safe storage of spent fuel. An example would be the ability of spent fuel assemblies to withstand corrosion within spent fuel storage pools, or the ability of concrete structures to maintain their integrity over long periods. In the 1984 Decision, the Commission found confidence that available technology could in effect provide for safe storage of spent fuel for at least 70 years.

The Commission's use of the expression 11 30 years beyond expiration of any reactor operating license" in the 1984 Finding was based on the understanding that the license expiration date referred to the scheduled expiration'date at the time the license was issued. It was also based on the understanding that, in order to refuel the reactor, some spent fuel would be discharged from the

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reactor within twelve to eighteen months after the start of full power operation.

Thus, the Commission understood that, depending on the date of the first reactor outage for refueling, some spent fuel would be stored at the reactor site for most of the 40-y"ear term of the typical OL. In finding that spent fuel could be safely stored at any reactor site for at least 30 years after expiration of the OL for that reactor, the Commission indicated its expectation that the total duration of spent fuel storage at any reactor would be about 70 years.

Taking the earliest licensed power reactor, the Dresden 1 facility licensed in 1959, and adding the full 40-year operating license duration for a scheduled license expiration in th*e year 1999, the Commission's finding would therefore entail removal of all spent fuel from that reactor to a repository within the succeeding 30 years, or by 2029. Even if a repository were not available until the end of the first quarter of _the twenty-first century, DOE would have at least four years to ship the reactor's 683 spent fuel assemblies, totalling 70 metric tons initial heavy metal (MTIHM), from Dresden 1 without exceeding the Commission's 30-year estimate of the maximum time it would take to dispose of*

the spent fuel generated in that reactor up to the time its OL expired. (MTIHM is a measure of the mass of the uranium in the fuel (or uranium and plutonium if it is a mixed oxide fuel) at the t~me the fuel is placed in the reactor for irradiation.)

[

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Considering the experience from the 1984 and 1985 campaigns to return spent*

fuel from the defunct West Valley reprocessing facility to the reactors of*

origin, 70 metric tons of BWR.spent fuel can easily be shipped within four years. The first campaign,, involving truck shipments of 20 metric tons from West Valley, NY, to Dresden 1 in Morris, IL,.took eleven months. The second, involving truck shipments of 43 tons'from West Valley to the Oyster Creek reactor in Toms River, NJ, took six months. (See Case Histories of.West Valley Spent Fuel Shipments, Final Report, NUREG/CR-4847 WPR-86(6811)-1,

p. 2-2.) ~ This est~mate assumes, moreover, that no new transportation casks, designed to ship larger quantities of older, cooler spent fuel, for examp~e, would be available by 2025.

The institutional part of the question concerning the availability of sufficient repository capacity required the. Commission to make a finding as to whether spent fuel in at-reactor storage would be safely maintained after the expiration of the facility DL. This question related to the financial and managerial capability for continued safe storage and monitoring of spent fuel, rather than to the capability of the hardware involved. The Commission determined, in Finding 3 of its 1984 Decision, that spent fuel will be.managed in a safe manner until sufficient repository capacity is available to assure safe disposal, which was expected under Finding 2 to be about 30 years after the expiration of any reactor DL. (See discussion of Finding 3 below for additional discussion of the institutional aspects of spent fuel storage pending the availability of sufficient disposal capacity.)

. - 134 -

The availability of a repository within the first quarter of the twenty-first century holds no signifi.cantadverse implications for the Commission s 1 institutional concern that there be an orgaritzation with adeq~ate will and wherewithal to provide continued long-term storage after reactor *operation.

This could be a concer.n if a significant number of reactors with significant quantities of spent fuel onsite were to discontinue operations indefinitely between now and 1995, and the utility-owners of these reactors did not appear to have the resources to manage them safely for up to 30 years pending the assumed availability of a repository in 2025.**

~o such development is likely. No licenses for currently operating commercial nuclear reactors are scheduled to expire until the year 2000, and most such licenses will expire during the first two decades after 2006. (See Nuclear Regulatory Commission 1989 Information Digest, NUREG-1350, Vol. 1, p. 33.)

• The" availability of the first repository by 2025, and of a second repository within one or two decades thereafter,. would provide adequate disposal capacity* for*

timely removal of the spent fuel generated at these reactors.

There are several licensees, however, whose authority to operate their commercial reactors has already been terminated.

• These are Indian. Point 1, Dresden 1, Humboldt Bay, and Lacrosse. They are also the onl~ licensed power reactors that are retired with spent fuel being stored onsite. Assuming.

conservatively that a repositori does not become operational until 202?, it appears likely that spent fuel will remai~ at these sites for more than 30 years beyond the time their reactors were indefinitely shut down, at which

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point.their operating licenses could be considered to have effectively expired, although they will -continue to hold a possession li~ense for the storage of the spent foe l.

In considering the means and motivation of the owner of an indefinitely retired reactor to provide safe long-term storage, the Corrimission believes it is useful to distinguish between the owner with only one reactor, and _the owner of a reactor at a multi-unit site or an owner with operating reactors at other sites. In the case of a retired reactor at a multi-unit site, the owner would have a clear need to maintain the safety of storage at the retired reactor***

sufficiently to permit tontinued generation at the site. If the owner of the retired reactor also owned other reactors at other sites, the spent fuel at the

-retired reactor could be transferred, if necessary, to the storage facilities of other units still under active management. Of the four reactors just cited, Indian Point 1 and Dresden 1 fit this description, and the sibling reactors at their sites are operating *under licenses that do not expire until well beyond the year 2000 -- that is, well within the post-OL period during which the Commission has found that *spent fuel could be safely stored pending the availability of a repository.

For the Lacrosse and Humboldt Bay reactors, the Commission is confident that,

- even if a repository is not available within 30 years following their retirement, the overall safety and environmental acceptability of extended spent fuel storage will also be maintained for these exceptional cases.

Because there will still be an NRC possession license for the spent fuel at

- 13'6 -

these facilities, the- Commission will retain .ample regulatory authority to require any measures, such as removal_of the spent fuel remaining in storage pools to passive dry storage casks, that might become necessary until the time that DOE assumes title to the spent fuel under contracts pursuant to the NWPA.

It should also be borne in mind that Humboldt Bay and Lacrosse are both s111an early reactors, and their combined spent fuel inventory totals 67 metric tons of initial heavy metal. - (See Spent Fuel Storage Requirements (DOE/RL 88-34)

October 1988, Table A.3b., pp~ A.15-A.17.) If for any rea~on not now foreseen, this spent fuel can no longer be managed by the owners of these reactors, and DOE must assume respohs lb il ity for its management earlier than currently planned, this quantity of spent fuel is well within the capability of DOE to manage onsite or offsite with available techriology.

Nor does the Commission see a significant safety or environmental problem with premature retirements of additional reactors. In the Comm.ission 1 s original Waste Confidence Decision, it found reasonable assurance that spent fuel would

\

have to spend no more than 30 years in post-operational storage pending the

_)

availability of a repository. For a repository conservatively assumed to be available in 2025, this expected 30-year maximum storage duration remains valid for most reactors, and would be true for all reactors that were prematurely retired after 1995. Based on the past history of premature shutdowns, the Commission has reason to believe that their likely incidence during ~he next six years will be small as a proportion of total reactor-years of operation.

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Historically, 14 of the 125 power reactors that have operated in the U.S. over the past 30 years have been retired before the expiration of their operating licenses. These early retirements included many low-power developmental reactors, ~hich may make the *rati~ cif 14 to 125 disproportiohately high as a basis for projecting futu~e *premature shutdowns.

The Commission is aware of currently operating reactors that may be retired before the expiration of their Ols, including:- the recently-licensed Shoreham reactor, which has generated very little spent fuel; the Fort St. Vrain high-temperature gas-coole~ reactor, which its owner plans to decommission; and the Rancho Seco reactor, which has operated for.the past 12 years and may or may not be retired. Assuming that these and perhaps a few more reactors do retire"in *the next several years, their total spent fuel storage requirements would not impose an unacceptable safety or environmental problem, even in the unlikely event that all these reactors' owners were rendered financially or

'otherwise unable to provide adequate care, and DOE were required to assume custody earlier than currently envisioned under the NWPA.

Licensed non-power research reactors provide an even more manageable case. DOE owns the fuel for almost all of these reactors, many of which have been designed with lifetime cores that do not require periodic refueling. For those reactors that do discharge spent fuel, DOE accepts it* for storage or reprocessing, and not mar~ than an estimated 50 kilograms of such spent fuel are generated annually.

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Thus, *given these worst-case projections,, which are not expectations but bounding estimates, the Commission finds that a delay in repository availability to 2025 will not result in significant safety or environmental impacts due to extended post-operational spent fuel storage. To put it another

way, the Commission.is confident that, even if a repository were not available I) within 30 years after the effective expiration of the 0ls for both currently retired reactors and potential future reactor retirements through 1995, the overall safety and environmental impacts of extended spent fuel storage would be insignificant.

2.B.2.b.

Although it is clear that there is uncertainty in projections of total future spent fuel discharges, it is not clear that the institutional uncertainties arising from having to restart a second repository prog-ram should be considered in detail in the current Waste Confidence ~ecision review.

License renewals would have the effect of increasing requirements for spent fuel storage. The Commission understands that some utilities are currently planning to seek renewals for 30 years. Assuming for the sake of establishing a conservative upper bound that the Commission does grant 30-year license renewals, the total operating life of some reactors would be 70 years, so that the spent fuel initially generated i~ them would have to be stored for about 100 years if a repository were not available until .30 years after the expiration of their last OLs.

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Even under the conservative bounding assumption of 30-year license renewals for all reactors, however, if a repository were available within the first quarter of the twenty-first century, the oldest spent fuel could be shipped off the.

sites of all currently operating reactors well before the spent fuel initially generated in them reached the age of 100 yea rs. Thus, a second repository, or additional capacity at the first, would be needed only to accollillodate the additional quantity of spent fuel generated during the later ye.ars of these reactors' operating lives. The availability of a second repository would permit spent fuel to be shipped offsite well within 30 years after expiration of these reactors' OLs. The same would be true of the spent fuel discharged from any new generation of reactor designs.

In sum, although some uncertainty in total spent fuel projections does arise from such developments as utilities' planning renewal of Ols for an additional 20 to 30 years, the Commission believes that this Waste Confidence review need not at this time consider the institutional uncertainties arising from having to restart a second repository program. Even if work on the second repository program is not begun until 2010 as contemplated under current law, there is sufficient assurance that a second repository will be available in a timeframe that would not constrain the removal of spent fuel from any reactor within 30 years of its licensed life for operation.

2. B. 3. Are early slippages in the DOE repository program milestones significant enough to affect the Commission's confidence that a repository will be available when needed for health and safety reasons?

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The 2007-2009 timeframe imposed on the Commission by the May 23, 1979 remand by the Court of Appeals was based on the scheduled expiration of the 0ls for the Vermont Yankee and Prairie Island nuclear reactors. The specific issues remanded to the Commiss.ion were:. 1) whether there is reasonable assurance that an offsite storage solution will be available by the years 2007-2009 (the expiration of the plants' operating licenses); and, if not, 2) whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates.

There was no finding by the Court that public health and safety required offsite storage or disposal by 200i-2009j In directing the Commission to address the safety of at-reactor storage beyond 2007-2009, the Court recognized the possibility th.at an offsite storage or disposal facility might not be available by then.

The Commission lias not identified a date by which a repository must be available for health and safety reasons. Taking into account institutional requirements for spent fuel storage, the Commission found, under Finding 3 in.

I the 1984 Waste Confidence Decision, that spent fuel would be safely managed until sufficient repository capacity is available. The Commission_ also found, however, that in effect, under the second part of Finding 2, safe management would not need to continue for more than 30 years beyond expiration of any reactor's OL, because* sufficient repository capacity was expected to become*

available within those 30 years *. Considering that spent fuel would not have to

• be stored more than 30 years after any reactor's 40-year OL expiration, and

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taking into account the techni _ca 1 requirements for such storage, the Cammi ssion went on*to determine under Finding 4 that, in effe.ct, spent fuel could be safely stored for at least 70 years after discharge from a reactor. Thus, the Commission's 1984 Decis.ion did not establish a time when sufficient repository capacity would be required; it established a minimum period during which storage would continue to be safe and environmentally acceptable pending the expected availability of sufficient repository capacity.

Bearing in mind that reactor facilities were originally designed and Ols issued for a licensed life for operation of 40 years, the Commission is proposing elsewhere in this Federal Register notice a clarifying revision of Finding 4 to say that spent fuel can be safely stored at a reactor for at least 30. years after. the "licensed life for operation" of that reactor. Implicitly, the proposed use of the phrase "licensed 1,ife for operation" clarifies that the

- Commission found in 19"84 that NRC licensing requirements for reactor facility design, coristruction, and operation provide reasonable assurance that spent fuel can be stored safely and without significant environmental impacts for at least the first 40 years of the reactor's life. The ColTD'llission s proposed 1

• finding also implies that, barring any significant and pertinent unexpected developments, neither technical nor institutional constraints would adversely affect this assurance for at least another 30 years after that first 40 years.

Another implication of this revised finding is that, where a utility is able to meet NRC requirements to extend that reactor's operating lifetime by license renewal, spent fuel storage for at least 30 years beyond the end of the period

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of extended life will also be safe and withoµt significant environmental impacts.

In assessing the effect of early slippages in DOE repository program milestones, therefore, the most important consideration is not the earliest date that an operating license actually expired, but the earliest date that an OL was issued. The earliest OL to be issued was for Dresden 1 in 1959, followed by a number of reactors licensed for operation in* 1962. The Ols for all of the 111 power reactors now licensed to operate are currently scheduled to expire sometime within the first three decades of the twenty-first century, which is also the period in which their currently licensed life for operation would end. (See Nuclear Regulatory Commission 1989 Information Digest, NUREG-1350, Vol. 1, p. 33.) Thus, conservativ~ly assuming here that there will be no license renewals, the earliest timeframe when a repository might be needed to dispose of spent fuel from the majority of reactors is 2029-2050.

As proposed in the first part of Finding 2, the Commission has reasonable assurance that a repository will be available within the first quarter of the twenty-first century. Even if a repository were not available until 2025, this would be several years before the beginning of the earliest timeframe within which, based on an assumed 30-year storage after an assumed 40-year licensed life of reactor operation, a repository might be needed for spent fuel disposal. Thus, early slippages in DOE s program milestones do not affect the 1

Commission's confidence that a repository will be available within that timeframe.

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2.B.4. NRC has stated that the 3- *to 4-year license application review _

schedule is optimistic, and that for NRC to meet this schedule, DOE must submit a complete and high-quality license application. In the September 16, 1988 NRC comments to DOE on the Draft 1988 Mission Plan Amendment, the Commission requested that DOE acknowledge its.

commitment to develop this complete and high-quality application, "even if this would result in longer times to collect the necessary information and subsequent delays in submitting the license

• application. 11 Will NRC's emphasis on the completeness and quality of the license application have a significant effect on the timing of the submittal of the license application and subsequent licensing proceeding to grant construction authorization in time for repository.availability by 2007-2009? -

As the NRC indicated to DOE in NRC's October 25, 1985 comments on the draft PDS, the three-year statutory sch.edule for the NRC licensing proceeding on the application for construction authorization is optimistic. The Commission has sought ways to improve the prospects for meeting this schedule, for example by

-developing the LSS for expedited document discovery during the licensing proceeding. _

In the same correspondence on the PDS,.NRC also stated that the adequacy of the three-year review period depends on DOE's submittal of a complete and high-quality application. A license application supported by inadequate data may lead to-findings during the licensing proceeding that the results of certain tests cannot be admitted as part of the license application *. If- it is not possible to repeat the tests in question, NRC may have no alternative but to deny the application -- with a consequent loss of program mo_menturrt and considerable financial cost.

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In the November 1989 Reassessment Report, DOE announced extensions in all major reposi'tory program milestones. The current target date for repository availability is 2010. In a speech before the 1989 Nuclear Energy Forum, W. Henson Moore, Deputy Secretary of Energy, stated that a permanent repository at Yucca Mountain could not be operational before 2010, under optimum.

circumstances. The 2010 at-the-earliest timeframe falls outside of the 2007.-2009. timeframe for an II offs ite storage solution". in the 1979 Court remand which precipitated the NRC s Waste Confidence Proceeding.

1 In the Reassessment Report, DOE noted that in developing its current schedule, certain activities, one of which was NRC 1 s review of the license application, were outside of DOE 1 s control. However, DOE also stated that it would continue its ongoing interactions with NRC and EPA 11 to reduce t.he number_ of unresolved issu_es remaining at the time of licensirg, which should enhance confidence that the license application can be reviewed in three years, as called for in the Nuclear Waste Policy Act. 11 The NRC does not believe that it is likely that NRC's emphasis on completeness and quality of the license application will contribute to substantial delays in submitting the license application and in the licensing proceeding that would delay repository availability much beyond 2010 at the Yucca Mountain site.

In any case, the Corrunission remains convinced that the benefits to the repository program of submitting a high-quality license application would outweigh the cost of delay in preparfng the application. NRC.has always placed great emphasis* on early resolution of potential licensing issues in the interest of expeditious review of the license application and timely repository

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availability. It is in the same spirit of timely repository operation that the Commission is urging greater attention to quality than to meeting the schedule for submittal of the license application. NRC believes that a complete and high-quality license application offers the best available assurance that timely repository licensing and operation can be achieved.

In addition to expediting the review of the application, a high_-quaHty license application and site characterization program should enhance overall confide.nee that any site granted a construction authorization will prove to be reliable during the period of performance confirmation.* It will also increase publtc confidence that the program is being carried out in a thorough and technically sound manner.

2.C. Conclusion on Finding 2.

In reexamining the technical and institutional uncertainties surrounding the timely development of a geologic repository since the 1984 Waste Confidence Decision, the Corrunission has been led to question the conservatism of its expectation that a repository would be available by 2007-2009.

At the time of the 1984 Decision, the Commission said that timely attainment of a repository did not require DOE to adhere strictly to the milestones set out in the NWPA, and there would be delays in some milestones. It did not appear to the Commission at **the time that delays of a year or so in meeting any of the

-.146 -

milestones would delay the date of repository availability by more than a few years beyond the 1998 deadline specified in the Act.

Since then, however, several developments have made it.apparent that delays of more than a few years are to be the norm rather than the exception in the early years of this program. There has been a twelve-year slip in DOE s estimate of 1

repository availability from 1998 to 2010, and DOE has been .unable to meet such near-term repository.program milestones as excavation of the exploratory shaft and the start of in-situ testing. There remains the possibility that potential repository availability at the Yucca Mountain site will be further delayed due to unforeseen problems during site characterization.

In predicting the'timing of repository availability, the suitability of-Yucca Mountain should not be assumed.* Yucca Mountain is now the only candidate site available; the NWPAA required that DOE terminate site characterization activities at all sites other than the Yucca Mountain site. In effect, the 9 2007-09 schedule for repository availability in the original Waste Confidence Decision could have been met only if Yucca Mountain survived the repository development process as a licensed site without major delays in site characterization and licensing. If this site were found to be unlicenseable or otherwise unsuitable, characterization would have to begin at another site or suite of sites, with consequent further delay in repository availability. The final decision on the suit~bility of the site to proceed to licensing and repository development will rest with DOE, but the position of the NRC staff will figure in that decision. The staff will not be Bble to make a

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recommendation to a licensing board to authorize repository construction at Yucca Mountain until all site characterization activities have been completed.

DOE might thus be unable for several more years to determine whether there will in fact have to be a delay to find and characterize another site.

Another reason the Commission is unwilling to assume the suitability of Yucca Mountain is that NRC must be mindful of preserving all its regulatory options.

-- including a recommendation of license application denial. -- to assure adequate protection of public health and safety from radiological risk. In our view, it is essential to dispel the notion that for schedular reasons there is no alternative to the currently preferred site. This vi~w is consistent with

. past Commission statements that the quality of DOE's preparations for a license*

application should take precedence over timeliness where the two conflict. It is also consist~nt with the view that .because we are making predictions about completion dates for a unique and complex enterprise at least some 20 years hence, it is more reasonable to express the timescale for completion in.decades rather than years.

In order to obtain a conservative upper bound for the timing of repository availability, the Commission has made the assumption that the Yucca Mountain site will be found to be unsuitable. If DOE were authorized to initiate site screening for a repository at a different site in the year 2000, the Commission believes it reasonable to expect that a repository would be available by the year 2025. This estimate is based on the DOE position that site screenin~ for a second repository should begin 25 years before the start of waste acceptance. ,

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The consideratio~ of technical and institutional issues presented here has found none that would preclude the availabi_lity of a repository withi_n this timeframe. Given DOE 1 s revised schedule, which provides 11 years for site characterization activities instead of six, it is possible that the Yucca Mountain site could be found unsuitable after the year 2000. In this case, DOE

• would have fewer than 25 years to initfate site screening and develop a repository for availability by 2025. The NRC will evaluate the likelihood of this development during the next scheduled review of the Waste Confidence Decision in 1999.

For the second part of its 1984 finding on repository availability, the Comm, ss ion found reasonable assurance that sufficient repa~s itory capacity wi 11 be available within 30 years beyond expiration of any reactor OL to dispose of existing commercial high lev.el waste and spent fuel originating in that reactor and generated up to that time. The Commission believes that this finding should also be modified in light of developments since 1984. _

When the Commission made this finding, it took into consideration both technical and institutional concerns. The technical concern centered on the ability of the spent fuel and the engineered at-reactor storage facilities to meet the requirements for extended post-operational storage before shipment.for disposal. The institutional question concerned whether the utility curr~ntly responsible fof post-operational at-react?r storage, or some substitute organization, would be able to* assure the continued safety of this storage.

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The principal new developments since 1984 that bear on these question~ are: 1) that dry spent fuel storage technologies have become operatibnai on a commercial scale; and 2) that several utilities are proceeding with plans .to seek renewals of their 0ls, with appropriate plant upgrading, for an additional period up to 30 years beyond the 40-year term of their current licenses. The accumulation of operating experience with dry-cask storage, a technology requiring little active long-term maintenance, provides additional assurance that both the technical and institutional requirements for extended post-operational spent fuel storage will be met. License renewals, however, would have the effect of in.creasing requirements for both the quantity and possibly the duration of storage. If the Commission were to grant 30-year license renewals, the total operating life of some reactors cou.ld be 70 years, so that the spent~fuel initially generated in such reactors would have to be stored for about 100 years, if a repository were not available until 30 years after the expiration of their last 0Ls. This raises the question as to whether that.spent fuel, and the hardware and civil engineering structures for storing it, can continue to meet NRC requirements for an additional 30 years beyond the period the Commission supported in 1984.

For all the .reasons cited in the discussion of Finding 4, the Commission believes there is ample techriical basis for confidence that spent fuel can be stored safely and without significant environmental impact at these reactors for at least 100 years .. If a repository were available within the first quarter of the twenty-first century, the oldest spent fuel could be shipped off

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the sites of all currently operating reactors well before the spent fuel initially generated in them reached the age of 100 years.

The need to consider the institutional aspects of storage beyond 30 years after OL expiration was ri.ot in evidence in 1984 because the Commission was confident that at least one repository would be available by 2007-2009. On that schedule, waste acceptan-ce of spent fuel from the first reactor whose operating license had expired (Indian Point 1, terminated in 1980) could have begun within 30 years of expiration of that license~ If a repository does not prove.

to be available until 2025, however, it would not be available ~ithin 30 years of the time that OLs could be considered ~ffectively to have expired for Indian Point 1 and the three other plants with spent fuel onstte that ~ere retired before the end of ~heir licensed life for reactor operation. The same would be true of any additional reactors prematurely retired between now and 1995, when th.e 30-year clock starts for the availability of a repository by 2025.

Premature shutdowns notwithstanding, the Commission has reasons to be ass~red that the spent fuel at all of these reactors will be stored safely and without significant environmental impact until sufficient repository capacity becomes available.

Considering fjrst the technical reasons for this assurance, it is ~mportant to recognize that each of these reactors and its spent fuel storage installation were oiiginally licensed in part on ihe strength of the applicant's showing that the systems and component~ of concern were designed and built to assure safe operation for 40 years under expected normal and transient severe

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conditions. All of the currently retired reactors have a significant portion_

of that 40-year expected life remaining, and all have only small quantities of spent fuel onsite in storage installations that were licensed to withstand considerably larger thermal and radiation loadings fro~ much greater quantities of spent fuel. Of the four reactors currently retired with spent fuel onsite, the two with far the longest terms of operation, Lacrosse and Dresden, were operated for 19 and 18 years, respectively.

For the continued safe management of the spent fuel in storage installations at any existing or potential p_rematurely retired plant, th_e Commission belie).'E!S it can reasonably rely on the continued structural and functiona-1 integrity of the plant's engineered storage installations for at least the balance of its originally licensed life as if the OL were still in effect. This is to say that for the purposes of Finding 2, no foreseeable technical constraints have arisen to disturb the Commission's assurance that spent fuel storage at any reactor will remain safe and environmentally acceptable for at least 30 years after its licensed life for operation, regardless of whether its OL has been terminated at an earlier date.

The Commission also sees no insurmountable institutional obstacles to the continued safe management of spent fuel during the remainder of any shutdown reactor's initially licensed life for operation, or for at least 30 years th~reafter. Because there will- still be an NRC possession li*cense for the spent fuel at any reactor that has indefinitely suspended operations, the Commission will retain ampleregulatory authority to require any measures, such

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as removal of the spent fuel remaining in storage pools to passive dry storage casks, that might appear necessary after an OL expires. Even if a licensed utility were to become insolvent, and responsibility for spent fuel management were transferred to DOE earlier than is currently planned, the Commission has no reason to believe that DOE would be unable to carry out any safety-related measures NRC considers necessary. Thus, in the case of a premature reactor retirement, the Commission has an adequate basis, on both technical and institutional grounds, for reasonable assurance that spent fuel can be stored safely and without significant environmental impacts for at least 30 years bey~nd not only the actual end of that reactor's OL, but the end of its originally licensed life for operation.

In sum, considering developments since 1984 in the repository development program, in the operating performance of U.S. power reactors, and in _spent fuel storage technology, the Commission finds that: (1) the overall public health, safety, and environmental tmpacts of the possible unavailability of a*

repository by 2007-2009 would be insignificant; and (2) neither 30-year renewals of reactor licenses nor a delay in repository availability to 2025 wi 11 result in significant :safety or env i ronmenta 1 impacts from extended post-operational spent fuel storage.

The Commission finds ample grounds for its proposed revised findings on the expected availability of a repository. The institutional support for the repository program is well--established. A mechanism for funding repository program activities is in place, and there is a provision in the NWPA for

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adjusting, if necessary, the fee paid by utilities into this fund. Congress has continued to provide support for the repository program in setting milestones, delineating responsibilities, establishing advisory bodies, and providing a mechanism for dealing with.the concerns of States and affected Indian tribes.

Technical support for extended spent fuel storage has improved since 1984.

Considering the growing availability, reasonable cost, and accumulated operating experience with new dry cask spent fuel storage technology since then, the Commission now has even greater assurance that spent fuel can be stored safely and without signtficant environmental impact for at least 30 years after the expected expiration of any reactor 1 s 0L. Where a reactor 1 s 0L has been.terminated before the expected expiration date, the Commission.has an adequate basis to reaffirm what was implicit in its initial concept, namely:

that regardless of the actual date when the reactor s operating authority 1

effectively ended, spent fuel can be stored safely and without significant environmental impacts for at least 30 years beyond that reactor s licensed life 1

for operation.

There is thus no foreseeable health and safety or environmental requirement that a repository be made available within the 2007-2009 timeframe at issue in the Commission s original proceeding.

1 Indeed, the Commission sees important NRC mission-related grounds for avoiding any statement that repository operation by 2007-2009 is required. Geologic

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disposal of high-level radioactive wastes is ~n unprecedented endeavor. It requires reliable projections of the waste isolation performance of natural and engineered barriers over millennia. After the repository is sealed, retrieval of the emplaced wastes will no longer be practicable, and the commitment of wastes to that site will, by design, be irreversible. In DOE's testing, both in the laboratory and at the candidate repository site, in its development of facility and waste-package designs, and in a 11 other work to demonstrate that NRC requirements will be met for a repository at Yucca 'Mountain, the Commission believes that the confidence of both NRC and the pu~lic depends less on meeting the schedule for repository operation than on meeting safety requirements and doing the job right the first time. Thus, given the Commission's assurance that spent fuel can safely be stored for at least 100 years if necessary, it appears prudent for all concerned to prepare for the better-understood and more manageable problems of storage for a few more years in order to provide additional time to assure the success of perman?nt geologic disposal.

This is not to say that the Commission is unsympathetic to the need for timely progress toward an operational repository. It is precisely because NRC is so confident of the national commitment to achieve early repository operation that the Commission believes it no longer need add its weight to the considerable pressures already bearing on the DOE program. There is ample institutional impetus on the part of others, including Congress, the nuclear power industry, State utility rate regulatory bodies, and consumers of nuclear-generated power, toward DOE achievement of scheduled program milestones~ With continuing confidence in the technical feasibility of geologic disposal, the Commission

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has no reason to doubt the institutional commitment to achieve it iri a timeframe well before it might become necessary for safety or environmental reasons. Indeed, the Commission believes it advisable not to attempt in this review a more precise NRC estimate of the point at which a repository will be needed for* radiological.safety or environmental reasons, lest this estimate itself undermine the commitment to earlier achievement of repository operations.

To find reasonable assurance that a repository will be available by 2007-2009, however, is .a different and more consequential proposition in the context of this review. In light of the delays the program has encountered since its inception, and the regulatory need to avoid a premature commitment to the Yucca Mountain site, the Commission could not prudently describe a bas~s for assurance that the previous DOE schedule for repository operation in 2003 would not slip another four to six years under any reasonably foreseeable

-- circumstances. The NRC believes it is more realistic to expect that a reposjtory at the Yucca Mountain site could be available by the year *2010 or a few ~ears thereafter, if the Yucca Mountain site is found to be suitable. This revised estimate, however, could too easily be misinterpreted as an NRC estimate of-the time at which continued spent fuel storage at these Sites would be unsafe or environmentally significant. The Commission's enhanced confidence in the safety of extended spen~ fuel storage provides adequate-grounds for the view that NRC need not at this time.define more precisely the reriod when, for.

reasons related to NRC s mission, a permanent alternative to post-opera~ional 1

spent fuel storage will be needed. The Commission therefore p*roposes the

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following revision of its original Finding on when sufficient repository capacity will be available:

The Commission finds ~easonable assurance that at least one mined geologic repository wi 11 be available within the first quarter of the twenty-first century, and s.ufficient repository capacity will be availablewithin 30

_ years beyond the licensed life f£r operation (which may include the term of a revised or renewed license) of any reactor to dispose of the ,

commercial high-level radioactive waste and spent fuel originating in such reactor 1i'nd generated up to that time.

Reaffirmed Finding 3: The Commission finds reasonable assurance that high-level radioactive w~ste and spent fuel will be managed, in a safe manner until sufficient repository capacity is available to assure the safe disposal bf all high-level waste and spent fuel.

3.A; Issues Considered in Commission s 1984 Decision on Finding 3.

1 In the Commission I s discussion *of Finding 3 in its Waste Confidence Decision -*

(49 FR 34658,- August 31, 1984), in* Section 2.3 1 Third Commission Finding,* the Commission stated, Nuclear power plants whose operating licenses expire after the years 2007-09 will be subject to NRC regulation during the entire period between their initial operation and the availability of a waste repository. The Commission has reasonable assurance that the spent fuel generated by these licensed plants will be managed by the licensees in- a safe manner.

Compliance with the NRC regulations and any specific license conditions 1 The parenthetical phrase 11 which may include the term of a revised or renewed license 11 has been added to revised Finding 2 to make it consistent with revised Finding 4.

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that may be imposed on the licensees will assure adequate protection of the public health and safety.. Regulations primarily addressing spent fuel storage include 10 CFR Part 50 for storage at the reactor facility and 10 CFR Part 72 for storage in independent spent fuel storage installations (ISFSis). Safety and environmental issues involving such storage are .

addressed in licensing reviews under both Parts 50 and 72, and continued storage operations are audited and inspected by NRC. NRC's experience in more than 80 individual evaluations of the safety of ~pent fuel storage*

shows that significant releases of radioactivity from spent fuel under licensed storage conditions are extremely remote.

_Some nuclear power plant' operating licenses expire before the years 2007-09. For technical, economic or other reasons, other .plants may choose, or be forced to terminate operation prior to 2007-09 even though their operating licenses have not expired. For example, the existence of a safety problem for a particular plant could prevent further operation of the plant or could require plant modifications that make continued plant operation uneconomic. The licensee, upon expiration or termination of its license, may be granted (under 10 CFR Part 50 or Part 72) a license to retain custody of the spent fuel for a specified term (until .repository

• capacity is available and the spent fuel can be transferred to DOE under Sec. 123 of the Nuclear Waste Policy Act of 1982) subject to NRC regulatibns and license conditions needed to assure adequate protection of the public. Alternatively, the owner of the spent fuel, as a last resort, may apply for an interim storage contract with DOE, under Sec. 135(b) of the Act, until not later than 3 years after a repository or monitored retrievable storage facility is available for spent fuel. For the reasons discussed above, the Commission is confident that in every case the spent fuel generated by those plants will be managed safely during the period between license expiration or termination and the availabili(y of a mined waste repository for disposal.

Even if a repository does not become available until 2025, nothing.has occurred during the five years since its original Decision to diminish the Commission's confid~nce that high-level waste and spent fuel will be managed in a safe

_manner until a repository is available. The same logic just stat~d continues to apply through the first quarter of the twenty-first century. NRC regulations remain adequate to assure safe storage of spent fuel arid radioactive high-level waste at reactors, at independent spent fuel storage

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installations (ISFSis), and in an MRS until sufficient repository capacity is available.

10 CFR Subsection 72.42(a) provides for renewal of licensed storage at ISFSis for additional 20-year periods for interim storage, or for additional 40-year periods for monitored retrievable storage of spent fuel and solidified radioactive high-level waste if an MRS facility is constructed, licensed, and operated. This would ensure that spent fuel and solidified high-level waste, if any were to be delivered to an MRS facility, would remain in safe storage under NRC regulation throughout its storage. The Commission has also published for public comme'nt a proposed amendment to Part 72 to issue a general license to reactor licensees to use approved spent fuel storage casks at reactor sites.

Currently, the Commission is considering the draft final amendment for this rulemaking action. If this amendment is pro~ulgated, no specific Part 72 license would be required. Operating license holdefs would register with NRC to use approved casks on their sites.

Spent fuel may continue to be ~tored in the reactor spent fuel pool under a Part 50 "possession only" license after the reactor has ceased operating. In addition, DOE's policy of disposing of the oldest fuel first, as set forth in its Annual Capacity Report, makes it unlikely that any significant fraction of total spent fuel generated will be stored for longer than the 30 years beyond the expiration of any operating reactor license. This expectation, established in the Commission's original 'proceeding, continues to be reasonable, even in the event that a repository is not av.ailable until some time during the first

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quarter of the twenty-first century. Even in the case of premature shutdowns, where spent fuel is most likely to remain at a site for 36 years or longer.

beyond OL expiration (see Finding 2, previously discussed), the Commission has

• confidence that spent fuel will be saf~ly managed until safe disposal is available.

Until the reactor site has been fully decommissioned, and spent fuel has been transferred from the utility to DOE as required by NRC regulations, the licensee remains responsible to NRC. Furthermore, under 10 CFR Subsection 50.54bb, originally issued in final form by the Commission with its 1984 Waste Confidence Deci~ion, a reactor licensee must provide to NRC, five years before expiration of an OL, notice of plans for spent fuel disposition. Accordingly, the Commission concludes that nothing.has changed since the enactment of the Nuclear* Waste Policy Act of 1982 and the Waste Confidence Decision in August 1984 to diminish the Commission 1 s 11

• • • reasonable assurance that high-level radioactive waste and spent fuel will be managed in a safe manner until sufficient repository capacity is available .... 11 Pursuant to the NWPA, the Commission issued i_n final form 10 CFR Part 53, 11 Criteria and Procedures for Determining Adequacy of Available Spent Nuclear Fuel Storage Capacity/' addressing the determination of need, if any, for DOE interim storage. No applications were received by the June 30, 1989 NWPA deadline incorporated into the Commission's rule, and it seems unlikely that any applications will be made to NRC for interim storage by DOE. Even if NRC

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had made an exception for a late application~ a determination would have to have bee.n made before January 1 ~ 1990 to comply with the NWPA.

3.B. Relevant Issues.That Have Arisen since the Commission's Original Decision on Finding 3.

Although a DOE facility may not be available to enable the Department to begin accepting spent fuel in 1998, as currently provided in the contnacts under the 9 NWPA, the Commission's confidence in safe storage. is unaffected by any potential contractual dispute between DOE and spent fuel generators and owners as to responsibility for spent fuel storage. In the event that DOE does not take title to spent fuel by thi~ date, a licensee under either 10 CFR Part 50 or Part 72 cannot abandon spent fuel in its possession.

The Commission recognizes that the NWPA limitation of 70,000 MTHM for the first repository will not provide adequate capacity for the total amount of s*pent fuel projected to be g,enerated by all currently operating licensed reactors.

The NWPAA effectively places a moratorium on a second repository program until 2007-2010. Either the. first repository must be authorized and able to provide expanded capacity sufficient to accommodate the spent fuel generated, or there must be more than one repository *. Since Congress specifically provided in the NWPAA for a first repository, and required DOE to return for legislative authorization for a second repository, the Commission believes that Congress will continue to provide institutional support for _adequate repository capacity.

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The Commission's confidence about.the availability of repository capacity is not affected by the possibility that some existing reactor licenses might be renewed to permit continued generation of spent fuel at these sites. Because only two reactor licenses are scheduled to expire before 20 3- the impact- of license renewals (a matter not considered in the Commission's 1984 Decision) will have no significan_t effect within the first quarter of the twenty-first century on scheduling requirements for a second repository. Renewals may slightly alleviate the need for a second repository in the short term, because spent fuel storage capacity will be expanded for extended storage at these reactor sites. Over the Tonger term, renewals might increase spent fuel generation well into the latter half of the twenty ... first century. Nonetheless, nothing in this situation diminishes the Commission's assurance that safe storage will be made available as needed; In summary, the Commission finds no basis for changing the Third Finding in its Waste Confidence Decision. The Commission continues to find ... reasonable assurance that high-level radioactive waste and spent fuel will be managed. in a safe manner until sufficient repository capacity is available to assure the safe disposal of.all high-level waste and spent fuel. 11 Original Finding 4: The Commission finds reasonable assurance that, if necessary, spent fue 1 generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations.

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

4.A. Issues Considered in Cominission s 1984 Decision on Finding 4.

1 In the Commission s discussion of Finding 4 in its Waste Confidence Decision 1

(49 FR 34658; August 31, 1984) Section 2.4 11 Fourth Commission Finding, 11 the Commission said that:

Although the Commission has reasonable assurance that at least one mined geologic repository will be available by the years 2007-09, the Commission also realizes that for va*rious reasons, including insufficient capacity to immediately dispose of all existing spent fuel, spent fuel may be stored

• in existing or new storage facilities for some periods beyond 2007-09.

The Commission believes that this extended storage will not be necessary for any period longer than 30 years beyond the term of an operating license. For this reason, the Commission _has addressed on a generic basis in this decision the safety and environmental impacts of extended spent fuel storage at reactor spent fuel basins or at either onsite or offsite spent fuel storage installations. The Commission finds that spent fuel can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of reactor operating licenses. To ensure that spent fuel which remains in storage will be managed properly until transferred to DOE for disposal, the Commission is proposing an amendment to its regulations (10 CFR Part 50). The amendment ~ill require the licensee to notify the Commission, five years prior to expiration of its reactor operating license, ~ow the spent fuel will be managed until disposal.

The Commission s finding is based on the record of this proceeding which 1

indicates that significant releases of radioactivity from spent fuel under licensed storage conditions are highly unlikely. It is also supported by

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the Commission's experience in conducting more than 80 fodividual safety evaluations of storage facilities.

The safety of prolonged spent fuel storage can be considered in terms of four major issues: (a) The long-term integrity of spent fuel under water pool storage conditions, (b) structure and component safety for extended facility operation, (c) the safety of dry storage, and (d) potential risks of accidents and acts of sabotage at spent fu~l storage facilities.

For reasons discussed above, the Commission arrived at a provisional figure of 4t 70 years or more for storage (i.e., a 40-year reactor OL span,.plus 30 years or more).

The 70-year-plus estimate is supported by oral testimony from the nuclear I

industry to the Cominission in the Waste Confidence Proceeding. (See Transcript of Commissi~n Meeting, "In the Matter of: Meeti-ng on Waste Confidence Proceeding," January 11, 1982, Washington, DC, pp. 148-160). This testimony specifically addressed safety issues related to water pool storage of spent fuel and supported the position that spent fuel could be stored for an indefinite period, citing the industry's written s~bmittal to the Commission in the proceeding. (See "The Capability for the Safe Interim Storage of Spent Fuel" (Document 4 of 4), Utility Nuclear Waste Management Group and Edison Electric Institute, July 1980). Some of this material alluded to in the oral testimony was subsequently referenced by the Commission in its discussion of water pool storage issues and its Fourth Finding of reasonable assurance that spent fuel and high level waste 11

... will be managed in a safe manner. 11 (See 49 FR 34658 at pp. 34681-2, August 31, 1984).

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If a reactor with a 40-year initial license were to have that license renewed for another 30 years, the Commission believes that the spent fuel generated at that reactor can be safely stored for at least several decades past the end.of the 70-year operating period. Adding to these 70 years the expected 30-year post-0L period during which the Commission believes, under Finding 2, that sufficient repository capacity will be made available for any reactor s spent 1

fuel, the total storag~ time would be about 100 years.

In maki'ng the original Fourth Finding, the Commission did not determine that for technical or regulatory reasons, storage would have to be limited to 70 years. This is apparent from the Commission 1 s use of the words 11

... for at least 30 years beyond the expiration of*that reactor's operating license

[emphasis added]. 11 Similarly, in using the words 11 at least" in its revised.

Finding Four, the Commission is not suggesting 30 years beyond the ljcensed life for operation (which may include the term of a revised or renewed license) represents any technical limitation for safe and environmentally benign storage. Degradation rates of spent fuel in storage, for example, are slow enough that it is hard to distinguish by degradation alone between spent fuel in storage for less than a decade and spent fuel stored for several decades.

The Commission's revised Finding here is meant to apply both to wet storage in reactor pools and dry storage in engineered facilities outside the reactor containment building. Both dry and wet storage will be discussed in detail next.

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Since the original Wast~ Confidence Decision, which found that material degradation processes in dry storage were well-understood, and that dry-storage systems were simple, passive, and easily maintained, NRC and ISFSI operator~

have gained experience with dry storage which confirms the Commission's 1984 conclusions. NRC staff safety reviews of topical reports on storage-system designs, the licensing and inspection of storage at two reactor sites, and NRC promulgation of the Part 72 amendment for MRS, have significantly increased the agency's understanding of and confidence in dry storage.

Under NWPA Section 218(a), DOE has carried out spent fuel storage research and development as well as demonstration of dry cask storage at its Idaho National i .

i Engineering Laboratory. Demonstration has been carried out for metal casks under review or previously reviewed by NRC staff.* DOE has also provided support to utilities in dry storage licensing actions (see Godlewski, N.Z.,

11 Spent Fuel StGrage -- An Update, 11 Nuclear News, Vol. 30, No. 3, March 1987, pp.47-,52)

\,

Dry storage of spent fuel has become an available option for utilities, with at-:reactor dry storage licensed and underway at.three sites: the H. B. Robinson Steam Electric Plant, Unit 2, in South Carolina, and the Surry Nuclear Station in Virginia. A license was recently granted for a modu.lar system at Duke Power Company's Oconee Nuclear Station site. N~w applications have b~en received in 1989 for CP&L's Brunswick site, for the Baltimore Gai and Electric Company's Calvert Cliffs site, and in 1990 for Consumer Power Company s Palisades site.

1 Based on utility statements of intent, and projections of need for additional

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storage capacity at reactor sites, the NRC staff expects numerous applications from utilities over the next decade ( see II Fina 1 Version Dry Cask Storage Study, 11 D0E/RW-0220, February 1989).

Since the original Waste Confidence finding, the Commission has reexamine.d long-term spent fuel storage in igsuing an amendment to 10 CFR Part 72 to addfess the storage of*spent fuel and high-leve1 radioactive waste in an MRS, as envisioned by Congress in Section 141 of the NWPA. Under this rule, storage in an MRS is to be licensed for a period of 40 years, with the possibility for renewal. The Commission determined not to prepare an environmental impact statement for the proposed amendments to 10 CFR Part 72, however. (See 53 FR 31651, p. 31657; August 19, 1988.) An environmental assessment and finding of no significant impact were issued because the Commission found that the consequences of long-term storage are not significant. The environmental assessment for 10 CFR Part 72, "Licensing Requirements for the Independent Storageof Spent Fuel and High-Level Radioactive Waste, 11 NUREG-1092, assessed

. ~1*

dry storage of spent fuel for a period of 70 years after receipt of spent fuel from a reactor:

The basis chosen for evaluating license requirements for the long-term storage of spent nuclear fuel and high-level radioactive waste in an MRS is an installation having a 70-year design lifetime and a 70,000 MTU storage capability. This assessment focuses on the. potential environmental consequences for a long-term storage period, a period for which the Commission needs to assure itself of the continued safe storage of spent fuel and high-level radioactive waste and the performance of materials of construction. This means the reliability of systems important to safety needs to be established to ensure that long-term storage of spent fuel and HLW does not adversely impact the environment.

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For example, the staff needs to* establish that systems, such as concrete shielding, have been evaluated to determine how their physical properties withstand the consequences of irradiation and heat flux for about a 70-year period. The Commission addressed structure and component safety for extended operation for storage of spent fuel in reactor water pool$ in.

the matter of waste confidence rulemaking proceeding. The Commission's preliminary conclusion is that experience with spent fuel storage provides an adequ~te basis for co~fidence in the continued_ safe storage of spent fuel for at least 30.years after expiration of a plant's license. The Com~ission is therefore confident of the safe storage of spent fuel for at least 70 years in water pools at facilities designed for a 40-year lifetime. The Commission also stated that its authority to require .

continued safe management of spent fuel generated by license_d plants protects the public and assures them the risks remain acceptable. In consideration of the safety of dry storage of spent fuel, the Commission's preliminary conclusions were that [its] .confidence in the extended dry storage of spent*fuel is based on a r~asonable understanding of the material degradation _processes, together with the recognition that dry storage systems are simpler and more readily maintained. In response tb Nuclear Waste Policy Act of 1982 authorizations, the Commission noted;

' ... the Commission believes the information above [on dry spent fuel storage research and demonstration] is sufficient to reach a conclusion on the safety and env.ironmenta l effects of extended dry storage. A11 areas of safety and environmental concern (e.g., maintenance of systems and components~~prevention of material degradation, protection against accidents and ~abotage) have b~en addressed and shown to present no more potential for adverse impact on the environmental and the public health and safety than storage of spent fuel in water pools. 1 At this time, the Commission is confident it can evaluate the long-term i.ntegrity of material for constructing an installation a.nd provide the needed assurance for safe storage of spent fuel and HLW to establish the licensibility of an MRS over extendid periods of time. The MRS fuel storage concepts discussed here for revision of 10 CFR Part 72 covers only dry storage concepts. [References omitted]

The Commission believes that its 1984 Fourth Finding should be changed to reflect the environmental assessment in the 10 CFR Part 72 MRS rulemaking and other evidence that spent fuel can be stored, safely and without significant environmental impact, for extended periods. Although the Commission does not believe storage in excess of a century to be likely, with or wfthout an MRS, there is the potential for storage of spent fuel for times longer than 30 years beyond the expiration of an initial, extended, or renewed reactor 0L, if a

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reactor operating under such a license were prematurely shut down. The Commission does not, however, see any significant safety or environmental problems associated with storage for at least 30 years after the licensed life for operation of any reactor, even if this effectively means storage for at

( '

least 100 years; in .the case of a reactor with a 70-year licensed life for operation.

Under the environmental assessment for the MRS rule, the Commission has found confidence in the safety and environmental insignificance of dry storage of spent fuel for 70 years following a period of 70 years of storage in spent fuel storage pools. Thus, this environment~l assessment supports the proposition that spent fuel may b~ stored safely and without significant environmental impact for a period of up to 140 years if storage in spent fuel pools occurs first and the period of dry storage does not exceed 70 years.

The Commission has also found that experience with water-pool storage of spent fuel continues to confirm that pool storage is a benign environment for spent fuel that does not lead to significant degradation of spent fuel integrity.

Since 1984, utilities have continued to provide safe additional reactor pool storage capacity through reracking, with over 110 such actions now completed.

The safety of storage in pools is widely recognized among cognizant professionals. Specifically, the Commission notes one expert's view that:

During the last 40 years there h.as been very positive experience with the handling and storing of irradiated fuel in water; thus wet storage is now considered a proved technology. There is a substantial technical basis fcir allowing spent fuel to remain in wet storage for several decades. For

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the past two decades, *irradiated Zircaloy-clad fuel has been handled and stored in water. There continues to be no evidence that Zircaloy-clad

.fuel degrades significantly during wet storage -- this includes: fuel with burnups as high as 41,000 MWd/MTU; coritinuous storage of low-burnup fuel for as long as 25 years; and irradiation of fuel in reactors for

• periods up to 22 years. Cladding defects have had little impact durin~

wet storage, even if the fuel is uncanned. [References omitted.] [See Bailey, W.J. and Johnston, Jr. A.B., et al., "Surveillance of LWR Spent*

Fuel in Wet Storage, NP-3765, El ectru Power Research Institute ( EPRI),

11 October 1984, pp. 2-10.]

• e This last conclusion has been reaffirmed by the same authors, who recently wrote: "There continues .to be no evidence that LWR spent fuel with Zircaloy or stainless steel cladd~ng degrades significantly during wet storage [EPRI 1~86; International Atomic Energy Agency (IAEA) 1982]." (See "Results of Studies on the Behavior of Spent Fuel in Storage, 11 Journal of the Institute of Nuclear Materials Management,i' Vol'. XVI, No. 3, April 1988, p. 27.IV A).

In addition to the confidence that the spent fuel assemblies themselves will not degrade significantly in wet storage, there is confidence that the water pools* in which the assemblies are stored wi.11 remain saf~ for extended periods:

As noted" in the recent IAEA world survey, the 40 years of positive experience with wet storage illustrates that it is a fu11y~deve1oped technology \'lith no associated major technological problems. Spent fuel storage pools are operated without substantial risk to the public or the plant personnel. There is substantial technical basis for allowing spent f~el to remain in wet storage for several decades. Minor, but repairable, problems have occurred with spent fuel storage pool components such as liners, racks, and piping. [See Bailey, W.J., and Johnson, Jr., A.B., et al., "Surveillance of LWR Spent Fuel in Wet Storage, EPRI NP-3765, 11 prepared by Battelle Pacific Northwest Laboratories, Final Report, October 1984, p. 6-1.]

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.The studies just cited also support the view that rates of uniform corrosion of spent fuel cladding in storage pools are low over time. Localized corrosion on cladding surfaces has also been gradual and*can be expected to remain so.

Cladding that has undergone damage While in the reactor core has not resulted in significant releases of radioactivity when stored in pools. Furthermore, the operational experience ~ccumulated since the 1984 Waste Confidence Decision and NRC experience in licensing ~nd inspection reinforce the conclusions in that Decision that wet storage involves a r~latively benign environment. There are no driving mechanisms, such as temperature and pressure, to degrade storage structures or components or the fuel itself, or to spread contamination~

Degradation mechanisms are gradual and well understood; they allow ample time for remedial action, including repair or replacement of any failing systems.

This extensive experience adequately supports predictions of long-term integrity of storage basins.

The Commission also notes the endorsement of this basic confidence by cognizant professional organizations:

../

The American Nuclear Society issued a policy stateme~t [ANS 1986] in 1986 regarding storage of spent nuclear fuel. The statement indicates that continued*wet storage of spent fuel at nuclear power plant sites until the federal government accepts it under existing contracts with the utilities is safe, economical and environmentally acceptable. [See Gilbert, E.R.,

Bailey, W.J., and Johnson, A.B.; "Results of Studies on the Behavior of Spent Fuel in Storage," Journal of the Institute of Nuclear Materials Management, Vol. XVI, No. 3, April 1988, p. ~7.IV A).]

The Commission is aware that in December 1986 at the Hatch nuclear power plant, radioactive water leaked out of a spent fuel transfer canal between spent fuel

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pools. Contaminated water drained into a swamp and from there into the Altamaha River. Also, more recently, -On August 16, 1988, a spent fuel pool cooling pump failed at the Turkey Point nuclear power plant, causing about 3000 gillons of radioactive water to leak jnto the spent fuel pool heat exchanger room. Approximately 1500 gallons leaked from that room to adjacent areas.

Approximately six to seven gallons entered the plant intake canal via storm drains. There was no radiation release offsite in this event. However, the shoes and clothing of approiimately 15 workers were contaminated.

The occurrence of operational events like these have been addressed by the NRC staff at the plants listed~ The staff has taken inspection and enforcement actions to reduce the potential for such operational occurrences in the future.

The NRC staff has spent several years studying in detail catastrophic loss of reactor spent fue 1 poo 1 water possibly resu 1t i ng in a fuel fire in a dry poo 1, and recently participated in litigation over this issue relative to Vermont Yankee. The 1987 report, 11 Severe Accidents in Spent Fue 1 Pools in Support of Generic Safety Issue 82 11 (NUREG/CR-4982), referred to in Public Citizen's comment represents an early part of the NRC's s_tudy. Subsequent study of the consequences and risks due to a loss of coolant water from spent fuel pools was conducted by the NRC, and the results were published in NUREG/CR-5176, "Seismic Failure and Cask Drop Analysis of the Spent Fuel Pools at Two Representative Nuclear Power Plants," January 1989, and NUREG-1353, "Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools, 111 April 1989. These reports w~re cited in the Commission's

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Proposed Waste Confid!;nce Decision Review (54. FR 39767-39797, at p.39795, September 28, 1989). Also issued in 1989, as part of the NRC staff's study, was 11 Value/lmpact Analyses of .Accident -Preventive and Mitigative Options for Spent Fuel Pools 11 ( NUREG/CR-5281). ,

The primary concern regarding accidents in spent fuel pools is the loss of water and ;ts capability to cool the radioactive fuel. Without sufficient water cooling, some performance assessment models suggest ihat the fuel's zircaloy cladding may initiate and sustain rapid o*xidation (fire) that may spread to adjacent fuel assemblies, with the potential of releasing large amounts of radioactivity.

The analyses reported in these NUREGs indicate that the dominant accident sequence which contributes to risk in a spent fuel pool is gross structur~l failure of the pool due to seismic events. Risks due to other accident scenarios (such as pneumatic seal failures, inadvertent drainage, loss of cooling or make-up water, and structural failures due to missiles, aircraft crashes and heavy load drops) are at least an* order of magnitude smaller. For this study, older nuclear_ power plants were selected, since the older plants are more vulnerable to seismic-induced failures. The selected plants included the Vermont Yankee and the H.B. Robinson plants.

Although these studies conclude that most of the spent fuel pool risk is derived from beyond design basis earthquakes, this risk is no greater than the*

risk from core damage accidents due to seismic events beyond the safe-shutdown

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earthquake. Because of the large inherent safety margins in the design.and construction of the spent fuel pool analyzed, it was determined that no actioh was justified to further reduce the risk (NUREG-1353}. As stated in the Preface to NUREG-1353:

This report presents the regulatory analysis, including decision rationale, for the resolution of Generic Issue 82, 'Beyond Design Basis Atcidents in Spent Fuel Pools.' The object of this regulatory analysis is*

to determine whether the use of high density storage racks for the storage of spent fuel poses an unacceptable risk to the health and safety of the public. As part of this effort, the seismic hazards for two older spent fuel pools were evaluated. The risk change estimates, value/impact and cost-benefit analyses~ and other insights gained during this effort, have shown that no new regulatory requirements are vlarranted in relation to this generic issue.

Thus, supported by the consistency of NRC experience with that of others, the Commission has co.ncluded that spent fuel can be stored safely and without significant environmental impact, in. either wet storage or in wet storage followed by dry storage, for at least 100 years. The Commission considers it unlikely, however, that any fuel will actually remain in wet storage for 100 years or everi for 70 years *. We aniicipate that, consistent with the currently developing trend, utilities will move fuel rods out of spent fuel pools and into dry storage to make room in pools for freshly-discharged spent fuel.

Although the Commission has concluded that reactor spent fuel pools can safely be used to store spent fuel fo~ 100 years, there is no technically compelling reason to use them that long. If reactor licenses are renewed for as long as 30 years; making a total of 70 years of operation, it will be necessary to store the spent fuel discharged at the end of the reactor's op~ration in a

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spent fuel pool for several years to allow for radioactive decay and thermal cooling. After this period, the fuel could be placed in dry storage and the spent fuel pool decommissioned. Thus, for most reactors, the most likely maximum period of storage will be well within the extended 30-year post-operational period under the Commission's proposed revision to Finding 4.

Moreover, considering that under certain conditions spnt fuel can be stored safely and without significant environmental impacts for up to 140 years, *the Commission believes there is ample basis for confidence in storage for at least 100 years.

In its 1984 Waste Confidence Decision, the Commission also concluded that 11 there are no significant additional non-radiological impacts which could adversely affect the environment if spent fuel is stored beyond the expiration of operating li.censes for reactors 11 (see 49 FR 34658 at .P* 34686, August 31, 1984). The Commission did not find anything to contradict this conclusion in its 1988 rulemaking amending 10 CFR Part 72 for long-term spent fuel and hig~-level waste storage at an MRS:

In August 1984, the NRC published an environmental a*ssessment for this proposed revision of Part. 72 NUREG-1092, 'Environmental Assessment for 10 CFR Part 72, Licensing Requirements for the Independent Storage of Spent Fuel and High-Level Radioactive Waste;* NUREG-1092 discusses the major issues of the rule and the potential impact on the environment. The findings of the environmental assessment are (1) past experience with 1

water pool storage of spent fuel establishes the technology for long-term storage of spent fuel with out af.fect i ng t_he hea 1th and safety of the public, (2) the proposed rulemaking to -include the criteria of 10 CFR Part 72 for storing spent nuclear fuel and high-level radioactive waste does not significantly affect the environment, (3) solid high-level waste is comparable to spent fuel in its heat generation and in its radioactive material content on a per metric ton basis, and (4) knowledge of material degradation mechanisms under dry storage conditions and the ability to

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institute repairs in a reasonable manner without endangering the health

[and safety] of the public .shows dry storage technology options do not significantly impact the environment.' The assessment concludes that, among other things, there are no significant environmental impacts as a result of promulgatior. of these revisions of 10 CFR Part 72.

Based on the above assessment, the Corranission concludes that the rulemaking action will not have a significant incremental environmental*

impact on the quality of the human environment. [53 FR 31651 at pp. 31657-31658; August 19, 1988.]

Thus, the 1988 amendments to 10 CFR Part 72 provide the basis for the Commission to conclude that the environmental consequences of long-term spent fuel storage, including'non-radiological impacts, are not significant.

Fina*lly, no considerations have arisen to affect the Commission's confidence since 1984 that the possibility of a major accident or sabotage with offsite radiological impacts at a spent-fuel storage facility is extremely remote. NRC has recently reexamined reactor pool storage safety in two studies, 11 Seismic Failure and Cask Drop Analyses of the Spent Fuel Pools at Two Representative Nuclear Power Plants" (NUREG/CR-5176) and "Beyond Design Basis Accidents in Spent Fuel Pools (NUREG-1353). These studies reaffirmed that there are no safety considerations that justify changes in regulatory requirements for pool storage. Both wet- and dry-storage activities have continued to be licensed by the Commission. In its recent rulemaking amending 10 CFR Part 72 to establish licensing requirements for an MRS, ihe Commission did choose to eliminate an exemption regarding tornado missile impact ... to assure designs continue to address maintaining confinement of particulate material." (53 FR 31651, p.

31655, August 19, 1988). However, NRC staff had previously considered tornado

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missile impacts in safety reviews of design topical reports and in licensing reviews under 10 CFR Part 72.

4.B. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 4.

In its o~iginal Finding 4, the Commission ftiund reasonable assurance of safe storage without sign;Jicant environmental impacts for at least 30 years beyond reactor DL expiration. Delays and uncertainties in the schedule for repository availability since the 1984 Decision have convinced the Commission to allow some margin beyond the scheduled date for repository opening currently cited by DOE. As noted in Finding 2, the Commission has reasonable assurance that at least one repository will be available within the first quarter of the twenty-first century. For all currently operating reactors, this would still be within the period of 30 years from expiration of their Ols, which the Commission previou~1y found to be the minimum period for which spent fuel storage could be considered safe and without significant environmental impact.

Under the NWPA as amended, DOE is authorized to dispose of up to 70,000 MTHM in the first repository before granting a construction authorization for a second.

Under existing licenses, projected spent fuel generation could exceed 70,000 MTHM as early as the year 2010. Possible extensions or renewals of OLs also

.need to be considered in asse~sing the need for and scheduling the second repository. It now appears that unless Congress lifts the capacity limit on the first repository -- and unless this repository has the physical capacity to dispose of all spent fuel generated under both the original a~d extended or

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renewed .licenses -- it will be necessary to have at least one additional repository. Assuming here that the first repository is available by 2025 and has a capacity on the order of 70,0QO rHHM, additional disposal capacity wou_ld probably not be needed before about th~year 2040 to *avoid storing spent fuel at a reactor for more than 30 years after expiration of reactor OLs.

Although action on a .second repository before the year 2007 would require Congressional approval, the Commission believes that Congress will take the necessary action if it becomes clear that the first repository site will not have the capacity likely to be needed .. If DOE were ab le to address the need for a second repository earlier, for example by initiating. a survey for a second repository site by the year 2000, DOE might be able to reduce the potential requirement for extended spent fuel storage in the twenty-first century. The Commission does not, however, find such action necessary to conclude that spent fuel can be stored safely and without significant environmental impact for extended periods.

The potential for generation and onsite storage of a greater ~mount' of spent fuel as a result of the renewal of existing Ols *does not affect the Commission's findings on environmental impacts.

• In Finding 4, the Commiss.ion did not base its determination on a specific number of reactors and amount of spent fuel generated *. Rather, the Commission took note of the safety of spent fuel storage and lack of environmental impacts overall, noting that individual actions involving such storage would be reviewed. In the event there were applications for renewal of existing reactor Ols, each of these actions would

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be subject to safety and environmental reviews, with subsequent issuance of an environmental assessment or environmental impact statement, which would cover storage of spent fuel at each reactor site during the period of the renewed license.

The Commission also notes that the amount of spent fuel expected to be discharged by reactors has continued to decline significantly, a trend already noted in the Commission's discussion of its Finding 5 (49 FR 34658 at p. 34687, Jl.ugu~t 31, 1984). At the time of the Commission's decision, " ... the cumulative amount of spent fuel to be disposed of in the year 2000 [was] expected to be

• 58,000 metric tons of uranium" (see Spent Fuel Storage Requirements" (Update 11 of D0E/RL-82-17) D0E/RL-83.:..1, January, 1983). Today, that figure has declined to 40,200 metric tons, the lower reference case which represents the conservative upper bound of commercial nuclear power growth (see "Integrated

\ Data Base for 1989: Spent Fuel and Radioactive Waste Inventories, Projections, and Characteristics," D0E/RW-0006, Rev. 5, November 1989). The amount of spent fuel considered likely to be discharged by the year 2000 in the Commission's 198~ decision will not be attained until the end of calendar year 2010, if then.

The Commission believes that its 1984 Finding 4 should be revised to acknowledge the possibility and assess the safety and environmental impacts of extended storage for periods longer than 70 years. The principal reasons for this proposed revision are that: (1) the long-term material and system degradation effects are well understood and known to be minor; (2) the ability

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to maintain the system is assured; a*nd (3) the Commission maintains regulatory authority over any spent fuel storage i nsta 11 at ion.

On the _basis of experience with wet and dry spent fuel storage and related rulemaking and licensing actions, the Commission concludes that spent fuel can be safely stored without significant environmental impact for at least 100 years, if necessary. Therefore, the Commission is revising its original Fourth Finding thus: "The Cammi ss ion finds reasonable assurance that, i_ f necessary, spent fuel generated in any reactor can be stored safely and without significant environmental imp~cts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or r'enewed license) of that reactor at its spent fuel storige basin, or at either onsite or offsite independent spent fuel storage installations.II Reaffirmed Finding 5: The Commis~ipn finds reasonable assurance that safe independent onsite spent fuel storage or offsite spe~t fuel storage will be made available if su_ch storage capacity is needed.*

5.A. Issues Considered in* Commission's -1984 Decision on Finding 5.

In its discussion of Finding 5 of its Waste Confidence Dectsi-0n (49 FR 34658; August 31, 1984), the Commission said that:

The technology for indepe~dent s~ent fuel storage installations, as discussed under the fourth Commission Ffnding, is available and demonstrated. The regulations and licensing procedures are in place.

Such installations can be constrOcted and licensed within a five-year time*

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interval. Before passage of the Nuclear-Waste Policy Act of 1982 the Commission was concerned about who, if anyone, would take responsibility for providing such installations on a timely basis. While the industry*

was hoping -for a government commitment, the Administration had discontinued efforts to provide those storage facilities .*** The Nuclear Waste Policy Act of 1982 establishes a national policy for providing

• storage facilities and thus helps to resolve this issue and assure that storage capacity will be available.

Prior to March 1981, the DOE was pursuing a program to provide temporary

. storage in off-site, or away-from-reactor (AFR), storage installations.

The intent of the program was to provide flexibility in the national waste disposal program and an alternative for those utilities unable to expand their own storage capacities. ,e Consequently, the participants in this proceeding assumed that, prior to the availability.of a repository, the Federal government would provide for storage of spent fuel in excess of th~t which could be stored at reactor sites. Thus, it is not surprising thijt the record of this proceeding prior to the DOE policy change did not indicate any direct commitment by the utilities to*provide AFR storage. On March 27, 1981, DOE placed in the record a letter to the Commission stating its decision 'to discontinue its efforts to provide Federal government-owned or controlled away-from-reactor storage facilities.' The primary reasons for the change in policy

• were cited as new and lower projections of storage require~ents and lack of Congressional authority to fully.implement the original policy.

The record of this proceeding indicates a general commitment on the part of industry to do whatever is necessary to avoid shutting down reactors or derating them because of filled spent fuel storage pools.* While industry's incentive for keeping a reactor in operation no longer applies after expiration of its operating license, utilities possessing spent fu~l are required to' be licensed and to maintain the fuel in safe storage until 1

removed from the site. Industry's response to the change in DOE's policy on federally-sponsored away-from-reactor (AFR) storage was basically a commitment to- do what is required of it, with a plea for a clear . .

unequivocal Federal policy .... The Nuclear Waste Policy Act of 1982 has now provided that policy.

The Nuclear Waste Policy Act defines public and private responsibilities for spent fuel storage and provides for a limited amount of

• federally-supported interim storage capacity.* The Act also includes provisions for monitored retrfevable storage facilities and for a research development and demonstration p~ogram for dry storage. The Commission believes that these provisions provide added assurance that safe independent onsite or offsite spent fuel storage will be available if needed. [References omitted] *

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The policy set forth in the NWPA regarding interim storage remains in place.

Therefore, the Commission s confidence remains unchanged.

1 The only policy change affecting storage involves long-term storage in an MRS. The NWPAA sets schedule restrictions on an MRS by tying it to the repository siting and licensing schedule. These restrictions effectively delay implementation of an MRS. Consequently, its usefulness in providing storage capacity relief to utilities is likely to be lost.

The NWPAA established a Monitored Retrievable S~orage Review Commission tasked

• vii th preparing a report on the need for an MRS facility as pa rt of the na t fona l nucl~ar waste management system (Section 143(a)). In its November 1989 report 11 Nuclear Waste: Is There a Need for Federal Interim Storage? 11

, the MRS Commission reached the following conclusion:

An MRS linked as provided in current law would not be justified, especially in light of uncertainties in the completion time for the repository. Consequently, the Commission does not recommend a linked MRS as required by current law and as proposed by .DOE.

In the November 1989 Reassessment Report, DOE stated that currE:nt linkages between the repository and MRS program make it impossible for the DOE to accept waste at an MRS facility on a schedule that is independent from that of the repository. Therefore, the DOE plans to work with the Congress to modify the current linkages between the repository and the MRS facility and to embark on an aggressive program to develop an integrated MRS facility for spent fuel. The DOE believes that if the linkages are modified, it is likely that waste acceptance at an MRS facility could begin by 1998 or soon thereafter.

Although the Comrnission s confidence in its 1984 Decision did not depend on the 1

availability of an MRS facility, the possibility of such a facility, as

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provided for in the NWPA, was one way in which needed storage could be made available. The NWPAA makes an MRS facility less likely by linking it to repository development, unless Congress is willing to modify these linkages.

The potential impact of the uncertainty surrounding an MRS on the Commission s 1 confidence is, however, inore than compensated for by operational and planned spent fuel pool expansions and dry-storage investments by utilities themse_lves

-- developments that had not -been made operational at the ~ime of the original Waste Confidence Decision. Consequently, the current statutory restrictions that may make an MRS ineffective for timely .storage capacity relief are of no consequence for the Commission s finding of confidence that adequate storage 1

capacity will be made available if needed.

Although the NWPAA limits the usefulness of an MRS by linking its availability to repository development, the Act does provide authorization for an. MRS facility. The Commission has remained neutral since its 1984 Waste Confidence Decision with respect to the need for authorization of an MRS facility. The Commission does not consider the MRS essential to protect public health and safety. If any offsite storage capacity is required, utilities may make application for a license to store spent fuel at a new site. Conseque_ntly, while the NWPAA provision does affect MRS development and therefore can be said to be limiting, the Commission believes this should not affect its confidence in the availability of safe storage capacity.

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5.8. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 5.

DOE will probably not be able to beg.in operation of a repository before 201'0

• under current plans, and operation might begin somewhat later. Given progress to date on an MRS, the link between MRS facility construction and repository construction authorization established by the NWPAA, and the absence of other

- concrete DOE plans to store the spent fuel, it seems unlikely that DOE will meet the 1998 deadline for taking title to spent fuel, unless DOE is successful in its efforts to work with Congress to modify the linkages. (Under Section 302(a)(5)(B) of the NWPA, " ... the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel [subject to disposal contracts].") This potential problem does not, however, affect the Cammi ss ion's confidence that storage capacity wi 11 be made availabl~ as needed.

The possibility of a dispute between DOE and utilities over the responsibility for providing spent fuel storage will not affect the public health and safety or the environment. Uncertainty as to contractual responsibilities raises questions concerning: (1) who will be responsible~ (2) at what point in time responsibility for the spent fuel will be transferred; (3) how the fuel will be managed; (4) how the transfer of management responsibility from the utilities to DOE will take place; and (5) how the cost of DOE storage might differ, if at all, from utility storage. Utilities possessing spent fuel in storage under NRC licenses cannot abrogate their safety responsibilities, however. Until DOE

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can safely accept spent fuel, utilities or s.ome other li'censed entity will remain responsible for it.

Estimates of the amount of spent fuel generated have continued to decline. At the time of the Commission's Decision, the Commission cited in Finding 5 the cumulative figure of 58,000 metric tons ura~ium of spent fuel generated in the year 2000 (See 49 FR 34658, p~ 34697, August 31, 1984.) More recently, DOE estimated 40,200 metric tons the l.ower reference case which represents the conservative upper bound of commercial nuclear power growth (see "Integrated Data Base for 1989: Spent Fuel and Radioactive Waste Inventories, Projections, and Characteristics," DOE/RW-0006, Rev. 5, N.ovember 1989). Although estimates I

may show an increase at some date well into the twenty-first century if licenses of some reactors are renewed or extended, this possibility does not affect the Commission's confi.dence in the availability of safe storage capacity until a repository is operational. The i ndus'try has made a general commitment to provide storage capacity, which could include away-from-reactor (AFR) storage capacity. *ro date,. however, uti 1i.ti es have sought to meet storage capacity needs at their respective r~actor sites. th~s, a new industry application for AFR storage remains only a pcitential option, which cur~ently seems unnecessary and unlikely.

Utilities have continued to add storage capacity by reracking spent fuel pools, and NRc*expects continued reracking where it is physically possible and represeDts the least costly alternative. Advances in dry-storage technologies and utility plans both have*a*positive effect on NRC's confidence. At the time

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the Commission reached its original *findings, dry storage of LWR spent fuel was, as yet, unlicensed under 10 CFR Part 72, and DOE s dry-storage 1

demonstrations in support of dry-cask storage were in progress at the Idaho National Engineering Laboratory (INEL).

Today, DOE s demonstration efforts have been successful (See Godlewski, N. Z.,

1 "Spent Fuel Storage-An Update," Nuclear News, Vol. 30, No. 3, March 1987, pp.

47-52, at p. 47.) Dry storage has been licensed at three reactor sites, and three new applications are under review. Dry cask storage is licensed at Virginia Electric Power Company's Surry Power Station site (see License, SNM 2501 under Docket No. 72-2), and dry-concrete module and stainless-steel canister storage is licensed at Carolina Power and Light Company's (CP&L s) H.

1 B. Robinson, Unit 2, site (see License SNM 2502, under Docket No. 72-3). A license was recently granted for a similar modular system at Duke Power Company's Oconee Nuclear Station site. New applications have been received in 1989 for CP&L s Brunswick site, the Baltimore Gas and Electric Company's 1

Calvert Cliffs site, and in 1990 for Consumer Power Company's Palisades site.

Applications are also expected for CP&L's Robinson 2 site (at another onsite location to allow for greater storage capacity) and Wisconsin Electric Power Company's Point Beach site. The Tennessee Valley Authority has indicated that it will apply for a licensed dry storage installation at its Sequoyah plant site.

Thus, the successful demonstration by DOE of dry cask technology for various cask types _at INEL, utilities* actions to forestall spent fuel storage capacity

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shortfalls, and the continuing sufficiency of the licensing record for the Commission to authorize increases in at-reactor storage capacity a 11 strengthen the Commission 1 s confidence in the availability of safe and environmentally.

sound spent fuel storage capacity.

Renewal of reactor OLs will involve consideration of how additional spent fuel generated during the extended term of thE; license will be stored onsite or offsite. There will be sufficient time for construction and licensing of any additional storage capacity needed.

In summary, the Commission finds no basis to change the Fifth Finding in its Waste Cqnfidence Decision. Changes by the. NWPAA, which may lessen the likelihood of an MRS facility, and the potential for some slippage in repository availability to the first quarter of the twenty-first century (see our discussion of Find{ng 2) are more than offset by the continued success of -

utilities in providing safe at-reactor-site storage _capacity in reactor pools and their progress in providing independent.onsite storage. Therefore, the

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Commission continues io find ... reasonable assurance that safe independent onsite spent fuel storage or offsite spent fuel storage will be made available if such storage is needed. 11 Dated at Rockville, Maryland, this For Nuclear R gulatory Commission.

• ecretary of

&~

DOCKET NUMBER PROPOSED RULE PR s. I-

. . ~ ~

0.0. Co, 14000, J*oo Bmh, FL 33408-0420 l=PL ( r~ FR 39?~z d ED USNRC OECEMBER 2 2 1989 VJ JAN -8 P4 :19 L-89-463 OFFICE: OF SECRETAR Y OOCKi: TiNG & S~fl VI C[

BRANCH Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Branch Re: Review and Proposed Revision of Waste Confidence Decision (54 Fed. Reg. 39,767) and Proposed Rule -- Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation (54 Fed. Reg. 39,765)

Dear Sir:

On September 28, 1989, the Nuclear Regulatory Commission (NRC) published for comment in the Federal Register its review and proposed revisi;n of the 1984 Waste Confidence Decision [54 Fed.

Req(:{~,;,., 767} ~-- A-t:: **the s~m~ time, :the NRC puJ::>lished for comment proposed conforming revisions to its regulations. [54 Fed. Reg.

39,765].

These comments are submitted by Florida Power & Light Company in response to the above-referenced notices.

In August of 1984, the NRC concluded what has now become known as the "Waste Confidence Proceeding." The purpose of that Proceeding was to assess generically the degree of assurance available that radioactive waste can be safely disposed of; to determine when such disposal or offsite storage will be available; and to determine whether radioactive wastes can be safely stored onsite past the expiration of facility licenses until offsite disposal is available. In its Decision, the Commission generally found that:

1. disposal of high-level radioactive waste and spent fuel (HLW) in a mined geologic repository is technically feasible; JAN 2 3 1990 ftetmowledged by caret::::....-. -

an FPL Group compan y

"'* ~- NUCLEAR REGULAlORY COMMISSIOM DOCKEllNG & SERVICE SECTION OFFICE OF THE SECRFT ARY OF THE COMMISSION Add' I Copi~s R~1:;r~ :' .i 5" Special Distribution OJP.f._ - -

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Mr. Samuel J. Chilk L-89-463 Page two

2. one or more mined geologic repositories will be available by the years 2007-09, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating 1 icense for disposal of HLW from that reactor;

3. HLW will be managed in a safe manner until sufficient repository capacity is available;

4. HLW can be stored safely for at least 3 0 years beyond expiration of any reactor operating license;

5. safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed.

At the same time, the Commission also issued two companion rulemaking amendments to conform the Commission's regulations to the findings reached in the Waste Confidence Decision. (49 Fed.

Reg. 34,688 (1984).] Finally, the Commission noted that its Waste Confidence Decision was unavoidably in nature of a prediction, and committed to review its conclusions "should significant and pertinent unexpected events occur or at least every 5 years until a repository *.* is available." (20 NRC 288 at 294.J The Commission has now completed its first, five-year review of the initial findings and underlying rationale based on developments since 1984. As a result, the Commission is proposing that the second and fourth of the five findings reached in the earlier Waste Confidence Decision, and enumerated above, be revised to read as follows:

o Finding 2: The Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the commercial high-level radioactive waste and spent fuel originating in such reaqtor and generated up to that time.

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

Mr. Samuel J. Chilk L-89-463 page three In addition, the Commission proposes to reaffirm the remaining findings, and modify the time between periodic reviews of its Waste Confidence Decision from no more than five, to no more than ten, years.

Finally, in keeping with the proposed revised Findings 2 and 4, the Commission is proposing conforming amendments to a portion of its regulations in 10 C.F. R. Part 51.

Florida Power & Light Company (FPL) supports the adoption of the revised Waste Confidence findings, modification of the periodicity of ~he Commission's review, and amendment of NRC regulations, all as proposed. The reasoning underlying each of the proposed actions is fundamentally sound and supports the Commission's determinations.

In addition, FPL is aware of the comments prepared by the Edison Electric Institute (EEI) and the Utility Nuclear Waste and Transportation Program (UWASTE). As a member of those organizations, FPL supports the views and position of EEI/UWASTE as expressed in their submittal.

Very truly yours, di:~<

r:~~in~~= President - Nuclear Energy RJA/JAD/gp

LO L:K[iEC-U~NHC Mai-,d. n I

• Lewis °90 JAN -3 Pl :18 7801 Roosevelt Boule v ard Suite 62 F'h i 1 a. , F'A 1 9152 uFF!C~ OF SECRETARY uOCKE TiNG & S[ilVlfT (215)624-157'-I BRANCl-i Ms Julia Ce<radc, Pre, ject t *lan.::<.QE'I" Unit8d St::.\te;:; Nucle ar* Fequl ..:itc,1-y Cc,mmissio,,

Washington, D. C. 20555

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Plt"?0 *5 e cc,n5ider* this lf-:?tte,** as my cc,mmC?nts c,n both the "Cc,nside ra tic,n of Envi1-c,nmental Impacts of Tempo1-ai-y Stcq-age of Spent t,l:.1clea *,- Fuel A*ftt?r Ce*ssatic,n c,f F<'.e::,c:teii* Ope1*,='tic,ns" c:~nd

"~Jaste Cc,nfidence Decish:*n Review." (Fedei- al Register*, Vc,lume 5t+

Ne,. 187, dated S12ptemb8r* 26, 1989) Statements in both notices specifically tie these notices together and, therefore, I shall send cc,mm ,: :,1t;:; c,n bcd.: h notices in this c*n E:.' lette1*.

Both these notices require that at-reactor storage be a *,:;). i 1 ab 1 e and s::< fr-.:, for i::1 t 1 east 100 ye ,x,* *; ;. One hunc.1n?d 'r' e::1 i". = i :,

an excessive a mount of time to depend upon institutional memory c,)- a,1 y b c1 d y ";:; mem eo , *, -. To loc,k into t he fuh .1r*c and h ave co *:*d 'jdc*n r.:e that our institutions will survive in a form which will provide

='.,::1.fe on-::;ite stc,,

• c.~qE: sugqests claii--voy.;.n1ce =-~nd nc:ot i--e,,~sc, ned approaches justified with hard evidence and dedicated funding.

This fi n dinq c,f stor*age beinq avail,Jble c1,1d sat-e 100 ycia1*s 1,1tc,

- e t*u +-"*.,:*1::.1 iacks any * ;nerit. The opposite finding shc,uld 1-eplace

'this *f i11ding. I ,*espectfully i-equest t;t-1::1.t; the Commis ,sic,n f in d thus:

"Due tc, the Depar* trnent of Enei-gy"s li::tc.k c,f quality t:onti* c:ol o f data and analysis, inability to qualify acceptable sites, accusa.tion aqair,::;t subconti- actor*s ~*Jhcn data cc:,nt,--adic:ts DDE"s preconceived as5umptions, and general adherence to the political scilutic.111 inst;ea d c,f sciantific ' er* acit-,,, The MRC Ci:'nnc, t fin ,j th::11":

temporary storage at reactors will en~ure that geological storage fc,r* spent fuel ~-Ji 11 be ava i J. =1.b 1 e and SD fe ~-,hen needed. 11 I ,,.d so wish to bring the Commission attention to the recent findings in the Bi i::o lc,qic a l Effects of Ic,nizinq Pc:.~dicd: ic,n, F;c>pc,r-t number* !""i.

BEIR 5 states that the danger from radioactivity is 4 or mo r e timi:'*;; hiqh t:> 1* th::11i pi e ~* ic*L1sly knc:,~m. The Findings c, *f the BEIH ~-~

report will require that the NRC change many of its radiation pi*c,tectic,n guidelines and i-uh:?s. Th ,: ?se ch,:1,*iges stemming fr*c,m the greater danger from radiation reported in the BEIR 5 report will i:< ffec t Be, th these* FF< n,::, ti ce;:;. Pl ea 5e s tc,p a 11 a.ct i c,n c,n thes2 rmtices until t he Cc,mmission can detei- mine tile e *ffect of th e? ne~-J I:EIR :=i i-- epc*i*t 0,1 these* nc,tic:e:s.

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VIRGINIA ELECTRIC AND POWE RICHMOND, VIRGINIA 23261

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Secretary ooc*~,"'~'&1~t1 v1ep- 723 United States Nuclear Regulatory Commission NllifRIROi Attention: Docketing and Service Branch Washington, D. C. 20555 Gentlemen:

VIRGINIA ELECTRIC AND POWER COMPANY COMMENTS CONCERNING PROPOSED RULE 10 CFR 51 Virginia Electric and Power Company has reviewed the proposed rules under 10 CFR 51, Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation and Waste Confidence Decision, which were published in the Federal Register Notice dated September 28, 1989. While the Company maintains that efforts to promptly resolve and implement a permanent repository for spent fuel need to be expedited by the Government, we support the determinations of the NRC as discussed in the notice that interim methods of storage can be safely used without significant environmental impact. We note for our Surry Independent Spent Fuel Storage Installation (ISFSI), that our current license expires on July 31, 2006. Consistent with the findings of this proposed rule, the NRC should initia1e actions to facilitate ISFSI license extensions reflective of the 30 years beyond current reactor operating license expiration dates.

Very truly yours,

~

q.'i?W~

W. L. Stewart

(

Senior Vice President - Nuclear

11.5. NUCLEAR REGULATORY COMMISSI08 DOCKETING & SERVI CE SECTION OFFICE OF THE .,ECRET ARY OF THE CCtM,\lSSION ri..,,. ' l .'* 1 .. r,tj tI S Pos tm'l rk C 1

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Commonwealth Edison One First National Plaza, Chicago, Illinois Address Reply to: Post Office Box 767

• Chicago, Illinois 60690 - 0767 December 22, 1989 COtKETED USNRC DOCKET NUMBER PR r ARO POSED RULE __ ~ ~~* ..,..-_- 1JJ CEC 29 A11 :22 Mr. Samuel Chilk Secretary

(~9 FR 3~167 )

OFrtC£ OF SECRETARY U.S. Nuclear Regulatory Co11111ission uOCK[i ING & S[ flVICF:

Washington, D.C. 20555 BRANCH

Subject:

Revisions to Waste Confidence Decision

Reference:

Federal Register Volume 54, No. 187, September 28, 1989, Proposed Rule: "Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation" This letter provides Commonwealth Edison Company's (CECo's) cormnents on the Referenced proposed rule and the revisions to the Waste Confidence Decision.

Long-Term Storage of Spent Fuel from Dresden 1 The NRC's discussion of the possible extended storage of spent fuel from Dresden 1 is not clear. The discussion includes three possible deadlines for on-site spent fuel storage; the years 2008, 2029 and 2059.

In the first instance, the NRC has concluded that from a financial and management perspective, spent fuel can be safely maintained for 30 years after the expiration of the facility operating license. For Dresden 1, which was indefinitely shutdown in 1978, the NRC suggest that the expiration date of the operating license could be considered to be the shutdown date. Therefore, if spent fuel is to remain stored on-site beyond 2008, an additional source of confidence would be required in order to assure the safe maintenance of spent fuel. In the case of Dresden 1, CECo's ability to transfer spent fuel from Dresden 1 to Dresden 2/3 would provide this additional level of confidence.

For other facilities where such a transfer is not possible, such as Humboldt Bay, the NRC's confidence in the long-term safe storage is provided by the retention of the NRC's authority to require whatever measures are necessary to protect public health and safety.

In the second instance the NRC has concluded that from a safety perspective, spent fuel can be stored on-site for 30 years beyond the full 40 year term of an operating license, for a total of 70 years. For Dresden 1, which was licensed in 1959, this implies that spent fuel can be safely stored on-site until 2029.

In the third instance, the NRC's discussion of this issue appears to support a conclusion that spent fuel can be safely stored on-site for 100 years, for Dresden 1 this would be until 2059. In discussing the aspects of its decision, the NRC addresses several items to support their confidence in DEC 3 1 198

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an on-site storage time of 100 years: 1) the finding that spent fuel can be stored safely on-site for 100 years (Reference at pages 39793-39796); 2) the recognition that the NRC will retain regulatory control over the spent fuel, requiring safe handling until it is placed in a repository; and 3) the fact that either the utilities or the DOE, if necessary, will provide the financial and managerial resources to safely maintain the fuel.

CECo recommends that the NRC clarify its discussion regarding what time period constitutes a safe storage time.

Storage of Spent Fuel - Moving Fuel Between Sites In discussing possible alternatives for storage of spent fuel from retired reactors, the NRC states:

"If the owner of the retired reactor also owned other reactors at other sites, the spent fuel at the retired reactor could be transferred, if necessary, to the storage facilities of other units still under active management." (Reference at page 39786)

In order to enhance the viability of this option, the NRC should reduce, to the maximwn extent possible, licensing uncertanties related to such fuel transfers. By pre-determining that spent fuel pool densification and alternate on-site spent fuel storage methods do not raise any significant hazards considerations the NRC's final decision would be strengthened.

Contracts Between Licensees and DOE The statement of consideration appears to interject the NRC unnecessarily into contracts between DOE and licensees. Every nuclear utility licensee has entered into a contract with the DOE for its acceptance of spent fuel beginning in the year 1998. Since that date is no longer considered attainable, it is possible that contractual disputes may occur. The NRC has stated that its confidence in safe storage is wiaffected by any potential contractual disputes between the DOE and the spent fuel generators/owners regarding who has responsibility for spent fuel witil it can be placed in a repository (Reference at page 39792). The NRC then weakens this statement of confidence by remarking that it would have more confidence if the DOE and licensees could resolve any contributing wicertainties by reaching an early and amicable resolution as to how and when the DOE will accept responsibility for spent fuel.

CECo believes that it would be appropriate to strike the statement regarding resolution of uncertainties for two reasons. First, it is inconsistent with the statement that the NRC is confident that any such disputes will not affect safe storage of fuel. As the NRC noted, licensees will not be permitted to abandon spent fuel merely because the DOE refuses to accept it. As long as the fuel is in the licensee's possession, the licensee's storage of the fuel will be subjected to the NRC's control and regulation. This should be sufficient to provide the NRC with absolute confidence in the safety of spent fuel storage, independent of any dispute between the DOE and licensees. Second, implied in the statement that the DOE and licensees should reach an early and amicable resolution of any uncertainties regarding ownership of spent fuel, is a request for licensee's

' to amend their contracts with the DOE to allow the DOE additional time to perform wider the contracts, or to refrain from taking action if the DOE defaults wider its contract. It is inappropriate for the NRC to interject itself into any potential contractual dispute between licensees and DOE.

Especially since the NRC has clearly stated that any such dispute would not affect its confidence that storage of spent fuel will not endanger the public health and safety. There is no basis for the NRC to suggest that licensees forgo their rights wider contracts that were volwitarily entered into by parties that were fully competent to widerstand their duties wider such contracts. The NRC should delete any reference to the resolution of possible future disputes between the DOE and licensees.

Use of Nuclear Waste Fund (NWF) to Aid Bankrupt Licensees The NRC has hypothesized that a spent fuel storage concern may arise if a licensee becomes insolvent prior to the time a geological repository is ready to accept fuel (Reference at pages 39786 and 39790). The NRC suggests that the DOE could accept responsibility for managing spent fuel witil a repository is available, in the event that a licensee becomes insolvent. The NRC states that it would be appropriate for the DOE to use monies from the NWF in fulfulling this responsibility. This would mean that the solvent utilities would be fwiding the storage of spent fuel generated by bankrupt licensees.

It is not clear whether or not the Nuclear Waste Policy Act (NWPA) would allow NWF monies to be used in this manner. Such a decision should be made only after careful evaluation and consideration of its implications. The NRC should seek and analyze comments on this issue before adopting it as a basis for confidence. Until further evaluation/analysis is conducted on this matter, it should be deleted.

e Costs Incurred by Licensees as a Result of Extension Additional costs will be incurred by the licensees as a result of delaying acceptance of spent fuel by the repository. Consideration should be given to address whether or not the monies associated with these costs will come from the NWF or be directly incurred by the licensee.

Low Level Radwaste Generated as a Result of Extension This proposed rule does not specifically address low-level radwaste concerns during the extension period. If the waste is stored in the spent fuel pool the resins used to maintain water quality will generate low-level radwaste requiring disposal. If CECo implements rod consolidation to conserve pool space during the extension, the end caps spacers, and tie rods may be declared low-level radwaste requiring disposal. The NRC should determine if these parts are to go to a Federal Repository or to a sited compact site for disposal.

Commonwealth Edison Company appreciates this opportwiity to comment.

M.S. Turbak Performance Improvement Manager LEH/gad/0466T

(jJ NUCLEAR GROUP HEADQUARTERS 955-65 CHESTERBROOK BL VD.

WAYNE, PA 19087-5691 "89 CEC 28 P2 :39 (219) uo-sooo December 27. 1989 OFF!C£ OF StC RF.TARY OOCKfTiNG & SEilV ICf:

Mr. Samuel J. Chilk !3RA NC1i Secretary of the C011111ission U.S. Nuclear Regulatory Comnission Docketing and Service Branch Washington. DC 20555

Subject:

Comnents Concerning the Nuclear Regulatory Comnission Proposed Rule 10 CFR 51. *consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operations* (54 FR 39765). and 10 CFR 51. *waste Confidence Decision Review* (54 FR 39767)

Dear Mr. Chilk:

This letter is being submitted in response to the Nuclear Regulatory C011111ission 1 s (NRC's) request for coaaents regarding the Proposed Rule 10 CFR 51.

• consideration of Environmental and Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation.u and 10 CFR 51. *waste Confidence Decision Review.*

published in the Federal Register (54 FR 39765 and 54 FR 39767. respectively. dated September 28. 1989).

The Philadelphia Electric Company (PECo) appreciated the opportunity to comnent -on this proposed rule. and the proposed changes to the Waste Confidence Decision. The proposed changes to 10 CFR 51. as described in 54 FR 39765 and 54 FR 39767. would permit temporary storage of spent fuel for at least 30 years beyond the licensed life for operation (which may include the term of a revised license) in the plant's spent fuel storage basin or at a onsite/offsite independent fuel storage facility. PECo agrees with the proposed changes to 10 CFR 51 and endorses the NRC's effort regarding this issue.

If you have any questions. please do not hesitate to contact us.

Sincerely yours.

J. o. L~.t~.

Director (J 1*

Licensing Section Nuclear Services Department DEC 3 1 19

• !. f-l{JCL[A~ E< UI iT ORY COMMI SSI DOCKET:, :r; f. :;r~Vl(E S[Cl ION OFFICE C~ 11-'~ ! r,:RFT Af<Y OF THE COfv,.1:,-;".)N

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Department of Energy DOCKET NUMBER Washington, DC 20585 P,ROPOSED RULE PR SJ CD

• ooc:KETEO USMRC CS'I rn39?t7)

DEC 2 7 1989 Secretary -of the CoDlission W IIC 27 P3 :47 U.S. Nuclear Regulatory CoJDdssion Attn: Chief, Docketing and . orFtCE Or StCREiARY Service Branch OOCKfl ING & S[iNIC[

Washington, D.c. 20555 BRANCH

Dear Sir:

This letter and its enclosure constitute the Department of Energy's (DOE) comments on two Federal Register notices published on September 28, 1989. The first notice (54 FR 39765-39767) proposed changes to 10 CFR 51.23 in consideration of environmental impacts of temporary storage of spent fuel after cessation of reactor operation. These proposed changes are based on a second notice (54 FR 39767-39797) which represents the Commission's review and proposed revision ~o the 1984 Waste Confidence Decision.

The DOE has reviewed the proposed revisions to the 1984 Waste Confidence Decision and the proposed rule. DOE supports the Commission's proposed changes in the waste confidence decision pertaining to the second and fourth findings, the conclusions in the proposed rule, and the Commission's proposal to extend the cycle of review of the waste confidence decision from every 5 years to every 10 years. Additional comments are provided in the v enclosure.

We appreciate the opportunity to comment on the proposed rule.

Xf you have any questions, please feel free to contact Ralph Stein (586-6046) of -.y staff.

Sine y,

~

• Acting Director Office of Civilian Radioactive Waste Management

Enclosure:

Department of Energy Comments on Proposed Changes to 10 CFR 51 (54 FR 39765-39767) and the Waste Confidence Decision Review (54 FR 39767-39797) cc:

R. Loux, State of Nevada M. Baughman, Lincoln County, RV

s. Brad.burst, Nye County, RV D. Bechtel, Clark County, RV

5. NUCLEAR RrGUIATORY COA-IMISSIOt-f 1

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Department of Energy Colllllents on Proposed Changes to 10 CFR 51 (54 FR 39765-39767) and the Waste Confidence Decision Review (54 FR 39767-39797)

General Comments o The Department supports the CoJlllllission*s proposed changes in the waste confidence decision pertaining to the second finding, concerning the initial availability of a repository.

o The Department supports the Commission's proposed changes in the waste confidence decision pertaining to the fourth finding which deals with the duration of safe spent fuel storage.

o The Department also supports the Commission's conclusions in the proposed rule.

o The Department concurs with the Commission's proposal to extend the cycle of review of the waste confidence decision from every 5 years to every 10 years.

Specific Comments o We agree, as pointed out in the analysis for the proposed fourth finding, that the possibility of a major accident with offsite radiological impacts at a spent fuel storage facility is extremely remote. To support this finding, NUREG 1353 has also examined the risk and consequences of a spent fuel pool accident which, in its analysis, appear to meet the public health objectives outlined in the Commission's Safety Goal Policy Statement, 51 FR 28044 (which states that the risk from an accident at a nuclear power plant shall be 0.11 of that normally encountered by the public).

o Page 39780. Third Column, Third paragraph

It is stated that "DOE has the responsibility for designing the LSS and bearing the costs associated with it and HRC will be responsible for implementing it.*

We agree that DOE has the responsibility for designing the LSS. :It is unclear to us as to what is *eant by

• implementing it.* The LSS rule (54 FR 14925) has indicated that the HRC, as LSS ad:Jllinistrator, is responsible for the management and operation of the LSS.

o The HRC envisions extending soe reactor operating licenses for up to 30 years. Such license renewals would probably increase the total aJaount of spent fuel requiring disposal or interilll storage. This potential increase in waste management requirements would be taken into account in DOE program planning. Also, CUJDulative impacts on waste manage-ment probably should be considered in the HRC's National Environmental Policy Act dOCUJDentation for license renewals.

2 Editorial Comments

1. Page 39783, second colu.n, first full paragraph, sixth line.

Replace *2203* with *2003* for consistency with the relllainder of the existing dOC1ment. However, in November 1989 the Departaent of Energy published the *Report to Congress on Reassessment of the Civilian Radioactive Waste Manag&Dlent Progra.* (DOE/RW-0247). This report provides a revised schedule of January 2010 for the start of waste emplacement in the geologic repository. Copies of this report were distributed to NRC at publication.

2. Page 39792, third colWllll, first full paragraph, third line.

Replace *10 years* with *100 years.*

Telephone (508) 779-6711 YANKEE ATOMIC ELECTRIC COMPANY TWX 710-380-7619 580 Main Street, Bolton, Massachusetts 01740-131lB;KfiEO USNRC

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,a ) December 26, 1989 "B9 fIC 27 P4 :ta uFTrCE Of SfCRfTARY CLA 89-097 DOCKfTING ~ SEilVIC[

BRANCH .

• nc 89-018 Secret.ary Unit.ed States lluclear Regulatory Commission Wasbingt.on, DC 20555

-Attention: Docketing and Service Branch SUbject.s: Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation (54FR39765) and

• Waste Confidence Review (54FR39767)

Dear Sir:

Yankee Atomic Electric Company (Yankee) appreciates the opportunity to comment on the proposed rule changes to 10CFR, Part 51, regarding the environmental impacts of temporary storage of spent fuel after cessation of reactor operation and the five-year waste confidence review. Yankee owns and operates a nuclear power plant in Rowe, Massachusetts. our lluclear Services Division also provides engineering and licensing services for other nuclear power plants in the Wort.beast, including Vermont Yankee, Maine Yankee, and

- Seabrook.

The Edison Electric Institute/Utility Buclear Waste and Transportation Program (EEI/UWASTE) bas submitted comments in support of the Commission's review and proposed revision of the 1984 Waste Confidence Decision and the proposed revision to the regulations. Yankee is in basic agreement with EEI/UWASTE's assessment.

We endorse, in principle, the Commission's Proposed Finding 2. Firstly, the Proposed Finding 2 addresses the current scbedular status of the mined geologic repository. The lack of a negotiator, delays in excavation of an exploratory shaft, delays in in-situ testing, and other factors have impacted and we expect will continue to impact this endeavor. The revised time period (first quarter of the twenty-first century) would appear to be more realistic.

I, ). NUCLEAR R, GUI ATuRY COMMISSION OOCKErl"-!G & SERVICE SECTION OrFiG or TW SE( "' ~T \ RY o* ,S !'JN Post, , , I ) -)6 - &"1 l u,.,iu 0 ~1 I\.) i.r ,-r~ ~VfR.1f7 t5 /10-rf sl Co~t. /

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Secretary December 26, 1989 Attention: Docketing and Service Branch Page 2 Secondly, we agree with the Commission that current technology vis-a-vis an MRS and dry-cask storage can be used as an interim storage capability pending availability of the ultimate repository . Even with the anticipated renewal of the Operating Licenses of existing plants beyond their present 40-year terms, we believe appropriate provisions can be made to accommodate all anticipated spent fuel generation in a safe and timely manner . We believe that the current delays are primarily the result of program management and political problems. Certainly other countries with mature nuclear programs have demonstrated that the technical concerns of spent fuel disposal can be satisfactorily addressed.

We agree with the Commission's Proposed Finding 4 that spent fuel generated in any reactor can be stored on or off-site safely and without significant environmental impact for at least 100 years. There is adequate scientific evidence that 100 years is conservative and that storage for considerably longer periods can be safely accomplished.

Even though the Commission has only the responsibility to review and rule on DOE's license application for a repository or MRS facility, we encourage the Commission to do whatever it can to keep the process moving toward a successful implementation. In its review of the Waste Confidence Decision, the Commission proposes to change the review period from five to ten years because, " ** *predictions of repository availability are best expressed in terms of decades rather than years . " It is our hope that the activities required to license the repository will proceed in an expeditious fashion and therefore the extension of the review period will not be necessary . Yankee is in the forefront of plant license renewal. Spent fuel disposal is not and should not be a technical constraint to plant license renewal.

Very truly yours, D. W. Edwards Director, Industry Affairs DWE/dhm/0864x

Malachy R.. Murphy (fJ ATTORNEY AT LAW Evergreen Plaza Building T~!1E.J! 352-8468 711 Capitol Way, Suite 600 Modi;SNM$ 352-4719 Olympia, Washington 98501 (206) 352-4000 OfF!C£ OF SECRETARY OOCKE i ING ~ SEiNIC(

December 22, 1989 BRANCH Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing and Service Branch Re: Waste Confidence Decision Review and Proposed Revisions to 10 CFR Part 51

Dear Mr. Chilk:

Enclosed please find the State of Nevada's comments on

~ the Commission~s proposed revisions to its Waste Confidence W Decision and 54 FR 39767, and to its proposed revisions to 10 CFR Part 51 (54 FR 39765).

Thank you for your assistance.

Yours very truly,

\~~~-~\\r~~~~

Special Deput;~~ltorney General State of Nevada MRM:jfe Enclosure cc: Bob Loux Steve Frishman Jim Davenport DEC 3 1 198 cknowledged by car *.*

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STATE OF NEVADA'S COMMENTS ON WASTE CONFIDENCE DECISION REVIE.W AND PROPOSED RULE AND CONSIDERATION OF ENVIRONMENTAL IMPACTS OF TEMPORARY STORAGE OF SPENT FUEL AFTER CESSATION OF REACTOR OPERATION The State of Nevada submits these comments on the Commis-sion's review and proposed revision of its Waste Confidence Decision (54 FR 39767 et. seq.), and the accompanying amend-ment to 10 CFR Part 51 (54 FR 39765).

The proposal with respect to the Waste Confidence Deci-sion would revise Findings 2 and 4 of the original decision.

Finding 2 would be revised to find a reasonable assurance that at least one mined geologic repository will be available with-in the first quarter of the twenty-first century and that suf-

"ficient repository capacity will be available within thirty (30) years beyond the licensed life for operation of any reac-tor. Finding 4 would be revised so that the Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least thirty (30) years beyond the licensed life for operation of any reactor. Nevada, al ~

though it supports and endorses the overall approach the pro-posed revision to the Waste Confidence Decision takes, does not think that the revised findings accurately reflect the current state of DOE's Civilian Radioactive Management Pro-gram, nor uncertainty surrounding the Yucca Mountain project, and therefore suggests that the proposal needs further revi-sion.

COMMENTS 1

The proposed Waste Confidence Decision revisions should be revised and republished to reflect the recently released Reassessment Of The Civilian Radioactive Waste Management Pro-gram in which the Department of Energy sets forth a new repos-itory availability date of 2010. Much of the analysis on which the proposed revisions are based is grounded on a lack of confidence in DOE's ability to bring a repository on-line by its earlier target date of 2003, or by 2007-9, which the original decision anticipated. The reasons for this lack of confidence now have been confirmed. More thought should be given to even 2025 as a date the Commission should take much comfort in. That date, taken from the ACNW report, reflects the time necessary to find another site should Yucca Mountain prove unsuitable, which the proposed revision acknowledges could well be the case. If that decision were made late in DOE's new schedule, either by the Department itself or the

- Commission in a licensing proceeding, there may very well be enough time to locate, characterize, license and another site by 2025. Given the history of delays in not construct this program, even that date seems quite optimistic in the event of Yucca Mountain's unsuitability.

With respect to Finding 4, Nevada believes that that pro-posal does not go far enough. The scientific evidence avail-able would support a reasonable assurance that, if necessary, spent fuel can be stored safely and without significant envi-ronmental risks for much longer than thirty (30) years beyond the licensed life for operation of any reactor. The State COMMENTS 2

thus suggests that Finding 4 of the Waste Confidence Decision, as well as 10 CFR §51.23, be amended to reflect reasonable as-surance that spent fuel can be stored safely and without sig-nificant environmental risk in dry casks at reactor sites for up to one hundred (100) years.

Finally, in light of the DOE's reassessment the Commis-sion, in the exercise of its responsibilities to the public and to the nuclear utilities, should come *right out and say that the utilities will need to have interim storage available well into the next century, and that Congress take notice of this inevitable requirement.

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COMMENTS 3

DAVID L. SWANSON, Senior Vice President DOCKET NUMBER PR ~ :a. L EDISON ELECTRIC PROPOSED RU~ J ;. C~CKEiEG IN$ TIT UTE The association of electric com~~Y.s 'f q767) USNRC 111119th Street, NW.

Washington, D.C. 20036-3691 119 CEC 27 P3 :29 Tel: (202) 778-6400 u F"ICE OF SECRETARY DOCK( iWG & srnv1cr:

8RANCH December 22, 1989 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Review and Proposed Revision of Waste Confidence Decision [54 Fed. Reg. 39,767]

and Proposed Rule -- Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation [54 Fed. Reg. 39,765]

Dear Mr. Chilk:

These comments are submitted in response to the above-referenced notices by the Edison Electric Institute (EEi) and Utility Nuclear Waste and Transportation Program (EEI/UWASTE). EEi is the association of the nation's investor-owned electric utilities; its members generate approximately 75 percent of all the electricity in the nation.

EEI/UWASTE is a group of electric utilities with nuclear energy programs that seeks to ensure radioactive waste management and disposal, and nuclear materials transportation systems are developed and maintained in a safe, environmentally sound, publicly acceptable, cost effective, and timely manner. EEI/UWASTE is the lead organization for utility oversight of the Department of Energy (DOE) Civilian High Level Waste Program.

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Mr. Samuel J. Chilk, USNRC December 22, 1989 Page 2 We have been involved in the consideration of the Waste Confidence issue from its inception. In particular, EEi and the Utility Nuclear Waste Management Group (a predecessor of EEI/UWASTE), participated as parties in the original Waste Confidence proceeding. We are pleased to have the opportunity to provide these comments.

STATEMENT OF POSmON We support the adoption of the revised Waste Confidence findings, modification of the periodicity of the Commission's review, and amendments of NRC regulations, all as proposed. The reasoning underlying each of the proposed actions is fundamentally sound and supports the Commission's determinations.

RECENT DEVELOPMENTS Subsequent to the publication of the Commission's proposed revision of its Waste Confidence Decision arid conforming amendment to its regulations, the Secretary of Energy issued his "Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program", DOE/RW-0247 (November 1989). The Secretary's Report presents a schedule showing a delay in the expected start of repository operations from the year 2003 to approximately 2010. [Report, p. vii.] In addition, the Report indicates a delay in the start of Exploratory Shaft Facility construction from the November 1989 date referenced in the Commission's proposed revised Decision [54 Fed. Reg. 39,767 at 39,783], to November 1992 [Report, p. 10, Fig. 1].

The Secretary's Report simply presents a revised schedule based upon a realistic assessment of activity durations and past experience. [Report, p. vii.] Further, the Report specifically notes that, "While the schedule identifies a substantial delay, the DOE remains committed to seeking ways to improve the schedule while satisfying all technical and regulatory requirements" [Report, p. 11]. Nothing in the Report is inconsistent with any of the proposed Waste Confidence findings, including Finding 2, wherein: The Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century..." [54 Fed. Reg. 39,767 at 39,768]. Further, the announcement contained in the Report that DOE will pursue a strategy of developing a Monitored Retrievable Storage facility by 1998 [Report pp. 16-19] provides additional support for Finding 5, wherein: The Commission finds reasonable assurance that safe independent onsite spent fuel. storage or offsite spent fuel storage will be made available if such storage capacity is needed." [54 Fed. Reg. 39,767 at 39,796].

Mr. Samuel J. Chilk, USNRC December 22, 1989 Page 3 Thus, the DOE Report provides a realistic basis upon which the NRC can rely in reaching the conclusions descnbed in the proposed revised Waste Confidence Decision.

EEI/UWASTE appreciate the opportunity to offer these comments in support of the Commission's proposed, revised Waste Confidence Findings and conforming amendments to its regulations.

Sincerely yours, David L. Swanson DLS/chi

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tii1Jesearch Group D Litigation Group December 21, 1989 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch Re: Waste Confidence Decision Review, 10 CFR Part 51

Dear Sir/Madam:

We are writing to comment on the NRC's proposed revision of its "Waste Confidence Decision" as discussed in the Federal Register of September 28, 1989 (54 FR 187:39767-39797).

The NRC's original 1984 Waste Confidence Decision was the result of proceedings initiated to respond to a 1976 petition for rulemaking submitted by the Natural Resources Defense Council (NRDC) and subsequent adjudication in the U.S. Circuit Court of Appeals. The NRDC petition and court adjudication dealt with the issue of whether radioactive wastes generated in nuclear power reactors can be disposed of safely, and raised the question of whether any further licenses should be granted for the operation of nuclear reactors in the absence of a safe disposal method.

According to the NRC, the purpose of the Waste Confidence proceeding was for the NRC to assess "its degree of confidence that radioactive wastes produced by nuclear facilities will be safely disposed of, to determine when any such disposal will be available, and whether such wastes can be stored safely until they are disposed of" (p. 39769).

The NRC Waste Confidence Decision issued in August 31, 1984 (49 FR 34658), which resulted from this proceeding, consisted of five findings:

1) Safe disposal of high-level waste in a geologic repository is technically feasible.

2) At least one such repository will be available by the years 2007-2009, and sufficient repository capacity will be available within 30 years of the expiration of any reactor license to dispose of existing commercial high-level radioactive waste generated up to that time.

3) High-level radioactive waste will be managed in a safe manner until it can be permanently disposed of in a repository.

4) If necessary, spent fuel generated at any reactor can be stored safely for at least thirty years beyond the expiration of that reactor's operating license.

5) Safe independent onsite or offsite spent fuel storage will be made

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December 21, 1989 Page 2 available if such storage capacity is needed.

The NRC now proposes to revise the second and fourth findings of this decision.

With regard to the date of repository availability (finding 2),

the NRC now proposes to find that there is "reasonable assurance that at least one mined geologic repository will be available within the first quarter of the 21st century."

With regard to the period of time which spent fuel can be safely stored at reactor sites (finding 4), NRC still states that spent fuel can be stored safely for thirty years beyond the e xpiration of the plants license, but proposes to add that the licensed life for operation "may include the term of a revised license" -- i.e., a possible additional thirty years.

Public Citizen hereby submits the following comments:

1) Contrary to the first finding, Public Citizen believes that there is not adequate assurance that permanent, safe disposal in a mined geologic repository is technically feasible.

2) Even if such disposal i.§. found to be feasible, the proposed revision to the second finding continues to be unrealistically optimistic because there is reasonable basis to believe that a mined repository may IlQ.t. be available before the end of the first quarter of the 21st century.

3) There is not sufficient assurance that spent fuel can be stored safely at reactor sites for up to thirty years beyond the expiration of the license, especially if reactor licenses are extended.

Each of these three points are dealt with in turn below.

1. There is still not adequate assurance that permanent, safe disposal of high-level radioactive waste in a mined geologic repository is technically feasible.

Although a number of scientific panels have suggested that there is not technical or scientific reason why a repository is not technically feasible, a number of major scientific panels have also pointed out that there is no technical or scientific basis for knowing for sure that it ll possible. 1 For example, President Carter's Office of Science and Technology Policy found in 1979 a "rather general consensus" among scientists that a technology base "sufficient to permit complete confidence in the safety of any particular repositor design or the suitability of any particular site" was still lacking. 2 More recently, a WISP panel of the National Academy of Sciences pointed out many areas of the geologic disposal problem where technical uncertainties exist, and where "more information is needed. 113

December 21, 1989 Page 3 Although these studies were concluded before the 1984 Waste Confidence Decision, there have been no major findings since that time that have resolved the uncertainties to the point at which it is possible to be assured that geologic disposal is technically feasible.

The unfounded (although pervasive and long-standing) attitude that there are no significant technical barriers to the disposal of high-level radioactive waste is precisely the attitude that allowed the nuclear waste problem to be created in the first place. The question arises: if there is no reason why a disposal solution cannot be implemented, and if this really has been true for the 30 years since the National Academy's first major study on high-level waste isolation in 1957, then why is there still no site that is clearly suitable and licensable?

The fact is, the technical difficulties presented by a million-year disposal problem are unprecedented and enormous. The problem is not the inability to dig a hole in the ground and fill it with waste, but rather the inability to predict with a reasonable degree of certainty that, once buried, the waste will remain contained there for the required time period. There are at least four major technical uncertainties with deep geologic disposal that must be confronted:

1) the long term stability of the geologic formation hosting the repository,

2) the long-term stability of the manufactured waste-containers,

3) the interaction of the waste with the host rock over the long term, and

4) the potential for groundwater movement in and through the repository site over the long term.

The key words here are "over the long term." Although mountains and rocks are relatively immobile on the timescale of a human life, the long-term geology of land masses shows evidence of a tortured and dynamic history. Abrupt changes in rock layers are more often the rule than the exception, and are caused by continental uplift and subsidence, earthquakes, volcanoes, ice glaciers moving over the land, erosion, and other phenomena.

Although it may be that these problems can be addressed and that a suitable site found that will be able to meet the EPA standards and NRC licensing requirements, it is by no means technically assured that this will be the case.

The only radioactive waste repository in the U.S. -- intended for transuranic military wastes -- illustrates once again how difficult the problems of geologic disposal really are. Scheduled to open in the fall of 1988, this repository, the Waste Isolation Pilot Plant located in the salt beds near Carlsbad, New Mexico, has not opened because of numerous unanticipated difficulties, including the leakage of salt

December 21, 1989 Page 4 water into the site. This leakage, which was not anticipated prior to the beginning of repository construction in the early 1980s, 4 shows that even on a scale of a few years, geologic events in a repository are unpredictable -- to say nothing of events on the timescale of hundreds of thousands of years.

2, Even if geologic disposal is found to be technically feasible, there is a strong possibility, given the history of the current program. that a repository will not be available for operation until after the first quarter of the 21st century.

Government efforts to open a repository for permanent disposal of this waste have consistently failed to meet projected deadlines, and the prospect of a solution to the high-level waste disposal problem continues to recede into the future. Table 1, below, shows how government timetables for the availability of a high-level waste repository have changed during the past 12 years. This table shows that in 12 years, government estimates of the date of repository availability have been postponed 25 years. Thus, the U.S. is further away today from a nuclear waste solution than it was 12 years ago, belying NRC assurances about when a repository will be available.

TABLE 1 --

RECENT HISTORY OF HIGH-LEVEL WASTE REPOSITORY TARGET DATE&

Year of Estimate Estimated Repository Availability 1977 1985 1980 early 1990's 1982 1998 1988 2003 1989 2010 The latest revision to 2010 already makes NRC's proposed revision out of date even before its comment period has expired. And the 2010 date is still, according to DOE, an optimistic assessment of repository availability. Thus, it does not seem at all implausible that, even if Yucca Mountain itself were found entirely suitable, it may not be available until 2025 or later.

Yet the NRC does not assume that Yucca Mountain will be the site chosen. In making its statement that repository will be available by 2025, NRC stated that "for the sake of conservatism," it would assume "that Yucca Mountain would not be found suitable for repository development," and that another site would have to be selected, characterized, and built (p. 39779).

However, this is far from a conservative estimate. Deputy Secretary of Energy Henson Moore recently remarked that Yucca Mountain,

December 21, 1989 Page 5 if proven acceptable, "will be a first-of-a-kind licensed, permanent repository. Nobody has ever sited, or licensed, or constructed one before ... We will be pushing science, engineering and the regulatory process beyond the present boundaries of experience." (emphasis in original)

Given the unprecedented nature of high-level waste repository development it is not conservative to assume that if the first site examined is unsuitable, then the second one will be. Although it is certainly possible that the first or second site examined might be suitable, it is also not at all unreasonable to expect that a suitable site might not be found until the fourth or fifth try -- if then.

Assuming, as does NRC with the Yucca Mountain case, that it will take approximately 10 years to characterize a candidate site adequately (and 15 subsequent years before the suitable candidate goes into operation),

and that, conservatively, the fifth site is the first one found suitable, then there is no reasonable assurance that a site will be available before 2055.

3, There is not adequate assurance that spent fuel will be stored safely at reactor sites for up to thirty years beyond the expiration of the license, This is even more the case if license extensions of up to thirty years are included.

The NRC policy statement fails to recognize that spent fuel build-up at reactor sites poses a growing safety hazard. The pools are not well protected from the environment (in many cases they are outside the reactor's containment structure), and have leaked in the past. For example, in December 1986 at the Hatch nuclear power plant in Baxley, Georgia, 141,000 gallons of radioactive water leaked out of the plant's fuel pool. 6 More than 80,000 gallons of the water drained into a swamp and from there into the Altamaha River near the plant.

More recently, on August 16, 1988, a seal on a fuel pool pump failed at the Turkey Point nuclear plant near Miami, FL, causing some 3,000 gallons of radioactive water to leak into a nearby storm sewer.

The shoes and clothing of approximately 15 workers were contaminated. 7 Although these accidents are cause for concern, a far greater danger would be posed by an accident in which enough pool water escaped to uncover the irradiated fuel assemblies. Because the fuel pools often contain many core-loads of irradiated fuel, they potentially contain more radioactivity than the reactor vessel itself. If a leak or pump failure caused the water level in a spent fuel pool to drop to a level which exposed the fuel assemblies, the remaining water might be insufficient to provide adequate cooling. The pool water could then heat to the boiling point, producing steam and causing more water to boil away. The danger then is that heat could continue to build even further until the cladding which encloses the irradiated fuel pellets catches fire.

December 21, 1989 Page 6 The NRC itself, in the time since the first waste confidence decision, has studied the issue of storage in re-racked spent fuel pools and concluded in a 1987 report that the consequences of such a cladding fire could be "significant" radiation release . 8 The NRC report found:

(1) the natural air flow permitted by high-density storage racks is so restricted that potential for self-sustaining cladding fire exists; and (2) with high-density racks providing 'severely restricted air flow,'

the oxidation (burning) would be 'very vigorous' and 'failure of both the fuel rods and the fuel rod racks is expected.'

Nowhere in the proposed waste confidence revision does t h e NRC take into account the findings of this report, which should have been included in the section entitled "4.B. Relevant Issues that Have Arisen Since the Commission's Original Decision on Finding 4." (p. 39795)

The use of dry cask storage for spent fuel would he l p address this concern. Although NRC is now allowing the use of dry cask storage at reactor sites, the NRC currently has no plans to reguire dry cask storage instead of storage in the more dangerous spent fuel pools.

Indeed, the proposed waste confidence finding states explicitly that a reactor's "spent fuel storage basin" is considered safe.

In sum, then, Public Citizen believes that there is not adequate assurance that permanent disposal of high-level radioact i ve waste in a geologic repository is technically assured; that even if it were found to be technically feasible, there is no assurance that such a repository would be available by 2025; and that barring a wholesale switch from spent fuel pools to dry cask storage, there is not adequate assurance that spent fuel can be stored safely at reactor sites for up to thirty years beyond the expiration of the license.

Thank you for the opportunity to comment.

Sincerely,  ; L. /

Ju}{;{;--~~ 1 Scott Saleska Nuclear Waste Policy Analyst Critical Mass Energy Project of Public Citizen Public Citizen is a non-profit research and advocacy organization founded by Ralph Nader in 1971 to address a wide range of consumer and environmental issues. The Critical Mass Energy Project is the energy policy arm of Public Citizen.

December 21, 1989 Page 7 NOTES

1. See, for example, U.S. Environmental Protection Agency, Ad Hoc Panel of Earth Scientists, State of Geological Knowledge Regarding Potential Transport of High-Level Radioactive Waste from Deep Continental Repositories (1978), EPA, Office of Radiation Programs, Washington, DC.

Also, see Interagency Review Group on Nuclear Waste Management, Report to the President, TID-2944Z (March, 1979), Department of Energy, Washington, DC.

2. Office of Science and Technology Policy, working paper for the Interagency Nuclear Waste Management Task Force (May 9, 1979).

3. See National Academy of Sciences, Waste Isolation Systems Panel, A Study of the Isolation System for Geologic Disposal of Radioactive Waste, p. 7 (1983). Some examples of uncertainties pointed out are:

"the effects of uncertainties in waste package performance ... are important. Therefore, additional study needs to be undertaken ... " (p.

6) *

"There is need for additional information on the performance of waste in borosilicate glass ... " (p. 7).

"More information is needed concerning the expected performance of a solid backfill surrounding the high-level waste ... " (p. 7).

"Further studies are required to evaluate the synergistic and possibly antagonistic interactions among waste form, waste package, and backfill materials." (pp. 6-7)

"Since these design temperatures are much higher than the temperatures used in most of the laboratory studies of waste-form dissolution, there is need for waste-package release studies at higher temperatures." (p. 7)

"There appear to be large uncertainties in the calculation of radiation doses that could result from the use of contaminated groundwater *.. " (p. 11).

4. U.S. Department of Energy, Draft Supplement Environmental Impact Statement, waste Isolation Pilot Plant (DOE/EIS-0026-DS), p. 4-14 (Apr.

1989), U.S. DOE, Washington, DC 20585. The DOE's Final Environmental Impact Statement on WIPP, issued in 1980 prior to primary construction, assumed that the disposed waste would remain dry.

5. The 1985 target date was part of the new DOE's 1977 spent fuel policy, described in DOE's Report of the Task Force for Review of Nuclear Waste Management, Appendix F, pp. 60-72.

The early 1990's target date was part of the report of the Interagency Review Group on Nuclear Waste Management [Interagency Review Group, Report to the President, TID-2944Z (Mar. 1979), U.S. Department of Energy, Washington, DC] which was essentially endorsed by President Jimmy Carter's Nuclear Waste Policy Statement of February 12, 1980.

December 21, 1989 Page 8 The target date of 1998 for the nation's first high-level waste repository was set in the Nuclear Waste Policy Act of 1982, Public Law 97-425.

The 1998 target date was slipped to 2003 in 1988 by the DOE, as stated in U.S. Department of Energy, Draft 1988 Mission Plan Amendment (DOE/RW-0187), p. 1 (June 1988).

The 2010 target date was set in late 1989 by the DOE, Report to Congress on Reassessment of the Civilian Radioactive Waste Management Program (DOE/RW-0247) (Nov. 1989).

6. U.S. Nuclear Regulatory Commission, PNO II-86-090. See also Nucleonics week, pp. 3-4 (Dec. 11, 1986).

7. "Radioactive Water Leaks as A-Plant Pump Fails," Washington Post (Aug. 1 7, 19 8 8) .

8. U.S. Nuclear Regulatory Commission, Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82, NUREG/CR-4982 (July 1987).

I I Electric Center P0.Box33/89 DOCKET NUMBffi Duke ~ower Company PROPOSED RULE

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'89 0EC 26 Pl2 :19 DUKEPOWER December 21, 1989 Mr. Samuel Chilk, Secretary U. S. Nuclear Regulatory Conunission Washington, DC 20555 Attention: Docketing and Service Branch

Subject:

Waste Confidence: Review and proposed revision of waste confidence decision (10 CFR 51)

Reference:

54 Fed. Reg. 39,767 (September 28, 1989)

Dear Mr. Chilk:

This letter is to convey Duke Power Company's support of the Conunission's proposed reaffirmation, as referenced above, of confidence in the safety and ultimate availability of an off-site disposal facility for spent fuel gene-rated by civilian nuclear power plants, and the safety of storage of such fuel on-site until such a disposal facility is available.

Specifically, we have reviewed the bases on which the Commission proposes to reaffirm, and in some respect to revise, its 1984 finding, and find them appropriate and supportable. In light of the most recent repository schedule published by DOE, extended in large part by the need to ensure proper quality assurance standards and to resolve institutional issues surrounding access to the Yucca Mountain site, we believe the Commission's proposal to revise the Waste Confidence rule to call for a 10-year review cycle is particularly appropriate.

Duke Power appreciates the opportunity to comment on the proposed rule.

Should you have questions, please contact Greg Snipes at (704) 373-8704.

Very truly yours, 1t.1i!-

RGS:dyh d y cc: T. F. Wyke K. S. Canady R. W. Rasmussen D. Mendezoff S. P. Kraft (EEI-UWASTE)

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NUCLEAR REGULATORY "89 SEP 26 P3 :28 COMMISSION 10 CFR Part 51 Waste Confidence Decision Review AGENCY: Nuclear Regulatory ColTITlission ACTION: Review and Proposed Revision of Waste Confidence Decision e

SUMMARY

On August 31, 1984, the Nuclear Regulatory ColTITlission (NRCJ issued a final decision on what has come to be known as its "Waste Confidence Proceeding."

The purpose of that proceeding was 11 * *

• to assess generically the degree of assurance now available that radioactive waste can be safely disposea of, to determine when such disposal or offsite storage will be available and to determine whether radioactive waste can be safely stored onsite past the expiration of existing facility licenses until offsite disposal or storage is available." (49 FR 34658). The purpose of this notice is to present for public co1T111ent theproposed findings of a ColTITlission review of that Decision.

The Commission noted in 1984 that its Waste Confidence Decision was unavoiddbly in the nature of a prediction, and convnitted to review its conclusions

" *.* should significant and pertinent unexpected events occur or at least every five years

• until a. r:"l.iJ OS ~-tory is available."

1he Commission has reviewed its five findings and the rationale for them in light of developments since 1984. This proposed revised waste Confidence Decision supplements those 1984 findings and the environmental analysis supporting them. The Commission proposes that the second and fourth findings in the Waste Confidence Decision be revised as follows:

Finding 2: The Commission finds reasonable assurance that at least one mined geologic repository will be available with in the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the conmercial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time.

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

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The Commission proposes to reaffirm the remaining findings. Each finding, any proposed revisions, and the reasons for revising or reaffirming them are set forth in the body of the review below.

The Commission also issued two companion rulemaking amendments at the time it issued the 1984 Waste Confidence Decision. The Commission's reactor licensing rule, 10 CFR Part 50, was amended to require each licensed reactor operator to submit, no later than five years before expiration of the operating license, plans for managing spent fuel at the reactor site until the spent fuel is transferred to the Department of Energy (DOE) for disposal under the Nuclear Waste Policy Act of 1982 (NWPA). 10 CFR Part 51, the rule definin9 NRC's responsibilities under the National Environmental Policy Act (NEPA), was amended to provide that, in connection with the issuance or amendment of a reactor operating license or initial license for an independent spent fuel storage installation, no discussion of any environmental impact of spent fuel storage is required for the period following expiration of the license or amendment applied for.

In keeping with the proposed revis~d Findings 2 and 4, the Commission is providing elsewhere in this issue of the Federal Register proposed conforming amendments to its 10 CFR Part 51 rule providing procedures for considering in licensing proceedings the environmental effects of extended onsite storage of spent fuel .

Finally, the Commission proposes to extend the cycle of its Waste Confidence reviews from every five years to every ten until a repository becomes available * . In its 1984 Decision, the Corrmission said that because its conclusions were " *** unavoidably in the nature of a prediction," it would review them " *** should significant and unexpected events occur, or at least every five years until a repository **

• is available." As noted be low, the Commission now believes that predictions of repository ava il abil ity are best expressed in ter~s of decades rather than years. To specify a year for the expected availability of a repository decades hence would misleadingly imply a degree of precision new unattainable. Accordingly, the Commission proposes to change its original commitment in order to review its Waste Confiden ce Decision at least every ten years. This would not, however, disturb the Commission ' s original commitment t o review its Decision whenever significant and pertinen t unexpected events occur. 15510

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consideration cannot be given except to comments received on or before this date. J~ .* :* ;* I ~;-'i lies ADD..R6~S.E&S: ~ Ma il wrtt~1/4 omments to: Secretary, U.S. Nuclear Regulatory C.:ommi.ssi on., Washington,] o.c. 205.55, Attention : Docketing and Serv ice Branch .

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Spec ia 1 l), <' ~. : to n f.DP JJ)S

The Commission proposes to reaffirm the remaining findings. Each finding, any proposed revisions, and the r~asons for revising or reaffirming them are set forth in the body of the review below.

The Commission also issued two companion rulemaking amendments at the time it issued the 1984 Waste Confidence Decision. The Commission's reactor licensing rule, 10 CFR Part 50, was amended to require each licensed reactor operator to submit, no later than five years before expiration of the operating license, plans for managing spent fuel at the reactor site until the spent fuel is transferred to the Department of Energy (DOE) for disposal under the Nuclear Waste Policy Act of 1982 (NWPA). 10 CFR Part 51, the rule defining NRC's responsibilities under the National Environmental Policy Act (NEPA), was amended to provide that, in connection with tht issuance or amendment of a reactor operating license or initial license for an independent spent fuel storage installation, no discussion of any environmental impact of spent fuel storage is required for the period following expiration of the license or amendment applied for.

In keeping with the proposed revis~d Findings 2 and 4, the CoDlllission is providing elsewhere in this issue of the Federal Register proposed conforming amendments to its 10 CFR Part 51 rule providing procedures for considering in licensing proceedings the environmental effects of extended onsite storage of spent fuel.

Finally, the Commission proposes to extend the cycle of its Waste Confidence reviews from every five years to every ten until a repository becomes available *. In its 1984 Decision, the ColTlllission said that because its conclusions were " *** unavoidably in the nature of a prediction," it would review them " *** should significant and unexpected events occur, or at least every five years until a repository *** is available." As noted b~low, the Commission now believes that predictions of repository availability are best expressed in terms of decades rather than years. To specify a year for the expected availability of a repository decades hence would misleadingly imply a degree of precision now unattainable. Accordingly, the Commission proposes to change its original commitment in order to review its Waste Confidence De~ision at least every ten years. This would not, however, disturb the Commission 1 s original commitment to review its Decision whenever significant and pertinent unexpected events occur.

DATE: The comment period expires[~o~) 1989. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except to comments received on or before this date

• ADDRESSEES: Mail written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 Attention: Docketing and Ser-vice Branch.

9 Deliver comments to One White Flint Uorth, 11555 Rockville Pikf, Rockville, MD between 7:30 a.m. and 4:15 p.m. weekdays.

f FOR FURTHER INFORMATION CONTACT: Rob MacDouga 11, Office of Nuclear Materia 1 Safety and Safeguards, U.S. Nuclear ~egulatory Commission, Washington, D.C.

20555, telephone (202)492-3401; or John Roberts, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, D.C.

i0555, telephone (202)492-0608.

SUPPLEMENTARY INFORMATION:

Background

In November 1976, the Natural Resources Defense Council (NRDC) petitioned NRC for a rulemaking to determine whether radioactive wastes generated in nuclear power reactors can be subsequently disposed of without undue risk to the public health and safety. The NRDC also requested that NRC not grant pending or future requests for operating licenses until the petitioned finding of safety was made.

0~ June 27, 1977, NRC denied the NRDC petition. The Commission said that in i~suing operating licenses, NRC must have assurance that wastes can be safely handled and stored as they are generated. It also said that it is not necessary for permanent disposal to be available if NRC could be confident that permanent disposal could be accomplished when necessary. NRC added that Congress was aware of the relationship between nuclear reactor operations and the radioactive waste disposal problem, and that NRC would not refrain from issuing reactor operating licenses until the disposal problem was resolved.

ThE; Commission also stated that it " *** would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely."

Also in November 1976, two utility companies requested amendments to their operating licenses to permit expansion in the capacity of their spent nuclear fuel storage pools: Vermont Yankee Nuclear Power Corporation for the Vermont Yankee plant; and Northern States Power Company for its Prairie Island facility. In both cases, the utilities planned to increase storage capacity through closer spacing of spent fuel assemblies in existing spent fuel pools.

The New England Coalition on Nuclear Power and the Minnesota Pollution Control Agency intervened. TheNRC staff evaluated the requests and found that the modifications would not endanger public health and safety. The staff did not consider any potential environmental effects of storage of spent fuel at the reactors beyond the dates of expiration of their operating licenses. NRC's Atomic Safety and Licensing Board Panel (ASLBP) adopted the staff's safety and environmental findings and approved the license amendments for the two plants.

It too did not consider the effects of at-reactor storage beyond the expiration of "the facility operating license.

The Board's decision was appealed to the Atomic Safety and Licensing Appeal Board (ASLAB). The ASLAB affirmed the Licensing Board's decision, citing the Commission's " *** reasonable confidence that wastes can and will in due course be disposed of safely ..** " in the Commission's denial of the NRDC petition.

The decision of the ASLAB was appealed to the U.S. Circuit Court of Appeals.

On May 23, 1979 the Court declined to stay or vacate the license amendments~

but remanded to NRC the question of " *** whether there is reasonable assurance that an offsite storage solution wilJ be available by the years 2007~2009i the expiration of the plants' operating licenses, and if not, wh~ther there is reasonable assurance that the fuel can be safely stored at the reactor sites beyond those<dates. 11 In its decision to remand to NRC, for consideration in either a generic rulemaking or an adjudicatory proceeding, the Court observed that the issues of storage and disposal of nuclear waste were being considered by the Commission in an ongoing generic proceedir1g known as the S-3 11 Proceeding" on the environmental impa_cts of uranium fuel cycle activities to support the operation of a light water reactor, and that it was appropriate to remand in light of a pending decision on that proceeding and analysis.

On October 18, 1979, NRC announced that it was initiating a rulemaking proceeding in response to the Appeals tourt remand and as a continuation of the NRDC proceeding. Specifically, the purpose of the proceeding was for the Commission 11 * *

• to reassess its degree of confidence that radioactive wastes produced by nuclear facilities will be safely disposed of, to determine when any such disposal will be avaiiable, and whether such wastes can be safely stored until they ar_e disposed of. 11 The Commission recognized that the scope of this proceeding would be broader than the Court 1 s instruction, which required the Commission to address only storage-related questions. The Commission believed, however 1 that the primary public concern was the safety at waste disposal rather than the ava ilabn ity of an off-site solution to the storage problem. The Co1T111ission also committed itself to reassess its basis for confidence that methods of safe permanent disposal for high-level waste would be available when needeci. Thusj) the Commission chose as a matter of policy not tc confine itself exclusively to the narrower issues in the court remand.

In the Notice of Proposed Rulemaking, the Colllllission also stated that if the proceeding led to a finding that safe off-site storage or disposal would be available before expiration of facility operating licenses, NRC would promulgate a rule providing that the impact of onsite storage of spent fuel after expiration of facility operating licenses need not be considered in individual licensing proceedings.

The Waste Confidence Decision was issued on August 31, 1984 (49 FR 34658). In the Decision, the Commission made five findings. It found reasonable assurar,ce that:

(1) Safe disposal of high-level radioactive waste and spent fuel in a

~ mined geologic repository is technically feasible.

(2) One or more mined geologic repositories for commercial high-level radioactive waste and spent fuel will be available by the years 2007-2009, and sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing

J commercial high-level radioactive waste and spent fue1 originating in such reactor and generated up to that time.

(3) High-level radioactive waste and spent fuel will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all high-level radioactive waste and spent fuel.

l4) If necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations.

(5} Safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed.

On the day the Decision was issued, the Commission also promulgated two rulemaking amendments: (1) an amendment to 10 CFR Part 50, which required that no later than five years before expiration of reactor operating licenses, the li~ensee must provide NRC with a written plan for management of spent fuel onsite, until title for the spent fuel is transferred to the DOE; and (2) an amendment to 10 CFR Part 51 which provided that environmental consequences of spent fuel storage after expiration of facility licenses need not be addressed ir. connection with is_suance of or amendment to a reactor operating license.

In issuing the Part 51 amendment, the Commission stated that although it had reasonab1e assurance that one or more repositories would be available by 2007-2009, *it was possible that some spent fuel would have to be stored beyond those dates. The Part 51 amendment was based on the Commission's finding in the Waste Confidence Proceeding that it had reasonable assurance that no significant environmental impacts will result from storage of spent fuel for at least 30 years beyond expiration of reactor operating licenses.

Enactment of the NWPA contributed significantly to the basis for the Collimission's 1984 Decision and companion rulemakings. The Act estab1ished a funding source and µ,rocess with milestones and schedules for, among other things, the development of a monitored retrievable storage (MRS) facility and two repositories, one by early 1998 and a second, if authorized by Congress, at a later date, initially planned by DOE for 2006. For each repository, the Act required DOE to conduct in-situ investigations of three sites and recommend one from among them to the President and Congress for repository development. The NWPA also required DOE to recommend, from among alternative sites and designs, a site and design for an MRS for spent fuel and high-level waste management bef.ore disposal.. The Commission's licensing and regulatory authority ov~r both storage and disposal facilities was preserved by the Act.

In the four years after enactment of the NWPA, DOE met a number of the Act's early program requirements, but also encountered significant difficulties. It published a final Mission Plan for the overall NWPA program, and followed with a Project Decision Schedule for DOE and other Federal agency actions. It

promulgated, with Commission concurrence, a set of guidelines for repository siting and development. It publisheQ draft and final environmental assessments for nine candidate repository sites, and recommended three for characterization~ It completed and submitted to Congress an environmental assessment, a program plan, and a proposal with a site and design for an MRS.

All these actions followed extensive interactions with interested Federal agencies, State, Indian tribal, and local governments, and other organizations.

In the course of these activities, however, DOE also slipped its schedule for operation of the first repository by five years, indefinitely postponed eftorts toward a second repository, and had to halt further MRS siting and development activities pending Congressional authorization.

In December, 1987, Congress enacted the Nuclear Waste Policy Amendments Act lNWPAA). The NWPAA redirected the high-level waste program by suspending site characterization activities for the first repository at sites other than the Yucca Mountain site, and by suspending all site-specific activities with respect to a second repository. The Amendments Act also authorized and set schedule and capacity limits on the MRS. The purpose of these limitations~

according to sponsors of the legislation, was to assure that an MRS would not become a substitute for a geologic repository.

Consistent with its commitment to revisit its Waste Confidence conclusions at least every five years, the Commission has* undertaken the current review to assess the effect of these and other developments since 1984 on the basis for each of its five findings. In this document, the Commission supplements the basis for its earlier fin~ings and the environmental analysis of the 1984 Decision*. *The Commission proposes to amend its second finding, concerning the timing of initial availability and sufficient capacity of a repository, and its fourth finding, concerning the duration of safe spent fuel storage. These proposed revisions are based on the following considerations:

lJ the five-year slippage, from 1998 to 2003, in the DOE schedule for repository availability;

2) the additional slip of at least 18 months since January 1987 in the DOE schedule for the next step in the repository program, the excavation of the exploratory shaft;

3) the need to continue accounting for tne possibility that the Yucca Mountain site might be found unsuitable and that DOE would have to initiate efforts to identify and characterize another site for the first repository;

4) the statutory suspension of site-specific activities for the second re~ository;

(

5) DOE's estimate that site screening for a second repository should start about 25 years b~fore the start of waste acceptance; and

6) increased confidence in the safety of extended spent fuel storage, either at the reactor or at independent spent fuel storage installations.

The Commission is also proposing elsewhere in this issue of the Federal Register that 10 CFR Subsection 51.23(aJ be amended to conform with the proposed revisions to Findings 2 and-4.

Organization and Table of Contents In conducting this review, the Commission has addressed~ for each of its 1984

~indings, two categories of issues *. The first category consists of the issues the Commission considered in making each Finding at the time of the initial Waste Confidence Decision. For these issues, the Commission is interested in whether its conclusions, or the Finding these conclusions support, should be changed to address new or foreseeable developments that have arisen since the first Waste Confidence Decision. The second category of issues consists of those the Commission believes should be added to the 1984 issues in light of subsequent developments. (To enable the reader to follow more easilyi the lengthy discussions of Findings 1 and 2 have been organized to address each original and new issue under subheadings.) The Commission seeks comment on whether it has identified all the issues relevant to its proposed findings, and 9 on whether its analyses of these issues supports the conclusions ano findings proposed.

Table of Contents I. First Commission Finding A. Issues Considered in Commission's 1984 Decision on Finding 1.

1. Identification of acceptable sites

2. Development of effective was*te packages (a) considerations in developing waste package (b) effect of reprocessing on waste form and waste package

. 3. Development of effective engineered barriers for isolating wastes from the biosphere (a) backfill materials (b) borehole and shaft sealants B. Relevant Issues That Have Arisen since the Commission 1 s Original Decision on Finding 1

1. Termination of Multiple Site Characterization

2. Relevance to NRC's "S-3 Table" proceeding

3. International developments in spent fuel disposal technology C. Conclusion on Finding l II. Second Commission Finding

~ A. Issues Considered in Commission's 1984 Decision on Finding 2 lo Technical uncertainties

{a) finding technically acceptable sites in a timely fashion (b) timely development of waste packages and engineered barriers

2. Institutional uncertainties

{a) measures for dealing with Federal-State-local concerns (b) continuity of the management of the waste program (c) continued funding of the nuclear waste management program (d) DOE's schedule for repository development B. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 2

1. Potential delay under the program of single site characterization

2. Potential limitations on timing of availability of disposal capacity .

(aJ impact of possible limited disposal capacity at Yucca Mountain, indefinite suspension of second repository program (b) impact of uncertainty in spent fuel projections on need to consider second repository program

3. Impact of slippages in DOE program on availability of a repository when needed for health and safety reasons

4. Effect of NRC emphasis on completeness and quality C. Conc1usion on Finding 2

• i III. Third Commission Finding A. Issues Considered in Commission's 1984 Decision on Finding 3:

Licensee compliance with NRC regulations and license conditions; Safe management of spent fuel past expiration of operating licenses; Availability of DOE interim storage

8. Relevant Issues That Have Arisen since the Co1m1ission 1 s Original Decision on Finding 3:

Responsibility for spent fuel storage beyond 1998; Delay in second repository; Potential for license renewals IV. Fourth Con~ission Finding A. Issues Considered in Commission's 1984 Decision on Finding 4:

Long-term integrity of spent fuel under water pool storage conditions; Structure and component safety for extended facility operation for storage; Safety of dry storage of spent fuel; Potential risks of accidents and acts of sabotage of spent fuel storage facilities

8. Relevant Issues That Have Arisen since the Commission's Original Decision on Finding 4:

Radiological and non-radiological consequences of extended spent fuel storage; .

Potential delay in first repository, license renewals, delay in second repository; En~ironmental assessment and finding of no significant impact of at-reactor storage beyond 30 years after reactor's licensed life t*or operation

v. Fifth Commission Finding A. Issues Considered in Commission 1 s 1984 Decision on Finding 5:

Adequacy of NWPA for determining responsibility for timely spent fuel storage; Spent fuel discharge projections; Industry commitment to implement away-from-reactor storage B. Relevant Issues That Have Arisen since the Conmissior.'s Original Decision on Finding 5:

Responsibility for spent fuel storage beyond 1998; Advances in technology for dry storage; Benefits of monitored retrievable storage facility under NWPAA; License renewals; Options for offsite storage under NWPAA

uriginal Findin~ 1: The Commission finds reasonable assurance that safe disposal of hig-level radioactive wa.ste and spent fuel in a mined geologic repository is technically feasible.

Proposed Finding 1: Same as above 1.A. Issues Considered in Commission's 1984 Decision on Finding 1 1.A.1. The identification of acceptable sites Under the Nuclear Waste Policy Act of 1982 (NWPA), the Department of Energy (DOE) had responsibility for identifying candidate sites for a geologic repository and for repository development. The first requirement leading to recommendation of candidate sites was formal notification of States with one or more potentially acceptable sites for a repository within 90 days of enactment of the NWPA. In February 1983 the DOE identified nine potentially acceptable 5

sit~s for the first repository. Four of the sites were in bedded-salt fo'~mations, three were in salt domes, one in volcanic tuff, and one in basalt.

lhe NWPA required that each site nomination be accompanied by an environmental assessment {EA). In December 1984, DOE published Draft EAs (DEAs) for each cf the nine sites identified as potentially acceptable and proposed the following sites for nomination:. the reference repository location at Hanford, ~JA; Yucca Mountain, NV; De:af Smith County, TX; Davis Canyon, UT; and Richton Dome, MS.

In May 1986, DOE released Final EAs (FEAs) for the five sites nominated. At that time,.DOE recommended that the Yucca Mountain, Hanford, and Deaf Smith County sites undergo site characterization. The President approved the recommendation.

The NRC staff provided extensive comments on both the DEAs and the FEAs. NRC concerns on the FEAs related primarily to DOE 1 s failure to recognize uncertainty inherent in the existing limited data bases for the r~commended sitess and the tendency of DOE to present overly favorable or optimistic conclusions. The primary intent of the comments was to assist DOE in preparing high-quality Site Characterization Plans (SCPs) for each site, as required under the NWPA, before excavation of exploratory shafts. NRC concerns can only be addressed adequately through the site characterization process, because one of the purposes of this process is to develop the data to evaluate the significance of concerns relative to site suitability.

NRC did not identify any fundamental technical flaw or disqualifying factor which it believed wot.i"ld render any of the sites unsuitable for ch~racterization. Further, NRC did not take a position on the ranking of the sites in order of preference, because this could be viewtd as a prejudgment of licensing issues. NRC was not aware of any reason that would indicate that any of the candidate sitts was unlicenseable. Nor has NRC made any such fir.ding to date with respect to any site identified as potentially acceptable.

In March 1987, Congress began drafting legislation to amend the repository program. NRC provided comments on a number of th~se draft amendments. In

December 1987, the NWPAA was enacted. In a major departure from th~ initial 1ntent of the NWPA, the new law required that DOE suspend site characterization activities at sites other than the Yucca Mountain site. This decision was not based on a technical evaluation of the three recommended sites or a conclusion that the Hanford and Deaf Smith sites were not technically acceptable.

According to sponsors of the legislation, the principal purpose of the requirement to suspend characterization at these sites was to reduce costs. In effect, the NWPAA directed DOE to characterize candidate sites sequentially, if necessary, rather than simultaneously. If DOE determines at any time that the Yucca Mountain site is unsuitable, DOE is to terminate all site characterization activities and report to Congress its recommendations for further actions.

The NRC staff has identified numerous issues regarding the Yucca Mountain site that may have a bearing on the licenseability of that site. These issues will have to be resolved during site characterization. An example of a site issue that may bear on the question of suitability is tectonic activity, the folding or faulting of the earth s crust. In the 1984 Waste Confidence Decisioni NRC 1

noted that 11 * *

• the potential sites being investigated by DOE are in regions of relative tectonic stability. 11 The authority for this statement came from the Position Statement of the US Geological Survey (USGS). NRC has raised concerns regarding tectonic activity at the Yucca Mountain site in the comments on the draft and final EAsi and in the draft and final Point Papers on the Consultation Draft Site Characterization Plan. If it appears during site characterization that the Yucca Mountain site will be unable to meet NRC requirements regarding isolatior. of waste, DOE will have to suspend characteri~ation at that site and report to Congress.

DUE's program of site screening in different geologic media was consistent with Section 112(a) of the NWPA, which required that UOE recommend sites in different geologic media to the extent practicable. This strategy wa5 to ensure that if any one site were found unsuitable for reasons that would render other sites in the same geologic medium unacceptable, alternate sites in different host rock types would be avaiiable. NRC referred to this policy in its 1984 Waste Confidence Decision, when it said, in support of its argument on technical feasibility, that 11 * *

• DOE's program is providing information on site characteristics at a sufficiently large number and variety of sites and geologic meoia to support the expectation that one or more technically acceptable sites will be identified."

NRC recognizes that simultaneous site characterization is not necessary to identify a repository site that would meet NRC 0 s technical criteria for isolating wastes. Sequential site characterization does not necessarily preclude or hinder identification of an acceptable site for a repository. NRC did express concern to Congress, on several occasions during deliberations over the proposed legislation, that sequential site characterization could delay considerably the schedule for opening a repository if the site undergoing characterization were found to be unlicenseable. NRC also indicated that this potential for delay would have to be considered by NRC in reevaluating the

findings in its Waste Confidence Decision. The impact of this redirection of the high-level waste program on the Commission's Waste Confidence findings is not on the ability to identify techntcally acceptable sites, but on the timing of availability of techn1cally acceptable sites. Because characterization of multiple sites appears to be more directly related to the timing of* repository availability than to the feasibility of geologic disposal, consideration of the above statement in light of the NWPAA program redirection will be discussed under Finding 2.

Another question bearing on whether technically acceptable sites can be found is whether compliance with Environmental Protection Agency (EPA) environmental standards for disposal of spent fuel and high-level waste can be demonstrated.

These standards, originally promulgated in f1nal form in September 1985, were vacated in July, 1987, by the U.S. Court of Appeals, and remanded to EPA for further consideration (see NRDC v. EPA, 824 F. 2d 1258). As originally promulgated, the standards set limits on releases of radioactive materials from the site into the accessible environment over a 10,000-year period following dt.sposal. They also required that there be less than one chance in ten that the release limits wi 11 be exceeded in 10,000 years, and less than one chance in 1,000 that releases will exceed ten times*the limits over 10,000 years.

In, past comments on draft and proposed EPA standards, and in related NRC rulemaking efforts, NRC has expressed concern that probabilistic analyses should not be exclusively relied on to demonstrate compliance with EPA release limits. NRC's comments said in part that 11

• • • [t]he numerical probabilities in Lthe standards] would require a degree of precision which is unlikely to be achievab*le* in evaluating a real waste disposal system. The comments went on 11 to explain that 11

• • • identification of the relevant processes and events affecting a particular site will require considerable judgment and will not be amenable to accurate quantification, by statistical analysis, of their probability of occurrence.". NRC believed then, and continues to believe, that it must make qualitative judgments about the data and methodologies on which the numerical probabilities were based.

In response to NRC concerns, EPA incorporated language into its 1985 standards that appear~d to allow flexibility to combine qualitative judgments with numerical probability estimates in a way that might have made implementation of the EPA standards practicable. The text of those standards recognized that "proof of the future performance of a disposal system is not to be had in the ordinary sense of the word" with the substantial uncertainties and very long performance period involved. The 1985 standards emphasized that a "reasonable expectation 11 - - rather than absolute proof -- is to be the test of compliance.

"What is required," the text of the standards said, is a reasonable 11 exp-ectation, on the basis of the record *** , that compliance *.* will be achieved." In an additional attempt to provide flexibility for implementation of the standards, EPA also provided that numerical analyses of releases from a repository were to be incorporated into an overall probability distribution only to the extent practicable." This phrase appeared to allow some 11 discretion for NRC to incorporate qualitative considerations into its license

decision-making, rather than having to rely solely on numerical projections of repository performance. On the strength of these and other EPA assurances, the Commission did not object when the final standards were published in 1985.

Pursuant to the remand by the Federal court in 1987, EPA is currently revising its standards for disposal of spent fuel and high-level waste. The court's decision directed that the remand focus on the ground water and individual protection requirements of the standards. Although the EPA standards are still undergoing development at this time, the Commission does not currently see a sufficient basis to withdraw its confidence in the feasibility of evaluating compliance with such standards. NRC staff will closely monitor the development of repromulgated standards to assure that EPA methodologies for demonstrating c*omp1iance with them cc.n be applied by NRC to evaluate DOE's demonstration of a compliance. W In sum, considering both past and current programs for characterizing sites, the Commission concludes that technically acceptable sites for a repository can be found. The Commission is cor.fident that, given adequate tir.1e and resources, such sites can be identified,.evaluated, and accepted or rejected on their merits, even if no more than one site is undergoing site characterization.

This judgment does not rest on the acceptability of the Yucca Mountain site or any one future candidate site.

1.A.2. The development of effective waste packages 1.A.2.a. considerations in developing waste packages The NWPA required NRC to promulgate technical requirements and criteria to be A applied in licensing a repository for high-level radioactive waste. Under W' Section 121 of the Act, these technical criteria must provide for use of a system of multiple barriers in the design of the repository and such restrictior1s on the retrievabi l ity of waste as NRC deems appropriate. The system of multiple barriers includes both engineered and natural barriers.

The waste package is the first engineered barrier in the system of multiple barriers to radionuclide escape. The waste package is defined as the "waste form and any containers, shielding, packing and other absorbent materials immediately surrounding an individual waste container." Before sinking an exploratory shaft for site characterizations DOE is required to prepare an SCP including a descriptio~ of the waste form or packaging proposed for use at the repositoryi and an explanation of the relationship between such waste form or packaging and the geologic medium of the site

• lhe multiple barrier approach to radioactive waste isolation in a geologic repository is implemented in NRC requirements by a number of performance objectives and by detailed siting and design criteria. The NRC performance objective for the waste package requires substantially complete containment for a period of not less than 300 years nor more than 1000 years after permanent

cl~sure of the repository. The technical design criteria for the waste package require that interaction of the waste package with the environment not compror,iise performance of the package, the underground facility, or the geologic setting. Therefore, the waste package design must take into account the complex site-specific interactions between host rock, waste package, and ground water that wi 11 affect waste package and overa 11 repository performance.

Under the NwPAA, DOE was required to suspend site characterization activities at sites other than the Yucca Mountain, NV site. Consequently, DOE has narrowed the range of waste package designs to a design tailored for unsaturated tuff at the Yucca Mountain site. This aspect of the high-level waste program redirection may facilitate and expedite the waste package design process insofar as it enables DOE to concentrate its efforts on developing a single design for a single site instead of three designs for sites in bedded salt, basalt, and unsaturated tuff.

Currently, DOE is evaluating uncertainties in waste package design related to waste form, container type, and enviror.ment. The current conceptual design for th_~ waste package is based on several assumptions. The waste form is presumed to* be ten-year-old spent fuel or high-level waste in the form of borosilicate '

glass in stainless-steel canisters. (In addition to spent fuel and high-level I waste, the waste form may include greater-than-Class C (GTCC) low-level waste.  : .

This waste is not routinely acceptable for near-surface disposal under NRC regulations for disposal of low-level wastes, but is acceptable for disposal in a repository licensed for disposal of spent fuel and high-level wastes. This waste might include such materials as sealed sources and activated metals from the decommissioning of reactors and production facilities.)

Six materials are being considered for fabrication of containers, including austenitic steel (3161), nickel-based alloys (Alloy 825), pure copper (CDA 102), copper.;basecl alloys (aluminum-bronze, CDA-613, and 70-30 Cu-Ni, CDA-715),

and a container with a metal outer shell and ceramic liner. The reference container for the spent fuel and high-level waste is a 1.0-cm thick cylinder to be made of American Iron and Steel Institute (AISI) 304L stainless steel. This will be DOE's benchmark material, against which other materials are to be compared. DOE currently intends for spent fuel containers to be filled with an inert gas, such as argon, before being welded closeG.

The reference repository location is in the unsaturated tuft of the Topopah Spring Formation underlying Yucca Mountain. According to DOE, little free-flowing-water is thought to be present there to contribute to corrosion of the waste containers, although the degree of saturation in this tuff is estimated to be 65 +/- 19 percent of the available void space in the rock. DOE has acknowledged, however, that the greatest uncertainties in assessing waste package performance at Yucca Mountain stem from difficulty in characterizing and modeling the coupled geochemical-hydrologic process~s that represent the interactions between the host rock, waste package, and ground water. The final waste package design will depend on the results of site characterization and laboratory testing to reduce uncertainty in predicting these interactions in

. the reference repository horizon. The final design will also be shaped by research in understanding the degradation of candidate container materials, and the characteristics of the likely reference waste forms.

Regarding the state of technology for developing long-lived waste package containers, the Swedish Nuclear Fuel and Waste Management Company (SKB), the organization responsible for radioactive waste disposal in Sweden, has described a container for spent fuel rods that consists of a.0.1-m thick copper canister surrounded by a bentonite overpack. The design calls for pouring copper powder into the void spaces in the canisters, compacting the powder using hot-isostatic pressing with an inert gas, and sealing the canisters. SKB estimates that the copper canister waste package has a million-year lifetime.

(See also 1.B.3. below.) -

As noted in NRC's Final Point Papers on the Consultation Draft Site Characterization Plan, the Commission does not expect absolute proof that 100 percent of the waste packages will have 100 percent containment for 300 to lOOG years. Since that time, the NRC staff has completed its review of the December 1988 Site Characterization Plan for Yucca Mountain. Although the Commission continues to have concerns about DOE's waste package program, nothing has occurred to diminish the Commission's confidence that as long as DOE establishes conservative objectives to guide~ testing and design program, in tuft or in other geologic media if necess~ry, it is technically feasible to develop a waste package that.meets the performance objective for substantially t;omplete containment.

1.A.2.b. effect of reprocessing on waste form and waste package lhe Draft 1988 Mission Plan Amendment estimates that a total of about 77,800 r.i~tric tons of heavy metal (MTHM) of spent nuclear fuel and high-level e*

radioactive waste will be available for disposal by the year 2020. (This estimate is based on a "no new orders" assumption for commercial nuclear reactors a.nd a 40-year reactor 1ifetime.) Of this 77,800 MTHM, about 9400 MTHM will consist of reprocessed defense waste and a small amount of commercial reprocessed waste from the West Valley Demonstration Project. The decision to locate the defense high-level waste in the repository for wastes from commercial power reactors resulted from the requirement in Section 8 of the NWPA that the President evaluate the possibility of developing a defense-waste-only repository. In February 1985, DO~ submitted a report to the President recommending a combined commercial and defense repository. In April

!985~ the President agreed that no basis appeared to exist for a defense-only repository and directed DOE to dispose of defense waste in the commercial repository.

About 8750 MTHM of reprocessed high=level waste from defense facilities at

!>avannah River, SC, Hanford, WA, and Idaho Falls, ID will be available by 2020 for disposal in the repository, according to the Drdft 1988 Mission Plan Amendment. This waste will likely be solidifi~d into a borosilicate giass

matrix. About 640 MTHM of reprocessed high~level waste will come from the West Valley Demonstration Project, a facility for wastes from discontinued commercial reprocessing of spent fuel at that site. This reprocessed waste also will be solidified, probably in a borosilicate glass waste form.

Waste-form testing for the Yucca Mountain site is focusing on both spent fuel and reprocessed high-level waste. The performance of the waste form in providing the first barrier to radionuclide migration is being evaluated on the basis of the physical and chemical environment of the waste form after disposal, the performance of the waste container, and the emplacement configuration.

- A major limitation on glass waste-form testing is that the actual waste glasses to be disposed of are not available, and their exact composition will not be establishea until after further testing. Reference waste-glass compositions are being used for studies on the effect of variation in glass composition on performance. (These glass compositions are designed by Savannah River Laboratory* (SRL) for defense high-level waste, and by Pacific Northwest Laboratory (PNL) for the commercial hi9h-level wastes to be vitrified under the West Valley Demonstration Project Act.) The reference compositions will be revised when better analyses of the composition of the wastes at SRL and West Valley are available. Th~ test program will seek to establish upper bounds on leaching of important radionuclides, and t.he extent to which g1ass fracturing increases leach ratei Other factors influencing leach rate are temperature, pH of the leaching solution, formation of solid layers on the surface of the waste glass, irradiation, water volume, ar.d chemistry.

It is possible that renewed reprocessing of spent fuel from nuclear power

• reactors may result in a greater proportion of reprocessed waste to spent fuel than is currently anticipated. Although such a departure from the current plan to dispose of mostly unreprocessed spent fuel in the repository does not appear likely at this time, the Corrmission believes it is important to recognize the possibility that this situation could change.

The possibility of disposal of reprocessed waste as an alternative wastt form to spent fuel assemblies was recogr1ized by the Commission in the 1984 Waste Confidence Decision. The Commission noted that the disposal of waste from reprocessing had been studied for a longer time than the disposal of spent fuel, and that the possibility of reprocessing does not alter the technical feasibility of developir1g a suitable waste package. The Commission went on to say that there is evidence that the disposal of reprocessed high-level waste ffiay pose fewer technical challenges than the disposal of spent fuel. As long as DOE uses conservative assumptions and test conditions for evaluating the per.formance of different waste forms against NRC licensing requirements, the Commission has no basis to change its finding that there is reasonable assurance that reprocessing does not reduce confiaence in the technical feasibility of designing and building a waste package that will meet NRC licensing requirements in a variety of geologic media.

l.A.3. The development of effective engineered barriers for isolating wastes from the biosphere l.A.3.a. backfill materials At the time of the 1984 Waste Confidence Decision, DOE was developing conceptual designs for backfill in several geologic media. Most candidate sites at that time were in saturated rock, and the conceptual designs included backfilling or packing around waste containers to prevent or delay ground water flow which could enhance corrosion and radionuclide transport near the waste containers. The conceptual design for the engineered barrier system at the Yucca Mountain site has different parameters because the site is unsaturated; instead of backfill or p~cking around the waste container~ there is to be an air gap between sides cf the waste canister and the host rock. -

Backfill material around the container is not required under NRC regulations for the waste package. NRC regulations require that " *** containment of high-level waste within the waste packages [which inc1udes the container] wi11 be substantially complete for a period to be determined by the Commission ***

provided, that such period shall not be less than 300 years nor more than 1000 years after permanent closure of the repository" [10 CFR Subsection 60.113la}(l)(ii){B)j, and that the entire engineered barrier system meet the release rate performance objective of 1 part in 100,000 per year.

Backfill is also a component of the borehcile,.shaft~ and ramp seals, which are not part of the engineered barrier system or the underground facility.

Borehoies, shafts, and ramps must be sealed when the repository is permanently closed *. This aspect of backfilling is discussed below under "Uevelopment of sealants." Backfill may also include crushed rock used to fill openings such as drifts iri the undergrounci facility. At the Yucca Mountain candidate site, a DOE currently plans to fill openings in the undergrouna facility at closure of w the repository. Backfilling is not planned before repository closure because it is not needed for structural support for the openings, and it would make waste retrieval more difficult. At closure of the facility, however, openings will be backfilled with coarse tutf excavated for the facility. In the conceptual design provided in the SCP, the selection cf coarse tuff as backfill material is based on numerical simulations performed by DOE which suggest that coarse tuff would be a more effective barrier to capillary flow in the backfill matrix than fine materials.

DOE 1 s design for the engineered barrier system submitted with the license application will have to contain information sufficient for NRC to reach a favorable conclusion regarding the overall system performance objective.

Backfill or packing around waste containers is not required by NRC regulations ifi)OE can demonstrate that applicable performance objectives can be met without it. If, on the basis of testing and experim~nts during site characterization, DOE decided that backfi11 would enhance engineered barrier system performance, the design would have to reflect this conclusion. DOE has already conducted research on a wide variety of candidate materials for

backfill around waste packages in a variety of geologic media. The Commissiori continues to have confidence that backfill or packing materials can be developed as needed for the underground facility and waste package to meet applicable NRC licensing criteria and performance objectives.

1.A.3.b. borehole and shaft seals The engineered barrier system described above is limited to the waste package and the underground facility as defined in 1o*cFR Part 60. The undergrouna facility refers to the underground structure, including openings and backfill materials, but excluding shafts, boreholes, and thei-r seals. Containment and release-rate requirements are specified for the engineered barrier system, but not for the borehole and shaft seals. Seals are covered under 10 C~R Section 60.112, the overall post-closure system *performance objective for the repository. Among other things, this provision requires that shafts, boreholes and their seals be designed to assure that releases of radioactive materials to th~ accessible environment following permanent closure conform to EPA's ge".nera lly applicable standards for radioactivity. Althc,ugh the criteria for seals given in 10 CFR Part 60 do not specifically mention seals in ramps and the underground facility, it is reasonable to co11s ider them together with borehole and shaft sealants, because the seals and drainage design in ramps ana

_the underground facility could also affect. the overall syst~m performance of the geologic repos1tory. * . -

Construction of the ex*ploratory shaft facility (ESF) will be the first major site charatterization activity. The ESF will consist of two vertical shafts, one for testing and the other for support, and underground excavations for at-depth testing. The re-pository surface facilities will be connected to the underground facility by two additional shafts {a men-and-materials shaft and the emplacement area exhaust shaft) and two ramps, a waste ramp for bringing radioactive waste and spent fuel intc the repository, and a tuft ramp for removing rock from the undergrouna facility to a tuff pile. In addition to these shafts and ramps, there will be exploratory boreholes for obtaining samples of rock, water, and gases in strata at varying depths. Exploratory bcreholes have the potential to provide information on hydrologic properties of the Yucca Mountain site, with emphasis on movement of wate:r in unsaturated tuff. Other properties which will be studied using exploratory boreholes are lithologic, structural, mechanical, and thermal properties of the host rock. I .

When the repository is decommissioned, NRC expects that most, if not all 9 shafts, ramps, and boreholes will probably have to be s~aled to reduce the possibility that they could provide preferential pathways for radionuclide mig..ration from the underground facility to the accessible environment. DOE estimates that as many as 35G shallow and 70 deep exploratory boreholes may be emplaced by the time site characterization has been completed at the Yucca Mountain site. Decommissioning may not occur for up to 100 years after commencement of repository operations *. Because the final design for seals will likely have been modified from the initial license application design {LAD),

DOE is viewing the seal LAD as serving two primary functions. As set forth in DOE's SCP for the Yucca Mountain candidate site, the seal LAD is to establish that: (1) " *** technology for construc;ting seals is reasonably available;" and (2} " **. there is reasonable assurance that seals have been designed so that, following permanent closure, they do not become pathways that compromise the geologic repository's ability to meet the post-closure performance objectives. 11 To establish the availability of technology for seal construction, DOE has identified at least 31 site properties that need to be characterized in determining necessary seal characteristics. These properties include saturated hyclraulic conductivity of alluvium near shafts, the quantity of water reaching the seals due to surface-flooding events, and erosion potential in the shaft vicinity. The SCP also discusses material properties that need to be a identified to determine sealing components such as initial and altered w hydrologic properties of materials.

The SCP indicates that DOE is planning to use crushed tuff and cements in the sealing program at the Yucca Mountain candidate site. The stated advantages of using tuft include minimizing degradation of seal material and avoiding~

disruption of ambient ground-water chemistry.

DOE's current design concept for meeting the overall performance objectives includes a combination cf sealing and drainag~. ~eal requirements may be reduced in part by: (1) 1imiting the amount of surface water that may enh:r boreholes, shafts, and ramps; (2) s~lecting boreholes shaftj and ramp locations and orientations that provide long flow paths from the emplaced waste to the accessible environment above the repository; and (3) maintaining a sufficient rate of drainage below the repository horizon level so that water can be shunted past the waste packages without contacting them.

Although DOE 1 s program is focusing on seals for the Yucca Mountain candidate site the Conmissicn finds no b~sis for diminished confidence that an 9

acceptable seal can be developed for candidate sites in different geologic media. The Commission finds no evidence to suggest that it can not continue to have reasonable assurance that borehole, shaft, ramp, and repository seals can be developed to meet 10 CFR Part 60 performance objectives.

1.B. Relevant Issues That Have Arisen since the Commission's Original Decision 1.8.1. In support of its argument on technical feasibility, the Commission stated in its 1984 Waste Confidence Decision that 11

• • • DOE's program is providing information on site characteristics at a sufficiently large number and variety of sites and geologic media to support the expEctation that one or more technically acceptable sites will be identified." The NWPAA required, however, that DOE suspend site-specific site characterization activities under the ~uc1ear

Waste Policy Act of 1982 at all sites other -than the Yucca Mountain, NV site.

Under the NWPAA, the DOE program has been redirected to characterize candidate repository sites in sequence rather than simultaneously. If the Yucca Mountain site is found to be unsuitable, DOE must terminate site characterization activities there and provide Congress with a recommendation for further action, such as the characterization of another site. Because characterization of multiple sites now appears to be more directly related to the timing of repository availability than to the technical feasibility of geologic disposal as a concept, consideration of the Commission's aforementioned 1984 statement in light of the NWPAA will be discussed under Finding 2 *.

1.8.2. What is the relationship, if any, of the "S-3 Proceeding" to the current revi~w of the Commission's 1984 Waste Confidence Fi11dings?

Would the planned revision of the S-3 rulemaking be affected if the Commission had to qualify its current confidence in the technical feasibility of safe disposal?

In its decisior. to remand to tlRC the quest1ons of whether safe offsite storage would be available by 2007-2009, or, if not, whether spent fuel could be safely stored onsite past those dates, the U.S. Circuit Court of Appeals observed that the issues of storage and disposal of nuclear waste were being considered by the Commission in an ongoing generic proceeding known as the "S-3" Proceeding.

The S-3 Proceeding was the outgrowth of efforts tc address generically the NEPA requirement for an evaluation of the environmental impact of operati~n of a 1i9ht water reactor (LWR). Table S-3 assigned numerical values for environmental costs resulting from uranium fuel cycle activities to support one year of LWR operation. NRC promulgated the S-3 rule in April 1974. In July 1976, the U.S. Circuit Court of Appeals found that Table S-3 was inadequately supported by the record regarding reprocessing of spent fuel and radioactive waste management, in part because the Commission, in reaching its assessment, had relied heavily on testimony of NRC staff that the problem of waste disposal would be resolved.

When the U.S. Circuit Court of Appeals issued the remand on what were to become the "Waste Confidence" issues in May 1979, NRC had pending before it the final amended S-3 rule. The Court regarded the resolution of the issue of waste disposal in the S-3 proceeding as being related to the issue raised by the petitioners in the appeals of the NRC decisions on the expansion of spent fuel storage capacity. The Court said that the " *** disposition of the S-3 proceeding, though it has a somewhat different focus, may have a bearing on the pending cases. 11 The Commission approved the final S-3 rule in July 1979. In October 1979, the Commission issued a Notice of Proposed Rulemaking (NPR) on the Waste C~nfidence

issues in response to the remand by the Court of Appeals .. In the NPR, the Commission stated that the proceeding would 11 * *

• draw upon the record compiled in the Commission 1 s recently concluded rulemaking on the environmental impacts of the nuclear fuel cycle, and that the record compiled herein will be available for use in the general fuel cycle rule update discussed in that ru)emaking. 11 In the final Table S-3 rule issued in 1979, the Coll1Tlission had said that

" *** bedded salt sites can be found which will provide effectivE isolation of radioactive waste from the biosphere." When the Cornmission issued the 1984 Waste Confidence Decision, part of the basis for the discussion of waste management and disposal in the August 1979 final S-3 rule had changed. For example, in 1984 the repository program was proceeding under the NWPA, which required that DOE recommend three sites for site characterization.

Although NRC is preparing to amend the S-3 Table, and add a new appendix to explain the basis for and significance of the data in the table, it is unlikely that the revision will have any impact on the Commission's generic findings in the Waste Confidence proceeding. Nor is it likely that this reexamination of the Waste Confidence findings wi 11 affect the S-3 rule; the Waste Confidence Proceeding is not intended to make quantitative judgments about the environmental costs of waste disposal. Unless the Con~iss1on 1 in a future review of the Waste Confidence decision, finds that it no longer has confidence in the technical feasibility of disposal in a mined geologic repository~ the Commission will not consider it necessary to review the S-3 rule when it reexamines its Waste Confidence findings in the futurt.

1.B.3. To what extent do developments in spent fuel disposal technology outside of the United States (e.g., Swedish waste package designs) enhance NRC's confidence in the technical feasibility of disposal of high-level waste and spent fuel?

Spent fue1 disposal technology is the subject of extensive research investigation iri both Europe and North America. Advances in this technology are being communicated to the NRC staff both through bilateral agreements and the presentation of research results at international meetings.

Outside the U.S., studies of spent fuel as a waste form are now being conducted primarily in Canada and Sweden, although both France and West Germany have small programs in this area. The Swedish st~dies have been mainly concerned with boiling water reactor (BWR) spent fuel, whereas the Canadian studies focus on spent fuel from that country's CANDU reactors, which use unenriched uranium in a core immersed in "heavy" water made from deuterium. BWR and CANDU fuel, likoe pressurized water reactor (P~lRJ fuel>> are uranium dioxide fuels clad in zircaloy. However, the burnup rates for these three fuei types vary considerably. Ongoing research studies on spent fuel include: work on the characterization of spent fuel as a waste form; the corrosion of spent fuel and its dissolution under oxidizing and reducing conditions; the radiolysis of

ground water in the near vicinity of the spent fuel, and its effects on the dissolution of the fuel; and the development of models to predict the leaching of spent fuel over long time periods. The results of this work are steadily increasing our understanding of spent fuel as a waste form.

High-level radioactive waste, whether it is spent reactor fuel or waste from reprocessing, must be enclosed in an outer canister as part of the waste package. The canister surrounding the waste is expected tu prevent the release of radioactivity during its handling at the repository site before emplacement.

After emplacement in the repository, it is expected to prevent the release of radioactivity for a specified period of time after the repository is closed, by providing a barrier to protect the waste from coming into contact with ground water.

For practica*1 reasons, canister materials may be divided into the following classes: lJ complete1y or partially thermodynamically stable materials such as copper; 2) passive materials such as stainiess steel, titanium, Hastelloy, lnconel, and aluminum; 3) corroding or sacrificial materials such as lead and steel; and 4) non-metallic materials such as alumina and titanium dioxide ceramics

.;~~

and cement .

Sweden has been conducting an extensive canister research program over the.past several years. The main canister material of interest is copper, but titanium, carbon steel, and alumina and titanium dio~ide are also being studied as reasonable alternatives, should unexpected problems be discovered with using pure copper.

• The present Swedish canister design is a 100-mm thick copper container (as described previously in Section A.2.a.), which is claim_ed to provide containment, in conjunction with an appropriate backfi11 material, for a period on the order of one million years. The critical factors for the isolation period for copper canisters are: (1) the presence of corrosive substances such as sulphide ions in the ground water; (2) the possibility of these substances reaching the canister surface; and (3) the degree of inhomogeneity, or pitting, of the resulting corrosion. Studies are continuing to obtain more information on pitting corrosion of copper and on techniques for welding thick-walled copper containers.

Several conceptual designs for canisters for the safe disposal of unreprocessed spent fuel have also been developed in Canada. One canister design option is the supported-shell, metal-m~trix concept, which involves packing the spent tuel bundles into a thin corrosion-resistant shell and casting the remaining space with a low melting point metal or alloy. Structural support for the shell would b'e provided by the resulting metal matrix. Lead is a pos~ible mat-rix material because of its favorable casting properties, cost, and low melting point.

Other supported shell canister concepts include the packed-particulate and structurally-supported designs. In these designs, a thin outer shell is

supported by a particulate material packed around a steel internal structure that contains the spent fuel bundies. Several materials have been identified for the fabrication of the corrosion -resistant outer shell, including commercially pure and low-alloy titanium, high nickel-based alloys such as lnconcl 625, and pure copper. Detailed designs have been produced for all three types of supported shell canisters incorporating either a titanium or nickt:l alloy shell less than 6-mm thick. A conceptual design has also been produced for a copper-shell structurally-supported ca~ister and J metal-matrix container with a relatively thick (25-mm) copper shell and a lead matrix material. This last canister is intended to contain 72 used CANDU fuel bundles in four layers of 18 bundles each.

Both the Canadian and Swedish conceptual designs for the disposal of spent fuel -

in canisters provide for surrounding the canister with backfill material as part of the waste package when it is emplaced in the repository. This backfill material would be packed around the canister to r~tard the movement of ground water and radionuclides. Investigations of backfill material at the Stripa min~ in Sweden have shown that bentonite and silica sand can be employed successfully as backfill, both around tht: canister and in repository tunnels.

A bentonite-silica mixture is the recommended backfill material on the basis of its thermal and mechanical properties. Bentonite backfills have been shown to produce hyciraulic conductivities that are very similar to the surrounding granite at Stripa. Problems concerning th~ variability of bentonite samples from different geographic locations can be elimin~ted if material from-a single source is used. The presence cf sulfur and some organic material, including bacteria, in many bentonites poses some problems related to microbia.lly-accelerated corrosion. Treatment with hydrogen peroxide may be used to oxidize these organics. Heating the bentonite to 400 degrees C can also be eftective, although this may alter the crystal structure of the a bentonite.* W Mar1y countries intend to dispose of their high- level radioactive waste by first converting the wastes into a solid, vitrified form after reprocessing. Sine~

the leaching of the waste form by circulating ground water aft~r disposal is the most likely mechanism by which the radionucliaes might be returned to the biosphere, the waste form must be composed of a highly stable material with an extremely low solubility in ground water. Thus, the waste form itself should function as an immobilization agent to prevent any significant release of radionuclides to the biosphere over very long time periods. The two primary materials currently being considered for use as solidified waste forms are borosilicate glass and SYNROC, a man-made titanate ceramic material.

SYNROC was initially developed in Australia as an alternative material to bor~silicate glass. It is composed primarily of three minerals (hollandite>>

zirconolite, and perovskiteJ which collectively have the capacity to accept the great majority of radioactive high-level waste constituE::nts into their crystal lattice structure. These three minerals, or closely relatEd forms, occur naturally, and have been shown to have survived for many millions of years in a wide range of natural environments. SYNROC has the property of being extremely

resistant to leaching by ground water, particularly at temperatures above 100 d~grees C. In adaition, the capacity of SYNROC to immobilize high-leve*i wastes is not markedly impaired by high levels of radiation damage.

lhe high leach-resistance of SYNROC at elevated temperatures increases the range of geologic environments in which it may be used, such as deep geologic repositories in both continental and marine environments.

Research and development work on improving SYNROC production technology is currently being done jointly in Australia and Japan. New methods of us1ng metal alkoxides in the fabrication of SYNROC to obtain high homogeneity and lowered leachability have recently been developed in Australia. The Japanese have recently developed a new methc,d that uses titanium hydroxide 11 as a reducing ager1t to produce SYNROC with a high density and low leach rate. A pilot facility for the production of non-radioactive SYNROC is now in operation in Australia, and a small pilot facility for producing SYNROC with radioactive constituents is being completed in Japan.

oJ the basis of current information from the foreign studies just described on canisters, spent fuel as a waste form, backfill materials, and alternatives to borosilicate glass waste forms, the Commission concludes that there is no basis for diminished confidence that an acceptable waste package can be developed for safe disposal of hi~h-level waste and sp~nt fuel.

1.C. Co11clusion on Finding 1 The Commission has reexamined the basis for its First Finding in the 1984 ~aste Confidence Decision ,n light of subsequent program developments, and concludes that Finding 1 should be reaffirmed.

The technical feasibility of a repository rests initially on identification of acceptable sites. At this time, the Commission is not aware of any evidence indicating that Yucca Mountain is not acceptable for site characterization.

There are many outstanding questions regarding the licenseability of the sites however~ arrd they must be answered satisfactorily in order for NRC to issue a construction authorization for that site. If data obtained during site characterization indicate that the Yucca Mountain site is not suitable for a repository, DOE is required by the NWPAA to terminate site characterization activities and report to Congress. Within six months of that determination, DOE must make a recommendation to Congress for further action to assure the safe, permanent disposal of spent fuel and high-level waste. DOE could recommend for example, that Congress authorize site characterization at other 9

sites.* Considering DOE's investigations of other potentially acceptable sites before its exclusive focus on Yucca Mountain, the Commission has no reason to believe that, given adequate time and program resources, a technically acceptable site can not be found.

The technical feasibility of geologic disposal also depends on the ability to develop effective engineered barriers, such as waste packages. DOE is currently evaluating six candidate materials for waste containers, including austenitic steel and copper- and nickel-based alloys, and is planning waste-form testing based on both spent fuel and high-level waste in borosilicate glass. On the basis of DOE's program, and results from Swedish investigations of a copper waste container, the Commission is confident that, given a range of waste forms and conservative test conditions, the technology is available to design acceptable waste packages.

In addition to the materials testing for the waste container and waste forms there may be aaditional measures that can be taken to improvt the effectiveness of the engineered barriers. It is known, for example, that the heat-loading a characteristics of the wastes diminish with time. Also, the longer wastes are W stored before disposal, the smaller will be the quantities of radionuclides available for transport to the accessible environment.

It is also technically feasible to separate from radioactive wastes the radionuclides that constitute the principal source of heat from the nuclides of greatest long-term concern. The former radionuclides, mainly fission products such as cesium-137 and strontium-90, could then be stored for a period of years while the fission products decay to the point where they could be disposed of either in a manner that does not require the degree of confinement provided by a geologic repos1tory, or in a repository with less concern for thermal disturbance of the host rock 1 s expected ~aste isolation propertieso Meantime, the longer-lived remaining radionuclides, such as transuranic wastes with elemt:rits h~avier than uranium, could be disposed oi in a repository away from the fission products and without the high thermal loadings that would otherwise have to be considered in pr~dicting the long-term waste isolation performance of the geologic setting. France, Great Britain, and Japan are currently *-

pursuing this waste manage:ment strategy or a variar,t of ito The Commission emphasizes here that it does not believe that recycling technologies are required for the safety or feasibility of aeep geologic disposal in the United States. Other countries, such as Ca11ada~ the Federal Republic of Germany, ar1c! Sweden are pursuing disposal strategies bas~d on a similar view. Reprocessing, if employed in its current stage of development, would result in additional exposures to radiation and volum~s of radioactive wastes to be disposed of. For the purpose of finding reasonable assurance in the technical feasibility of geologic disposal, however, it is *worth noting that technology is currently available to permit additional engineering control of waste forms if, for reasons not now foreseen, such control w~re deemed desirable at some future time. Meanwhile, the Commission continues to have*

confidence that safe geologic disposal is technically feasible for both spent fuel and high-level waste.

DOE's current reference design for the waste package does not include backfill or packing around waste containers in the emplacement boreholes. Neither is required under NRC rules so long as DOE can show that applicable regulatory

criteria and objectives will be met. An air gap between the container and the host rock is currently one of the barriers in DOE s design for meeting the 1

performance objective. DOE has conducted irivestigations on a variety of candidate materials for backfill in a variety of geologic media, and the*

Commission finds no basis to qualify its past confidence that backfill materials can be developed, if needed, to meet applicable NRC requirements.

The current reference design for sealing boreholes, shafts, ramps and the underground facility at the Yucca Mountain candidate site: employs crushed tuff and cement. Regardless of the geologic medium of the candidate site, DOE will have to show that the license application design meets NRC post-closure performance objectives. The Commission continues to have reasonable assurance that DOE's program will lead to identification of acceptable sealant materials for meeting these objectives.

Overall, from its reexamination of issues related to the technical feasibility of geologic disposal, the Commission concludes that there is reasonable a$surance that safe disposal of high-level waste and spent fuel in a mined ge,'ologi c repository is techni ca 1ly feasible. * -

• 1 I

I I

i

Original Finding 2: The Commission finds reasonable assurance that one or more mined geologic repositories for commercial high-level waste and spent fuel will be available by the years 2007-2009, *anci that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high-level radioactive waste and spent fuel originating in that reactor and generated up to that time.

Proposed Findi~: The Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyonci the licensed life for operation of any reactor to dispose of the corrunercia l high- level radioactive waste and spent fue I originating in such reactor and generated up to that time.

2.A. Issues Considered in Commission's 1984 Decision on Finding 2 2.A.1. Finding Technically Acceptable Sites in a Timely Fashion In order for the Commission to find that any candidate site for a repository is technically acceptable (that is, in con1pliance with NRC licensing requirements), the site must undergo comprehensive site characterization to assess its hydrologic, geologic, geochemical, and rock mechanics properties.

It is possible that a site may be found unacceptable on the basis of early in-situ testing or other site characterization activitieso It will not be possible, however, for the NRC staff to take a position before a licensing board that a site wil1 meet NRC requirements for construction authorizatior.

until the results of all site characterization activities are available. Even then, the staff may conclud~ that the evidence fro~ site characterization does not constitute reasonable assurance that NRC performance objectives will be met. Also, the results ~f the licensing hearings on construction authorization a.

cannot be preaictedo If constructior1 is authorized and when it is ..

substantially complete, DOE is required to obtain, in addition to the construction authorization permiti a lic~hse to receive and possess waste at the geologic repository operations area in order to commence repository operations. These considerations argue for mairitaining the ready availability of alternative sites if, after severa1 years, site characterization or licensing activities bring to light difficu1ties at the leading candidate site.

In support of its argument on technical feasibility, the Cormnission stated in its 19C4 Waste Confidence Decision that 11 * *

• DOE 1 s program is providing information on site characteristics at a sufficiently large number and variety of sites and geologic media to support the expectation that one or more technically acceptable sites will be identified." At the time, DOE was req,uired under the NWPA to characterize three candidate repository sites" r The NWPAA had a major impact on DOE 1 s repository program, however. Under the NWPAA, DOE was required to susper.d site-specific activities at the Hanford, WA and Deaf Smith County, TX sites, which had been approved by the President for site characterization for the first repository. Redirection of the repository

program to single-site characterization (or, if necessary,* sequential site characterization if the Yucca Mountain site is found to be unsuitable) will permit DOE to concentrate its efforts *and resources on information gathering at a single site, as opposed to spreading out its efforts over a range of sites.

lhe possible schcdular benefits to singl~-site characterization, however, must be.weighed for the purposes of this Finding against the potential for additional delays in repository availability if the Yucca Mountain site is found to be unsuitable. By focusing DOE site characterization activities en Yucca Mountain, the NWPAA has essEntially made it necessary for that site to be found suitable it the 2007-2009 timeframe for repository availability in the

~ommission's 1984 Decision is to be met. Clearly, the Commission cannot be certain at this time that the Yucca Mountain site will be acceptable.

Although the Commission has no reason to believe that another technically acceptable site can not be found if the Yucca Mountain site proves unsuitable, several factors raise reasonable doubts as to the availability of even one repository by 2007-2009. These include: (1) the current reliance on a single site with no concurrently available alternatives; (2) the probability that site c~,aracterization .activities will not proceed entirely without problems; and (3) the history of schedular slippages since passage of the NWPA. Fer example, DOE's schedule for the first repository slipped five years (from 1998 to 2003) between January 1983, when the NWPA was enacted, anc! January 1987, when the first Draft Mission Plan Amendment was issued. The schedule for excavation of the exploratory shaft for the Yucca Mounta~n site slipped by more than three years ~ince the issuance of the POS in March 1986. DOE has cited numerous reasons for past program slippages, inc1uding the need for a consultat1on process with States and Tribes, Congressional actions (e.g., the barring of funds in the 1987 budget appropriation for dri 11 ing exploratory shafts), and DOE's recognition that the EIS and license application would require more technical information than previously planned.

Given this history of delays, arid given its understanding of current developments, the Commission can not be 5Ure that current milestones for the repository program will be met, at least in the foreseeable future. For*

example, DOE has taken the position, with which NRC agrees, that sinking of exploratory shafts should not occur before it has a qualified quality assurance (QA) program in place. The Commission believes that the aggressive, success-oriented schedule for this milestone has not allowed for unexpected developments. Ir.deed, the effort to develop an approvable QA program has in itself identified problems in design control and other processes that must be resolved in order to establish a fully-qualified program that addresses al1 applicable NRC licensing requirements.

Thus, although the NWPAA is a clear and strong reaffirmation of Congressional sup.port for the timely development of a repository, the Commission in this Waste Confid~nce review cannot ignore the potential for delay in repository availability if the Yucca Mountain site, or any other single site designated for site characterization, is found to be unsuitable. Without alternative sites undergoing simultaneous characterization or even surface-based testing,

DOE will have to begin characterizing another site if the ~ite currently selected for characterization proves unsuitable. The earlier a determination of unsuitability can be made, the smaller the impact of such a firiding would be on the overall timing of repository availability.

DOE has estimated conservatively that it would require approximately 25 years to begin site screening for a second repository, perform site characterization, submit an EIS and license applications, and await authorizations before the repository could be ready to receive waste. In its June 1987 Mission Plan amendment, DOE stated 11 It *** seems prudent to plan that site-specific screening leading to the identification of potentialiy acceptable sites should start about 25 years before the start of waste acceptance for disposal. 11 DOE went on to say that it co11sidered thit estimate to be conservative because it ~

does not account for expected schedular benefits from the first repository w program, including improvements in such areas as site screening, site characterization, and performance assessment techniques.

• Although DOE's estimate was premised on the successful completion of a program for the f1rst of two repositories, schedular benefits from improvements in the understanding of waste isolation processes would still be available. The glass waste form from the Defense Waste Processing Facility now und~r construction at Savannah River, SC, for example, will be available for testing under siau1ated repository conditions well before the turn of the century under current DOE schedules, and improvements in the ffiOdelling of spent fuel behavior within waste canisters can be applied in performance assessments largely irrespective of the geology of a site. It may also be perti11t:nt that when DOE made its 25-year estimate for the second repository program in mid-1987, the law at the time.required the simultaneous characttrization of three sites, so that DOE could not proceed tc develop one site for a repository until the com~1etion of characterization at the site that required the most time. -

Although it is still possible for a repository to be available by 2007-2009 if the current schedule does not incur major additional delayss the Commission does not believe it would be prudent to reaffirm the Agency 1 s 1984 finding of reasonable assurance thQt the 2007-2009 timetable will be met. As the Court of Appeals noted in remanding this issue to NRC, the ultimate determination of whether a disposal facility will be available when needed 11 * *

• can never rise above a prediction." The Commission is in the position of having to reach a definitive finding on events which are almost two dec.:ades away. We believe that the institutional timescale for this question can more realistically be framed in decades than in years. As the program proceeds into the next century, it will become easier for NRC to make more definitive assessments, if necessary, of the time a repository will be available.

It should be noted here that the basis for the 2007-2009 timeframe in the Court remand on the "Waste Confidence" issues has changed in the past five years.

These dates no longer represent the expected dates of expiration of the Vermont Yankee and Prairie Island facilities. When the operating licenses were originally issued for nuclear power reactors, license durations were computed

on the basis of a 40-year operating lifetime starting from the date of the construction permit (CP) for the facility. For many facilities, five years or more elapsed from the date of issuance of the CP until issuance of the operating license (OL). In response*to requests from utilities, the NRC staff has agreed to extend the dates of expiration of the OLs by computing the 40-year period of the license from the date of issuance of the OL instead of from the date of the CP. The NRC staff has already changed the expiration date for Prairie Island Units 1 and 2 from the year 2008 to the years 2013 and 2014.

The staff currently expects Vermont Yankee to request a change in its current expiration date of December 11, 2007. On the basis of the date of issuance of the OL for Vermont Yankee, it is eligible for extension of its operating license expiration to March 2012. Therefore, if the remand were to occur today, NRC would likely be evaluating the availability of a repository by 2012-2014, as these years are expected to represent the timeframe in which the Ols of the Vermont Yankee and Prairie Island faci *1ities are due to expire.

In light of all these considerations, the Commission believes it can have reasonabi assurance that at least one repository will be available within the first quarter of the twenty-first century. This estimate is based on the time it would take for DOE to proceed from site screening to repository operation at a site other than Yucca Mountain, if this should prove necessary. Assur.1ing for the sake of conservatism that Yucca Mountain would not be found suitable for repository development, it is reasonable to expect that DOE would be able to reach this conclusion by the year 2000. T.his would leave 25 years for the attainment of repository operations at another site.

2.A.2. Timely Development of Waste Packages and Engineered Barriers DOE's current conceptual design for the waste package is discussed in th~ SCP for the Yucca Mountain site. As information is obtained from site characterization activities and laboratory studies, the conceptua1 design will evolve in successive stages into the Advanced Conceptual Design (ACD), the LAD, and the final procurement and construction desigr,. DOE has identified four areas of investigation related to the waste packag~ LAD: (lJ waste package environment; (2) waste form and materials testing; (3) design, analysis, t*abrication, and prototype testing; and (4} performance assessment. Numerous uncertainties exist in each of these areas. DOE's testing program will attempt to reduce uncertainties in these areas where possible. For example, in-situ testi~g is expected to decrease significantly uncertainties regarding the repo~itory host rock mass in which the waste packages will be emplaced. In the area of performance assessment, however, where results of relatively short-term te~ting of complex rock-waste-ground water interactions must be extrapolated over as many as 10,000 years, it may be necessary to rely more heavily on the us~ of simplifying assumptions ana bounding conditions than in other areas of investigation.

As discussed under Finding 1, the ColTITlission continues to have reasonable assurance that waste packages and engi~eered barriers can be aeveloped which

will contribute to meeting NRC performance objectives for the repository. The timing of availability of a complete and high quality waste package and engineered barrier LAD, specifically-their availability on a schedule which would permit repository operation by 2007-2009, is more difficult to assess at this time. In contrast with the technical feasibility issues discussed under Finding 1, development of acceptable waste packages and engineered barriers for a repository in the 2007-2009 timeframe do~s depend on the overall accepta-bility of the Yucca Mountain site. If the site is founci to be unsuitable, waste package and engineered barrier development will have to begin for a different site, because, under the MWPAA, DOE may not carry cut site characterization and waste pack~ge development work at sites other than the Yucca Mountain site.

Although much of the work related to waste form, materials, and performance assessment for the waste package can proce~d independently of in-situ testing, the investigations related to waste package environment depend on the schedule for this testing. DOE's current schedule calls for compieting the ACD for the waste package in 1992 and the waste package LAD- in 1994. The ability to meet 9

these dates will depend on whether DOE is able to resolve outstanding QA issues which have impeded shaft sinking and in-situ testing.

In sum, the Commission is not aware of any scientific or tec.hnical prvblems so difficult as to preclude development of a waste package and engineered barrier for a repository at Yucca Mountairi to be available within the first quarter of the twenty-f1rst century. Moreover, even given the uncertainty regarding the uitimate finding of sit~ acceptability, and the uncertainty concerning the range of s:ite-relatE:d parameters for which tht: engint:!ered facility ana waste package wi1) have to be designed, the Commission finds reasonable assurance that waste package and engineered barrier development can be completed on a

~cheaule that would permit repository operation within the first quarter of the twenty-first century. If necessary (that is, if Yucca Mountain were found unsuitable late in the program), DOE could initiate site characterization and develop waste packages and engineered barriers at another site or sites and still commence operation before the end of the first quarter of that century.

2.A.3. Institutional Uncertainties 2.A.3.a. Measures for dealing with Federal-State-local concerns In its 1984 Waste Confidence Decision, the Commission found that the NWPA should help to minimize the potential that differences between the Federal Government and States and Indian tribes will substantially disrupt or delay the repository program. The Commission noted that the NWPA reduced uncertainties regarding the role of affected States and tribes in repository site selection and evaluation. The Commission also said that the decision-making process set up by the N\JPA provides a detaiied, step-by-step approach that builds in regulatory involvement, which should. also provide confidE:nce to States and tribes that the program will proceed on a technically sound and acceptable

basis. Despite the expected and continuing State opposition to DOE siting activities, the Commission has found no institutional developments since that time that would fundamentally disturb- its 1984 conclusions on this point.

NHC regulatory involvement, for example, has indeed been built into the process. DOE has continued its interactions with NRC regarding repository program activities since the Commission's 1984 Waste Confidence decision was issued. NRC provided comments to DOE on major program documents such as the Siting Guidelines and the PDS as required by the NWPA, and NRC concurred on those documents. NRC also reviewed anti provided comments to DOE on the DEAs and FEAs. In the December 22, 1986 letter to DOE on the FEAs, the NRC staft noted that " *** significant efforts were made by DOE to respond to each ot* the NRC staff major comments on the DEAs, and in fact, many of these comments have been resolved." NRC provided comments to DOE on the 1967 Uraft Mission Plan Amendment, and DOE responded to most of these comments in the Final Mission Plan Amendment provided to Congres~ on June 9, 1987.

Since enactment of the NWPAA in December 1987, DOE-NRC interactions have tckused on the Yucca Mountain site. In January 1988, DOE issued the Consulta-tion Draft Site Characterization Plan (CDSCP) for the Yucca Mountain site. The NRC staff provided comments in the form of draft and final "point papers" on the CDSCP. The NRC comments included several objections related to: (1) the failure to recognize the range of alternatjve conceptual models of the Yucca Mc1.;ntain site; (2) the status of the quality assurance (QA) plans for site-*

characterization activities; and (3) concerns related to the exploratory shaft facility. Although the December 1988 SCP shows improvement over the CDSCP, NRC cor.tinues to have an objection involving the need for implementing a baselined QA program before beginning site characterization and an objection involving the need for DOE to demonstrate the adequacy of both the ESF design and the design control process. DOE is committed to having a qualified QA program in place before sinking the exploratory shaft at the Yucca Mountain site.

DUE has also taken measures *to clarify and institutior.alize the roles of other Federal agencies tn addition to NRC. In the Draft 1986 Mission Plan Amendment, DOE described interactions with these agencies. DOE has a Me~orandum of Understanding (MOU) with the Mine Safety and Health Administration of the Department of Labor for technical support and oversight for shaft construction and other site characterization activities, and with the Department of Transportation to define the respective responsibilities of the two agencies in the waste disposal program. DOE alsc has interagency agreements with the Bureau of Mines and the U.S. Geological Survey of the Department of the Interior.

DO~'s efforts to address the concerns of States, local governments, and Indian tribes have met with mixed results. For example DOE has not succeeded in finalizing an~ consultation and cooperation (C&cj agreements as required under Section 117(cJ of the NWPA>> as amended. These agreements were to help resolve State and Tribal concerns about public health and safety, environmental, and economic impatts of a repository. Publication of the Siting Guidelines unaer

= 34 -

section 112(a) of the NWPA resulted in numerous lawsuits challenging the validity of the Guidelines. Similarly, the FEAs were challenged in the Ninth

~ircuit by affected States and tribe~c The NWPAA did not curtail financial assistance to affected States and tribes, except to redefine and redistribute it if DOE and a State or tribe enter into a benefits agreer.~nt. The State of Nevada and affected local governments are currently receiving financial assistance:. DOE has attempted to negotiate an agreement with the State of Nevada for monetary benefits under Section 170 of the NWPAA. This Section would provide for payments of $10 million per year before receipt of spent fuel, and $20 million per year after receipt of spent fuel until closure of the repository. These payments would be in addition to certain monetary benefits for which the State is eligible: under the NWPA, as a an~nded. Also under a benefits agreement, a Review Panel would be constituted W for the purpose of advising DOE on matters related to the repository, and for assisting in the presentation of State tribal, and local per~pectives to DOE.

9 The beneficiary to a benefits agreement must waive its right to disapprove the recomn;endation of the site for a repository and its rights to certain impact assistance under Sections 116 and 118 of the NWPA>> as amended. To date, the State of Nevada has declined DOE's offer to negotiate a benefits agreement.

The NWPAA introduced several new organizational entities to the repository program with responsibi1ities that may contribute to resolving concerns of F~deral, State, and l_ocal governments invo*lved in the program. Under Section 503 of the NWPAA, the Nuclear Waste Technical Review Board (NWTRB) is to evaluate the technical*and scientific validity of DOE activities under the NWPAA, including site characterization ar.d activities related tc packaging or trc..nsportation of sperit fuel. The NWPAA also established the Office of Nuclear Waste Negotiator, \,ho is to seek to negotiate terms under which a State or Indian tribe would be willing to host a repository or MRS facility at a -

technically qualified site. Among the duties of the Negotiator is consultation with Federal agencies such as NRC on the suitability of any potentia 1 site for site characterization.

At the time of this writing, the President has not appointed the Negotiator.

On February 24, 1989 Congressman Morris K. Udail and Senator J. Bennett Johnston requested that the President take action to appoint an individual to this office. A Negotiator could contribute to the timely success of the repository program by providing an alternative site to the Yucca Mountain site that would sti11 have to be technically acceptable, but that would enjoy the advantage of reduced institutional uncertainties resulting from opposit1on of State or affectea Iridian tribes.

An additional measure which may facilitate documentat1on and communication of concerns related to a repository is the Licensing Support System (LSS). The LSS is to provide full text search capability of and easy access to documents related to the licensing of the repository. Although the primary purpose of the LSS is to expedite NRC's review of the construction authorization application for a repository, it t1ill be an effective mechanism by which all

LSS participants, including the State and local governments, can acquire early access to documents relevant to a repository licensing decision. DOE has the responsibility for designing the LSS .and bearing the costs associated with it, and NRC will be responsible for implementing it.

Procedures for the use of the LSS are part of revisions to 10 CFR Part 2, NRC's Rules of Practice tor the adjudicatory proceeding on the application to receive and possess waste at a repository. These revisions were the result ot a "negotiated rulemaking" process in which affected parties meet to reach concensus on the proposed rule. The members of the negotiating .committee included: DOE; NRC; State of Nevada; coalition of Nevada local governments; coalition of industry groups; and a coalition of national environmental groups.

The coalition of industry groups dissented on the final text of the proposed rule, but the negotiating process enabled t!RC to produce a proposed rule reflecting the consensus of most of the interested parties on an important repository licensing issue.

NR.C is committed to safe disposal of radioactive waste and the protection of public health and safety and the environment. Any State with a candidate site for a repository should be assured that a repository will riot be licensed if it does not meet NRC criteria. NRC has its own program for interaction with the State of Nevada and aff~cted units of local government, and will continue to pro~ide information to. Nevada and consider State concerns as requested.

Given the difficult nature of siting a repository, the Commission believes that the NWPA, as amended, has achieved the proper balance between providing tor participation by aftected parties and providing for the exercise of Congressional authority to carry out the national program for wast~ disposal.

The NWPAA provides adequate opportunity for interaction between DGE and other Federal agencies, States, tribes, and local governments such that concerns can be presented to DOE for appropriate action. Both the NRC and th~ State or tribe can exercise considerable prerogative regarding repository development.

The State or tribe may disapprove the recommendation that thll site undergo repository development. This disapproval can be overridden only by vote of both houses of Congress within 90 days of continuous session. If the State disapproval is overridden, DOE may submit an application for authorization to construct the repository, and, if approved, a subsequent application to receive and possess wast1::: for emplacement. NRC wi11 make decisions on the license applications according to the requirements of its statutory mission. Despite the complexity of the overall process and the strong views of the participants in it, the Coir.mission sees no compelling reason to conclude theit current institutional arrangements are inadequate to the task of resolving State, Federal, and local c'oncerns in time to permit a repository to be available within the first quarter of the twenty-first century.

2.A.3.b. Continuity of the management of the wa~te program

At the time the Commission issued its 1984 Waste Confidence Decision, the possibility that DOE functions would be transferred to another Federal agency was cited as the basis for concerns that the resolution of the radioactive waste disposal problem would likely undergo further delays. Th~ Convnission responded that in the years since the Administration had proposed to dismantle DOE in September 1981, Congress had not acted on th~ proposal. The Commission further stated that even if DOE were abolished, the nuclear waste program would simply be transferred to another agency. The Convnission dici not view the potential transfer in program management as resulting in a significant loss of momentum in the waste program. The Commission also concluded that the enactment of the NWPA, which gave DOE lead responsibility for repository development, further reduced uncertainties as to the continuity of management of th~ waste program. -

Section 303 of the NWPA did, howeverj require the Secretary of Energy to

" **. undertake a study with respect to alternative approaches to managing the construction and operation of all civilian radioactive waste facilities, including the feasibility of establishing a private corporation for such purpose. 11 To carry out this requirement, DOE established the Advisory Panel on Alternative Means of Financing and Managing Radioactive Waste Facilities, which came to be known as the "AMFM 11 Panel. The Panel's final report, issued in December 1984, concluded that several organizational forms are more suited than DOE for- managing the waste program, includ_ing an independent Fedt:ral agency or commission, a public -corporation, and a private corporationo The report identified a public corporation as th~ preferred alternative on the basis of criteria developed by the Panel for an acceptable waste rnanagem~nt organization. In particular, the report indicated that a public corporation would bt: stable, nighly mission-oriented, able to maintain credibility with stakeholders, and more responsive to regulatory control than a Federal a executive agency. w Commenting on the AMFM Panel's report in Jl.pr-il 1985, DOE recommended retaining the present management structure of the waste program at least through the siting and licensing phase of the program. Congress did not take action to implement the Panel's recommendations, and DOE 1 s management of the waste program has remained uninterrupted.

By enacting the NWPAA, Congress effectively reaffirmed DOE 1 s continued management of the waste program. Congress did not revise DOE 1 s role as the lead agency responsible for development of a repository and an MRS. Congress did establish several new entities for the purpose of advising DOE on matters related to the waste program, such as the NwTRB and the Review Panel, to be

~stablishtd if DOE and a State or tribe enter into a benefits agreement under Sec.tion 170 of the NWPAA. Congress provided further indication of its intent that DOE maintain management control of the waste program for the foreseeable future in requiring, under Section 161~ that the Secretary of DOE 81 * *

• report to the Pres ider1t and to Congress on or after January 1, 2007. but riot later than January 1, 2010, on the need for a second repository."

This is not to say, however, that there have been no management problems in the DOE program *. Since the enactn~nt of the NWPA in 1983, only one of the five Directors of DOE's Office of Civilian Radioactive Waste Management {OCRWM) has held the position on a permanent basts. Inadequate progress toward an operating repository has concerned several Congressional observers, including Senator J. Bennett Johnston, Chairman of the Senate Energy and Natural Resources Committee. In February 1989 confirmation hearings for then-Secretary-of-Energy-designate James Watkins, Senator Johnston strongly criticized mounting cost projections and lack of progress in the program, and called for new and stronger management.

Whether the management structure of the repository development program should in fact be changed is a decision best left to oth~rs. The Commission be.licves that a finding on the likely availability of a repository should take management problems into account, but finds no basis to diminish the degree of assurance in its 1984 conclusion on this issue. Events since the suLmission of the AMFM Panel report do not indicate that there will be a fundamental change in the continuity of the manage:ment structure of the program any time soon. In addition, it cannot be assumeci that the program would encounter significantly less difficulty with a new management structure than it would continuing under the present one. Under either scenario, however, the Commission be1ieves it would be more prudent to expect repository operations after the 2007-2009 timetrame than before it. *Neitt.er the problems of a ne~ management structure nor those of the existing one are likely to prevent the achievem~nt of repository operations within the first quarter of the next century, however.

2.A.3.c. Continued funding of the nuclear waste management program Section 302 of the NWPA authorized DOE to enter into contracts with generators of electricity from nuclear reactors fer payment of 1.0 mill (0.1 cent} per kilowatt-hour of net electricity generated in exchange for a Federal Governmer1t commitment to take title to the spent fue1 from those reactor5. In the 1984 Waste Confidence Decis1on, the Commission noted that all such contracts with utilities had been executed. After the 1984 Decision, then-President Reagan decided that defense high-level wastes are to be collocated with civilian wastes from commercial nuclear power reactors. DOE's Office of Defense Programs is to pay the full cost of disposal of d~fense waste in the repository.

DOE is required under Section 302(a)(4) of the NWPA, as amended, " *** annually

[to] review the amount of the fees *** to evaluate whether collection of the fees will provide sufficient revenues to offset the costs .*** " In the June 1987 Nuclear Waste Fund Fee Adequacy Report, DOE recommended that the 1.0 mill pef kilowatt-hour fee remain unchanged. This assessment was based on the assumption that an MRS facility would open ir1 1998, the first repository would open in 2003, and the second repository in 2023. These assumptions do not reflect changes in the waste program brought al>cut by the NWPAA- enacted in December 1987. Two such changes with sign1ficar,t potential impacts were the

suspension of site-specific activities related to the second repository until at least 2007, and the linkage between MRS construction and operation and the granting of a repository construction authorization~ which will probably occur no earlier than 1998. * .

According to the Draft 1988 Mission Plan Amendment, DOE should currently be preparing the 1988 fee-adequacy analysis on the basis of the changes to the waste program brought about by the NWPAA. The new fee adequacy report will reflect overall program cost savings to the uti1ities resulting from: (lJ limiting site characterization activities to a singl~ site at Yucca Mountain, NV; and (2) the DOE Office of Defense Programs' sharing other program costs with generators of electricity 11

• • &on the basis of numbers of waste canisters har,dled, the portion of the repository used for civilian or defense wastes, and a the use of various facilities at the repository," in addition to paying for W activities solely for disposing of defense wastes. An addition~, factor which may eventually also contribute to the overall adequacy of Nuclear Waste Fund fees is the likelihood that a significant number ~futilities will request renewals of reactor operating lifetimes beyond their current OL expiration oates. OL renewal would provide additional time during which Nuclear Waste Fund tees could be adjusted, if necessary, to cover any future increase in per-unit costs of waste management and disposal.

The Corrmission recognizes- the potential for program cost increases over estimates in.the 1987 Nuclear Waste Fund Fee Adequacy Report. If there is a significant delay in repository construction, for example it is reasonable to 9

assume that construction costs will escalate. There may also be additional costs associated with at-reactor C:ry cask storage of spent fuel, if DOE does not have a*facility available to begin accepting spent fuel by the 1998 date specified in the NWPA. These costs would be further increased if one or mor~

licensees were to become insolvent and DOE were required to assum~ -

responsibility for storage at affected reactors before 1998.

The fu11 impac-c of the program redirection resulting from the NWPAA and the outlook for the timing of repository availability will continue to be assessed annually. If it does appear that costs will exceea available funds, there is provision in the NWPA for DOE to request that Congress adjust the fee to ensure full-cost recovery. Thus, the Commission finds no reason for changing its basic conclusion that the long-term. funding provisions of the Act should provide adequate financial support for the DOE program.

2.A.3.d. DOE's schedule for repository development At.the time that the 1984 Waste Confidence Decision was issued, the Nuclear Waste Policy Act of 1982, enacted in January 1963, had been in eftect for less than 20 months. The NUPA had established numerous deadlines for various repository program milestones. Under Section 112(b)(l)(B), the NWPA set the schedule fer recommendation of sites for characterization no later than January 1, 198~. Section 114(a)(2) specif1ed that no later than March 31, 1987s with

prov1s1on for a 12-month extension of this deadline, the President was to recommend to Congress one of the three charactenzed sites qua l ifit!d for an application for repository construction authorization. Under Section 114(d),

NRC was to issue its decision approving or aisapproving the issuance of a construction authorization not later than January 1, 1989, or the expiration of three years after the date of submission of the application, whichever occurs later. Section 302(a)(5J(B) required that contracts between DOE and utilities for payments to the Waste Fund provide that DOE will begin disposing of spent tuel or high-levei waste by January 31, 1998. _

In little more than a year after enactment, the schedule established by the NWPA began proving to be optimistic. In the reference schedule for the repository presented in the April 1984 Draft Mission Plan, for examplt, DOE showed a siip from January 1989 to August 1993 for the decision on construction authorization. =

In the 1984 Waste Confidence Decision, the Corrmission recognized the possibility cf delay in repository availability beyond 1998, and did not define its task as finding confidence that a repository would be available by the 1998 milestone in the NWPA. The Commission focused instead on the questicn of whether a repository would be available by the years 2007-2009, the date cited in the court remand as the expiration of the Ols for the Vermont Yankee and .

Prairie Island reactors. The NRC believed that the NWPA increased the chances tor r..epos itory availability within the fir.st few years of the twenty-first century, by specifying the means for resolving the institutional and technical issues most likely to delay repository completion, by establi~hing the process for comp.liance with NEPA, and by setting requirements for Federal agencies to cocpErate with DOE in meeting program milestones. Finding that no fundamer,tal technical breakthroughs were necessary for the repository program, the t;ommission predicted that 11

• • • selection and characterization c,f suitable sites and construction of repositories will be accomplished within the general time frame established by the Act [1998] or within a few years thereafter. 11 In January 1987, DOE issued a Draft Mission P1an Amendment to apprise Congress of significant developments and proposed changes in the repdsit~ry program. In the Draft Amendment, DOE announced a five-year delay in its schedule for repository availability from the first quarter of 1998 to the first quarter of 2003. DOE's reasons* for the delay included the need for more time for consultation and interaction with States and Tribes, the requirement in DOE 1 s I ,

1987 budget that funds not be used for drilling exploratory shafts in 1987, and I I

the need for more information than previously planned for site selection and the license application. The 1987 Draft Mission Plan Amendment set the second quarter of 1988 as the new date for exploratory shaft construction at the Yucca Mowitain site. When the final 1987 Mission Plan Amendment was submitted to Congress in June 1987, the schedule for shaft sinking at the Yucca Mountain site had slipped six months to the fourth quarter of 1988. Congress did not take action to approve the June 1987 Mission Plan Amendment as DOE had requested.

On December 22, 1987, the NWPAA was enactedo The NWPAA had its major impact on the repository program in susptnding site characterization activities at the Hanford and ueaf Smith County sites and authorizing DOE to characterize the Yucca Mountain site for development of the first repository.

DOE subsequently issued the Draft 1988 Mission Plan Amendment in June 1988, to apprise Congress of its plans for implementing the provisions of the NWPAA. In the Draft 1968 Mission Plan Amendment, DOE 1 s schedule for shaft sinking at Yucca Mountain had slipped another six months to the second quarter of 1989.

At this writing, the schldule for shaft sinking is November 1989, but NRC and DOE have agreed that DOE must first have a qualified QA program in place. DOE efforts to date to qualify its QA program have revealed i~sues requiring DOE attention before shaft excavation can begin, and it is possible that additional A issues affecting DOE s readiness will comet~ light.

1 w

Re'alistically, as the date for shaft sinkins slips, the date for repository operation must be adjusted to reflect this slip. This might not be the case if the original schedule had provided fer periods of time betweeli critical milestones that could absorb delays without affecting the schedule for repository operation. This is net the case wnh the schedule for the repository. The repository scheaule has always been agressive and highly success-oriented. In comments on tht Uraft 1988 Mission Plan Amendment, the Commis*sion noted that the schedule t.as not allowed adequately tor contir,gencies, and that, given tht::: compression in the schedule for near-term.

program milestones, DOE has not shown how 1t wi 11 be able to meet the 2003 mi 1estone for repository operat10n.

Another potential source of delay in repository availability may arise from NRC reguiations. The Commissiur: believes that current NRC rules are fully adequate to permit DOE to proceed to develop and submit a repository license A applications but further clarification of these rul~s is desirable to reduce W the time needed to conduct the licensing proceeding itself. Ir. order to meet the three-year schedule provided in the mJPA for a Commission decision on repository construction authorization, the NRC staff has undertaken to refine its regulatory framework on a schedule that would st'ill permit DOE to prepare and subm1t an application for repository construction authorization under its current schedule. The Commission fully expects to avoid delaying DOE s 1 program 1 while working to reduce the uncertainties in NRC regulatory requirements that cou1d become contentions in the licensing proceeding. Even if there are any delays resulting from a need for DOE to accommodate more specific regulatory requirements in its site characterization or waste package development programs, however, the Commission is confident that the time savings in the licer1sing proceeding will more than compensat~ for them.

In ~view of the delays in exploratory shaft excavation since the 20*03 date for repository availability was set, it may be optimistic to expect that Phase 1 of repository operations will be able to begin by 2003. As DOE's schedule for repository availa.bility has slipped a year and a half since the date was

f.

changed from 1998 to 2003, the earliest date for repository availability would probably be closer to 2005.

An institutional issue that may*furth*er aftect DOE's schedule is the status of EPA standards for disposal of spent fuel and* high-level waste. These standards are required under Section 121(a) of the NWPA. Under 10 CFR Section 60.112, NRC's overall postclosure system performance objective, the geologic setting shall be selected anci the engineered barrier system, which includ~s the waste package, must be designed to assure that releases of radioactiv~ materials to the accessible environment, following permanent closure, conform to EPA's standards. 40 CFR Part 191, the EPA standards, first became effective in November 1985. In July 1987, the U.S. Court of Appeals for the First Circuit vacated and remanded to EPA for further proceedings Subpart B of the high-level radioactive waste disposal standards. As noted under the aforementioned l.A.l., the standards have not been reissued.

A significant modification in the reissued EPA standard may affect the schedule for completing the design of the waste package and engineered barrier to the e~tent that design testing is planned to demonstrate compliance with the standards. DOE's current site characterization plans for demonstrating compliance with 40 CFR Part 191 are based on the standards as promulgated in 1985. DOE is proceeding to carry out its testing program developed for the original EPA standards. DOE has stated that if the EPA standards are changed significantly when they are reissued, DOE will reevaluate. the adequacy of its testing progra*m.

The Commission believes that DOE's approach is reasonable. Much of the information required to demonstrate compliance with the EPA standards is expected to remain the same regardless of the numerical level at which each standard is set. Considering the importance of developing the repository for waste disposal as early as safely practicable, it would be inappropriate for DOE to suspend work on development of engineered barri~rs pending reissuance of the standards, unless EPA had given clear indications of major changes i11 them.

1,nother possibility is that regardless of any changes in the repromulgated EPA 9

standards, they will be litigated in Federal court. Even if this proves to be the case, however, the Commission be1ieves that any such litigation will still' permit EPA to promulgate final standards well within the time needed to enable DOE to begin repository operations at any site within the first quarter of the twenty-first century.

Given the current pace of the DOE program, and assuming that the QA program can be qualified and shaft excavation begun within the next year, the Commission finds it is still possible, though less likely, that a repository at Yucca Mou'"rltain will be available by 2007-2009. To the extent that the expiration of the OLs for Prairie Island and Vermont Yankee continue to be relevant in this proceeding, the Commission believes it is more likely that a repository will be available by the anticipated dates of extension of the Ols for those plants in 2012-2014. If DOE determines that the Yucca Mountain site is unsuitable, the

Comffiission considers it reasonable to expect that DOE could make this determination by th~ year 2000 and have a repository at another site: avail~ble within the first quarter of the next.century.

2.B. Relevant Issues That Have Arisen since the Corrmission's Original Decision 2.8.1. NRC stated in 9-14-87 correspondence to Sen. Breaux on pending nucleGr waste legislation that under a program of single site characterization, 11 * *

• there may be a greater potential for delay of ultimate operation of a repository than th~re is under the current regime where three sites will undergo at-depth characterization

.befc,re a site is selected." To what extent does the NWPAA raise uncertainty about the identification of a technically acceptable site and potential delay in repository availability by limiting site characterization tc a single candidate site (Yucca Mt.) and by raising the possibility that a negotiated agreer.ient might influence repository site selection? Dees this uncertainty affect confidence in the availability of a repository by 2007-2009?

In providing comments to Cor,gress on proposed amendments to the: NWPAg NRC toe k the position that simultaneous site characterization of three sites, as required by the NWPA was not necessary to protect public health and safety.

9 NRC further stated that the adequacy of a *site for construction authorization would ultimately be determined in a licensing proceeding, and that NRC would only lice~se a site that satisfied NRC licensing requirements. As described next, the Comnaission believes that the mlPAA contains numerous provisions to ensure that a technically acceptable site will be identified.

The NWPAA does not reduce the scop~ of site characterization activities that -

DOE is authorized to undertake. The Amendments Act establishes a Nuclear.Waste Technical Review Boara composed of individuals recommended by the National Academy of Sciences and appointed by the President to evaluate the scientific validity of DOE activities, including sits characterization activities~ and to repcrt its findings at least semiannua 1ly to Congress and DOE. The Amendments Act also provides funding for technical assistance to States, tribes~ and affected units of local government. Fina11y, Section 160(1) of the NWPAA provides that "Nothing in this Act shall be construed to amend or otherwise detract from the licensing requirements of the NRC established in Title II of the Energy Reorganization Act of 1974 {42 U.S.C. 5841 et seq.). 11 In providing for these reviews and in reaffirming NRC' s l icer,sing authority, the NWPAA ensures that a candidate site for a repository must satisfy all NRC requirements and criteria for disposal of high-level radioactive wastes in licensed geologic repositoriese Section 402 of the NWPAA establishes the Office of the Nuclear Waste Negotiator,. The duty of the Negotiator- is to attempt to find a State or tribe willir;g to host a repository or MRS at a technically qualified site. The Negotiator may solicit comments from NRC, or any other Federal agency, on the

suitability of any potential site for site characterization. Section 403(d)(4) strengthens the Commission's confidence that a technically acceptable site will be identified by providing that*DOE may construct a repository at a negotiated site only if authorized by NRC. Given these safeguards on selection of a technically acceptable site, the Corrunission does not consider that the possibility of a negotiated agreement reduces the likelihocd of finding a technically qualified site.

The Commission raised the concern as early as April 1987 that under a program of single-site characterization, there could be considerable delay while characterization was completed at another site or slate of sites if the ir,itially chosen site were found inadequate. By terminating site characterization activities at alternative sites to the Yucca Mounta1n site, the NWPAA has had the effect of increasing the potential for delay in repository availcbility if the Yucca Mountain site proves unsuitable. The provision in the NWPAA for a Negotiator could reduce the uncertainty and associated delay in restarting the repository program by offering an alternate to.*the Yucca Mountain site; but at the time of this writings a Negotiator has r1o't been appointed.

It should be noted here that the repository prograrr. redirection under the rJWPAA does not, per se, have a significait impact on the Conmission 1 s assurance of repository availability by 2007-2009. The. Corrmission 1 s reservations about r~affirmir.g this timeframe derive from other considerations, including delays in sinkins shafts and the potential for other delays in meeting program milestones, that would have arisen without the NWPAA.

The Amendments Act does, however, effectively make it necessary that Yucca Mountain be found suitable if the 2007-2009 timefranE is to be met; this taryet period would almost certainly be unachievable if DOE had to begin screening to characterize and license another s1tc. Thus, confidence in repository availability by 2007-2009 implies confidence in the suitability of Yucca Mountain. The Conmission does not want its findings here to constrain in any way its regulatory discretion in a licensing proceeding. The Commission has therefore concluded that even if the program were on schedule, it would be inappropriate to reaffirm the 2007-2009 timeframe in the 1984 Decision.

2.B.2. In the Uraft 1988 Mission Plan Amendment, DOE stated that 11

• • • the data indicate that the Yucca Mountain site has the potential capacity to accept at least 70,000 MTHM [metric tons heavy metal equivalent]

of waste, but only after site characterization will it be possible to determine the total quantity ot' waste that could be accommodated at this site. 11

a. Do the issues of limited spent fuel capacity at Yucca Mountain, indefinite suspensio11 cf the second repository program, and tht:

likelihood that no more than one repository wi11 be available by

2007-2009 undermine the NRC's 1984 assurance thut "sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high level radioactive waste and spent fuel originating in such reactor and generated up to that time?"

b. Is there sufficient uncertainty in total spent fuel projections (e.g., from extension-of-11fe license amendments, renewal of operating licenses for an additior.al 20 to 30 years, or a new generation of reactor designs) that this Waste Confidence review should consider the institutional uncertainties arising from having to restart a second repository program? 41 2.B.2.a.

Although it will not be possible to determine whether Yucca Mountain can accommodate: 70,000 MTHM or more of spent fuel until after site characterization, the Corrmissior, cioes not believe that the question of repository capacity dt the Yucca Mountain site should be a major factor in the analysis of Finding 2. This is because it cannot be assumed that Yucca Mountain will ultimately undergo developme11t as a repository. The gf:neric issue of repository capacity does add to the potential need for more than one repository, however.

As not~¢ e~rlier, the NWPA established deadli~es for major milestonEs in the development of the first and the second repository programs. The Act also required NRC to issue a final decision on the construction authorization A application by January 1, 1989 for the first repository, and January 1, 1992 w tor the second (or within three years of the date of submission of the applications whtch~ver occurred later). The July 1984 Draft DOE Mission Plan 9

set January 1998 and October 2004 as the dates for conmencement of waste emplacement in the first and second repositcries, assuming that Congressional authorization was obtained to construct the second repository.

Thus, at the time the 1984 Waste Confidence Decision was issued, DOE was authorized and directed to carry out two repository programs under a schedule to make both facilities operational by 2007-2009. DOE and NRC were also working under the constraint, stil I in force under the NWPA as amended, that no more than 70,000 MTHM may be emplaced in the first repository before the second is in operation. Because DOE estimated at the time that commercial U.S.

nuclear power plants with operating licenses or construction permits would

• discharge a total 1601)000 MTHM of spent fuel, it appeared that at le:ast two repositories would be needed.

In the 1984 Waste Confidence Decision, reactors were assumed tu have a 40-year operating lifetime, and because the earliest licenses were issued in 1959 and the early l96U's, the oldest plants' licenses were due to expire as early as 1999 and 2000, as discussed in more detail below. Although it was expected

that at least one repository would be available by this time, there was also a limit as to how quickly spent fuel could be accepted by the repository. DOE had estimated that waste acceptance r.ates of 3400 MTHM per year could be achieved after the completion of Phase 2 of the first repository. This rate could essentially double if two repositories were in operation. At 6000 MTHM/year, it was estimated that alt the anticipated spent fuel could be emplaced in the two repositories by about the year 2026. This was the basis for the Corrmission's position that sufficient repository capacity would be available withira 30 years beyond expiration of any reactor OL to dispose of existing commercial high level waste and spent fuel originating in such reactor and generated up to that time.

In May 1986J hcwever, DOE announced an inaefinite postponement of the second repository program. The reasons for the postponement included decreasing forecasts of spent fuel discharges, as well as estimates that a second re:pository would not be nE!eded as soon as origimt11y supposed. ~/ith enactment of the mlPAA in DecembH 1987, DOE was required to terminate all site-specific activities with respect to a second re:pository unless such activities were specifically authorized and funded by Congress. The NWPAA required DOE to re'port to Congress on the need for a second re~csitory on or after January 1, 2007, but not later than January 1, 2010.

~urrent DOE spent fuel projections, based en the assumption of no new reactor orders, call for 87,0UO MTHM to have been *generated by the year 2036, including approximately 9000 MTHM of defense high-level waste.* With the likelihood that there will be: reactor lifetime extensions and renewals, ho\ti*ever, the no-new-ord~rs case probably underestimates total spent fuel discharges. Also, the NWPAA did net change the requirement that no more than 70,000 MTHM could be emplaced in the first repository before operation of the second. It therefore appears likely that t~m repositories will be needed to dispost:: of all the spent tuel and high-level waste from the current.g~neration of reactors, unless Ccngress provides statutcry relief from the. 70,000 MTHM limit, and the first site has adequate capacity to hold all of the spent fuel and high~level waste generated. The Commission believes that if the need for an additional repository is established, Congress wi 11 provide the needed institutional support and funding, as it has for the first repository.

For all but a few licensed nuclear power reactors, Ols will not expire uritil some time in the fir~t three decades of the twenty-first century. Severa*1 utilities are currently planning to have their Ols renewed for ten to 30 years beyond the ori9inal license expiration. At these reactors, currently available spent fuel storage alternatives effectively remove storage capacity as a potential restriction for safe operations. For these reasons, a repository is I no~ needed by 2007-2009 to provide disposal capacity within 30 years beyond  ! '

i expiration of most Ols. If work is begun on the second repository program in 2010 the repository could be available by 2035, according to OOE s estimate of 5

1 25 years for the time it will take to carry out a prugram for the second repository. Two repositories available in approximately 2025 and 2035, each with acceptance rates of 3400 MTHM/year within several years after commencement i

. -.- *..... : ~ .. I i'.

of operations, would provide assurance that sufficient repository capacity will be availab1e within 30 years of OL expiration for reactors to dispose of the spent fuel generated at their sites Lip to that time.

There are several reactors, however, whose OLs have already expired or are due to expire within the next few years, and which are now licensed or will be licensed only to possess their spent fue1. If a repository is not available until about 2025, these reactors may be exceptions to the second part of the Commission's 1984 Finding 2, which was that sufficient repository capacity will be avai1able within 30 years beyond the expiration of any reactor OL to dispose of the commercial high-level waste and spent fuel originating in such reactor and generated up to that time.

The basis for this second part of Finding 2 has two components: 1) a technical or hardware component; and 2) an institutional component. The technical com~onent relates to the reliability of storage hardware and engineered structures to provide for the safe storage of spent fuel. An example would be the ability of spent fuel assemblies to withstand corrosion withir. spent fuel storage pools, or the ability of concrete structures to maintain their integrity over- long periods. In the 1984 Decision, the Commission found confidence that available technology could in effect provide for safe storage of spent fuel for at least 70 years.

The Commission's use *of the expression 11 30 years beyond expiration of any reactor operating license" in the 1984 Finding was based on the understanding that the license expiration date referred to the scheduled expiration date at the time the license was issued. It was also based 011 the understanding that, in order to refuel th~ reactor, some spent fuel would be discharged from the reactor within twelve to eighteen months after the start of full power operation.

Thus, the Commission understood that. depending on the date of the first reactor outage for refu~ling, some spent fuel would be stored at the reactor site for most of the 40-year terr.1 of the typical OL. In finding that spent fuel could be safely stored at any reactor site for at least 30 years after expiration of the OL for that reactor, the Com.ission indicated its expectation that the total duration of spent fuel storage at any reactor would be about 70 years.

Taking the earliest licer,sed power reactor, the Ciresden 1 facility licensed in 1959, and adding the full 40-year operating license duration for a scheduled license expiration in the year 1999, the Cor11T1ission's finding would therefore entail removal of all spent fuel from that reactor to a repository within the suC'Ceeding 30 years, or by 2029. Even if a repository wer*e not available until the end of the first quarter of the twenty-first century, DOE would have at least four years to ship the reactor's 683 spent fuel assemblies, totalling 70 metric tons initial heavy metal (MTIHM), from Dresden 1 without exceeaing the Commission's 30-year estimate of the maximum time it would take to dispose of the spent fuel generated in that reactor up to the time its OL txpired. (MTIHM

is a measure of the mass of the uranium in the fuel {or uranium and plutonium if it is a mixed oxide fuel) at the time the fuel is placed in the reactor for irradiation.) '

• Considering ~he experie~ce from the 1984 and 1985 campaigns to return spent tuel from the defunct West Valley reprocessing facility to the reactors of origin, 70 metric tons of BWR spent fuel can easily be shipped within four years. The first campaign, involving truck shipments of 20 metric tons from West Valley, NY, to Dresden 1 in Morris, IL, took eleven months. The second, involving truck shipments of 43 tons from West Valley to the Oyster Creek reactor in Toms River, NJ, took six months. {See Case Histories of West Valley Spent Fuel Shipments, Final Report, NUREG/CR-4847 WPR-86{6811)-1,

~- 2-2.) This estimate assumes, moreover, that no new transportation casks, designed to ship larger quantities of older, cooler spent fuel, for example, would be available by 2025.

The institutional part of the question concerning the availability of sufficient repository capacity required the Commission to make a finding as to whether spent fuel *1n at-reactor storage would be safely maintained aftt=r the expiration of the facility OL. This question related to the financial and managerial capability for continued sate storage and monitoring of spent fuel, rather- than to the capability of the hardware involved. The Commission determined, in Findirig 3 of its 1984 Decis*ion, that spent fuel will be managed

'in a safe manner until sufficient repository capacit,y is available to assure safe disposal, which was expected under Finding 2 to be about 30 yecrs after the expiration of any reactor OL. (See discussion of Finding 3 below for addition*ar discussion of the institutional aspects of sperat fuel storage pending the availability of sufficient disposal capacity.)

The availability of a repository within the first quarter of the twcr1ty-first century holds no significant adverse implications for the Commission's institutional concern that there be an organization with adequate will and wh~rewithal to provide continued long-term storage after reactor operation.

This could be a concern if a significant number of reactors with significant quantities of spent fuel onsite were to discontinue operations indefinitely between now and 1995, and the utility-owners of these reactors did not appear to have the resourc~s to manage them safely for up to 30 years pending the assumed availability of a repository in 2025.

No such development is likely. No licenses for curr~ntly operating commerci~l nuclear reactors are scheduled to expire ur1t i 1 the year 2000, and most such licenses will expire during the first two decades after 2006. {See Nuclear Regulator~ Commission 1989 Information Digest, NUREG-1350, Vol. 1, p. 33.J The availabil1ty of the first repository by 20~5, and of* a second repository within one or two decades thereafter, would provide adequate disposal capacity for timely removal of the spent fuel generated at these reactors.

There are several licensees, however, whose authority to operate their commercial reactors has already been terminated. These are Indian Point 1, Dresoen 1~ Humboldt Bay, and Lacrosse. They are also thE only licensed power reactors that are retir~d with spent fuel being stored onsite. Assuming conservatively that a repository does not become operational until 2025, it appears likely that spent fuel wi11 remain at these sit~s for more than 30 years beyond the time their reactors were ind~finitely shut down, at which point their operating licenses could be considered to have effectively expired, although they will continue to hold a possession license for the storage of the spent fuel.

• Ir, considering the means and motivation of the owner of an indefinitely retired A reactor to proviae safe long-term storage, the Commission believes it is useful

• to Gistinguish between the owner with only one reactor, and the owner of a reactor at a multi-unit site or an owner with operating reactors at other sites. In the case of a retired reactor at a multi-unit site, the owner would have a clear need to maintain the safety of storage at the retired reactor sµfficiently to permit continued generatioh at the site. If the owner of the retired reactor al so owned other reactors at other sites, the spent t*ue 1 at the retired reactor could be transferred, if necessary, to the storage facilities of oth~r units still under active management. Of the four reactors just cited 1 Indian Point 1 and Dresden 1 fit this description, and the sibling reactors at their sites are operating under licenses that do not expire until well beyond the year 2000 -- that is, *wel 1 within the post-OL period during which the

~ommission has found that spent fuel could be safely stored penair.g the availability of a repository.

For the Lacrosse and Humboldt Bay reactors, the Commission is confident that, eYen if a repository is not available within 30 years fo11owing their A retirement~ the overall safety and environmental acceptability of extended

• spent fuel storage wi 11 also be maintained for these exceptiohal cases.

Because there will still be an NRC possession license for the spent fuel at these facilities, the Commission will retain ample regulatory authority to r~quire any measures, such as removal of the spent fuel remaining in storage pools to passive dry storage casks, that might become necessary until the time that DOE assumes title to the spent fuel under contracts pursuant to the NWPA.

It should also be borr1e in mind that Humboldt oay and Lacrosse are both sn:all early reactors, and their combined spent fuel inventory totals 67 metric tons of initial heavy metal. (See SKent Fuel Storage Requirements {DOE/RL 88~34)

October 1988, Table A.3b., pp *

• iS~A.17.) If for any reason not now foreseen, this spent fuel can no longer be managed by the owners of these reactors, and DOE must assume responsibility for its management earlier than currently plannedi this quantity of spent fuel is well within the capability of DOE to manage onsite or offsite with available technology financed by the utility either directly or through the Nuclear Waste Fun~.

Nor does the Commission see a significant safety or environmental problem with premature retirements of additional reactors. In the Commission's original Waste Confid~nce Decision, it found reasonable assurance that spent fuel would

have to spend nti more than 30 years in post-operational storage pending the availability of a repository. For a repository conservatively assumed to be available in 2025, this expected 30-y~ar maximum storage duration remains valid for most reactors, and would be true for all reactors thdt were prematurely retired after 1995. Based on the past history of premature shutdowns, the Commission has re:ason to believe that their likely incidence auring the next six years wi 11 be small as a proportion of total reactor-years of operation.

Historically, 14 of the 125 power reactors that have operated in the U.S. over the past 30 years have been retired before the expiration of their ope:rating licenses. These early retirements included many low-power developmental reactors, which may*make the ratio of 14 to 125 disproportionately high as a basis for projecti~g future premature shutdowns.

The Commission is aware of currently operating reactors that may be retired before thf expiration of their Ols, including: the recently-licensed Shoreham reactor, which has generated very littie spent fuel; the Fort St. Vrain high-temperature gas-cooled reactor, which its owner plans to decommiss1on; and the Rancho Seco reactor, which has operated for the past 12 years and may or may not be retired. Assuming that all these and perhaps a few more reactors do retire in the next several years, their .total spent fuel storage requirements would not impose a.n unacceptable safety or t:nvironmental problem, even in the unlikely event that all these reactors' owners were rendered financially CJr otherwise unable to ~rovide adequate care,* and DOE w*re required to assume custody earlier than currently envisior:r:d under the NWPA.

Licensed_ nQn-power research reactors provide an ~ven more manageable case. DOE owns the fuel for almost all of these reactors many of which have been 9

designed with lifetime cores that do not require periodic refueling. For thost reactors that do discharge spent fuel, DOE accepts it for storage or reprocessing, and not more thar. an tstimated 50 kilograms of such spent fuel are generated annually.

Thusj given these worst-case projections, which are not exp~ctations but bounding estimates the Commission finds that a de1ay in repository 11 availability to 2025 will not result in significant safety or environmental impacts due to extended post-operational spent fuel storage. To put it another wayj the Commission* is confident that, even it a repository were not available within 30 years after the effective expiration of the Ols for both currently retired reactors and potential future reactor retirements through 1995, the overa11 safety and environmental impacts of extended spent tuel storage would be insignificant.

2.B..2.b.

Although it is clear that there is uncertainty in projections of total future spent fuel discharges, it is not clear that the institutional uncertainties arising from having to restart a second repository program should be considered in detail in the currtnt Waste Confidence Decision review.

License renewals would have the effect of increasing requirements for spent fuel storage. Th~ Commission understar.us that some utilities are currently planning to seek re~ewals for 30 years. Assuming for the sake of establishing a conservative upper bound that the Commission does grant 30-year license rene~als, the total operating lite of some reactors would be 70 years, so that the spent fuel initially generated in them would have to be stored for about 100 years if a repository were not available until 30 years after the expiration of their last Ols.

Even under th~ conservative bounding assumption of 30-year license renewals for all reactors, however, if a repository were availabie within the first quarter of the twenty-first century, the oldest spent fuel could be shipped off the sites of all currently operating reactors well before the spent fue:l initially a generated in them reached the age of 100 years. Thus, a second repository, or W aaditional capacity at the first, would be needed only to accommodate the additional quantity of spent fuel generated during the later years of these reactors' operating lives. The availability of a secono repository would permit spent fuel to be shipped oftsite well within 30 years after expiration of these reactors 1 OLs. The same would be true of the spent fuel discharged trom any new generation of reactor designs.

In sum, although son,e uncertainty in tota 1 spent fuel proj1::ctions does arise from such developments as utilities' planning renewal of OLs for an additional ZO to 30 years~ the Conunission believes ttiat this Waste Confidence review need not at this time consider the institutional uncertainties arising from having to restart a second repository program. Even if work on the second repository program is.not begun until 2010 as contemplcted under current law, there is sufficient assurance that a s~cond repe;sitory will be available in a timeframe that wou lei not constrain the removal of spent fue 1 from any reactor within 30 years of its licensed life for operationo -

2.8.3. Are early slippages in the DOE repository program r.:i1estones significant encugh to affect the Commission's confidence that a repository will be available when needed for health and safety reasons?

The 2007-2009 timt::frame imposed on the Commission by the May 23, 1979 remand by the Court of Appeals was based on the scheduled expiration of the Ols for the Vermont Yankee and Prairie Island nuclear reactors. The specific issues remanded to the Commissior1 were: lJ whether there is reasonable assurance that an offsite storage solution will be available by the years 2007-2009 (the expiration of the plants' operating licenses); and, if not, 2) whether there is reasonable assurance that the fuel can be stored safely at the sites beyond tho'"se cia tes o There was no finding by the Court that public health and safety required offsite storage or disposal by 2007-2009. In directing the Commission to address the safety of at-reactor storage beyond 2007-2009, the Court recognized

the possibility that an otfsite storage or disposal facility might not be available by then. In any case, the years 20C7-2009 no longer have the same meaning for this proceeding as they had in l!:184; the Ols for Prairie Island and Vermont Yankee have been or will soori be extended to 2012-2014, on the basis of NRC's past willingness to approve a 40-year operating lifetime from the date of issuance of the OL.

The Commission has not identified a date by which a repository must be available for health and safety reasons. Taking into account institutional requirements for spent fuel storage, the.Conmission found, under Finding 3 in the 1984 Waste Confidence Decision, that spent fuel would be safely managed until sufficient repository capacity is available. The Coll'lllission also found, how~ver, that in effect, under the second part of Finding 2, safe management would not need to ccntinue for more than 30 years beyond expiration ot any r~actor's OL, because sufficient re~ository capacity was expected to become available within these 30 years. Considering that spent futl would not have to be stored more than 30 years after any reactor's 40-year OL expirat10r1, and taking into account the .technical requirements for such storage 5 the Ccnimission went on to determine under Finding 4 that, in effect, spent fuel could be safely stored for at least 70 years aft~r discharge from a reactor. Thus, the Commission's 1984 Decision did not establish a time when sufficient repository capacity would be required; it established a minimum period during which storage would continue to be sate and environmentally acceptable pending the expected aviai"iability. of sufficient repository capacity.

Bearing in mind that reactor fac11ities were originally designed and Ols issued for~ licensed life for operation of 40 years, the Commission is proposing elsewhere 1n this Federal Register notice a clarifying revisio~ of Finding 4 to say that spent fuel can be safely stored at a reactor for at least 30 years after the "licensed life for operation" of that reactor. Implicitly, the proposed use of the phrase "licensed life for operation" clarifies that the Commission found in 1984 that NRC licensing requirements for reactor facility design, construction, and operation provide reasonable assurance that spent fuel can be stored safely and without significant environmental impacts for at lt:ast the first 40 years of the reactor 1 s life. The Commission's proposed findin9 also implies that, barring any significant and pertinent unexpected

• developments, neither technical nor institutional constraints would adversely affect this assurance for at least another 30 years after that first 40 years.

Another implication of this revised finding is that, where a utility is able to meet NRC requirements to extend that reactor's operating lifetime by license renewal, spent fuel storage for at least 30 y~ars beyond the end of the period of extended life wil I also be safe and without significant environmental impacts.

In assessing the effect of early slippages in DOE repository program milestones, th1:refore, the most important consideration is not the earliest date that an operating license actually expired, but the earliest date that an UL was issued. ThE earliest OL to be issu~d was for Dresden 1 in 1959, follcwed by a number of reactors licensed for operation in 1962. The Ols for

all of the 111 power r~actors now licensed to operate are currently scheduled to expire sometiQe within the first three decades of the twenty-first century, which is also the period in which their currently licensed life for operation would end. (See Nuclear Regulatory Commission 1989 Information Digest, NUREG-1350, Vol. 1, p. 33.J Thus, conservatively assuming here that there wi11

. be no license renewals, thf earliest timeframe when a repository might be needed to dispose of spent fuel from the majority of reactors is 2029-2050.

As proposed in the first part of Finding 2, the Commission has reasonable assurance that a repository will be available within the first quarter of the twenty-first century. Even if a repository were not available until 2025, this would be several years before the beginning of the earliest timeframe within which, based on an assumed 30-yeor storage after an assumed 40-year licensed ..

life of reactor operation, a repository might be needed for spent fuel ._,

disposal. Thus, early slippages in DOE's program milestones do not affect the Commission's confidence that a repository will be avaiiable within that timeframe.

2.B.4. N~C has stated that the 3- to 4-year license application review schedule is optimistic, and that for NRC to meet this schedulej DOE must submit a complete ano high-quality license application. In the September 16, 1988 NRC comments .to DOE on the Draft 1988 Mission Plan Amendment, *the Corrmissiori requested that DOE acknowledge its commitment to develop this comp1ete and high-qua1ity ~pplication, "even if this woulci result in longer times to collect the necess&Y~

information and subsequent delays in submitting the lic~nse application. 11

~iill NRC's emphasis on the completeness and quality of the license

~pplication have a significant effect on the timing of the submittal e

of the license application and subsequent licensing proceeding to .

grant construction authorization iri time for repository availability by 2007-2009?

As the NRC indicated to DOE in NRC's October 25, 1985 comments on the draft PDS, the three-year statutory schedule for the NRC licensing proceeding on the application for construction authorization is optimistic. The Commission has sought ways to improve the prospects for meeting this schedule, for example by developing the LSS for expedit~d aocument discovery during the licensing proceeding.

In the same correspondence on the PDS, NRC also stated that the adequacy of th~ three-year review period depends on DOE's submittal of a complete and high-quality application. A license application suppqrted by inadequate data may lead to findings during the licensing proceeding that the results of certain tests cannot be admitted as part of the license application. If it is not possible to repeat the tests in question, NRC may have no alternative but

to deny the application -- with a consequent loss of program mom~ntum and considerable financial cost.

NRC recognizes that emphasis on. a complete and high-quality license application may cause son,e near-term delays that could make it difficult to achieve the current schedule calling for submittal of the construction authorization application in 1995. Notwithstanding any such delays, the Commissicn has reasonable assurance that if the Yucca Mountain site is not found unsuitable, a repository at that site could be available by the 2012-2014 timeframe, consistent with the rescheduled OL expiration dates for Prairie Island and Vermont Yankee. For reasons discussed previously, this timeframe now appears more relevant to the Waste Confidence proceeding than the 2007-2009 timeframe.

In any case, the Commission remains convinced that the benefits to the repository program of submitting a high-quality license application would outweigh the cost cf delay in preparing the application. NRC has always placed great emphasis on early resolution of potential lice~sing issues in the interest of expeditious review of the license application and timely repository availability. It is in the same spirit of timely repository operation that the t.:Qmmissiorr is urgir1g greater attention to quality than to meeting the schedule for submittal of the license application. NRC beli~ves that a complete and high-quality license application offers the best available assurance that timely repository licensing and operation can bE! achieved.

In addition to expediting th~ review of the application, a hi_gh-quality lice:nse application and site characterization program should enhance overall confidence that any site granted a ccustruction authorization will prove to be relic.ble during the.period of performance confirmatior** It will also increase public confidence that the program is being carried out in a thorough and technically sound manner.

2.C. Conclusion on Finding 2.

In reexamining the technical and institutional uncertainti~s surrounding the timely developme:nt of a geologic repository* since the 1984 Waste Confidence Decisiong the Co1T111ission has been led to question the conservatism of its expectation that a re:pository would be available by 2007-2009.

At the time of the 1984 Decision, the Corrmission said that timely attainment of a repository did not require DOE to adhere strictly to the milestones set out in the NWPA, and there would be delays in some milestones. It did not appear to the Commission at the time that delays of a year or so in meeting any of the milestones would delay the date of repository availability by more than a few years beyond the 1998 deadline specified in th~ Act.

Since then, however, several developments have made it apparent that delays of more than a few years are to be the norm rather than the exception in the early years of this program. There has been a five-year slip in DCEus estimate of

- 54 =

repository availability from 1998 to 2003, and DOE has been unable to meet such near-term repository program mi lestor!es as excavation of the exploratory shaft and the start of in-situ testing. There remains the possibility that potential repos1tory availability at the Yucca.Mountain site will be further cielayea due to unforeseen problems during site characterization. These developments do not in themselves rule out the possibility that DOE will stil_l be able to achieve repository operation by 2007-2009, but they do suggest that to expect repository operation by then may be optimistic.

In the Commission's view, 2012-2014 is now a more relevant timeframe than 2007-2009. When the Court issued its 1979 remand, 2007-2009 was when the OLs for Vermont Yankee and Prairie Island were scheduled to expire. The operating licenses for the two Prairie Island units have since been extended to 2013 and 2014, and the operating license for Vermont Yankee is eligible for extension to 2012. These extensions have been made available under thE: Commission's policy 9 that the allowable operating life of a licensed reactor should not be toreshortened b~cause of construction delays. It therefore seems reasonable tor NRC to make its finding on the: timing cf repository availability by 2012-2014:i rather than by 2007-2009. The Commission has a greater degree of assurance that,if the Yucca fd1ountain site is suitable, a repository would be available there by 2012-2014.

For the sake of cor.servatism howeverJ the suitability of Yucca Mountain should 5

not be assumed. Yucca Mountain is now the only candidate site availabl~; the UWPAA required that DOE terminate site cha*ractenzation activities at all sites other thc11i the Yucca Mountain sitE::. In effectj the 2007-09 schedule for repository availability could be met only if Yucca Mountain surviv~d the repository_develc,pment process as a licensed site. If this site wt:re found to be unlicenseable or otherwisE:: unsuitables characterization would have to begin at another site or suite of sites, with consequent further delay in repository availability. The final decision on the suitability of the site to proceed to -

licensing and repository development will rest with DOE, but the position ot the NRC staff wil I figure in that decision. The staff will net be able to make a recommendation to a licensing board to authorize repository construction at Yucca Mountain until all site characterization activiti~s have been completed.

DOE might thus be unable for several more years to determine whether there will in fact have to be a delay to find and characterize another site.

Another reason the Commission is unwilling to assume the suitability of Yucca Mountain is that NRC must be mindful of pres~rving all its regulatory options

-- including~ reconunendation of license application denial -- to assure adequate prc,tectiori of public health and safety from radiological risk. In our view, it is essential to dispel the notion that for schedular reasons there is no alternative to the currently preferred site. This view is consistent with pa~t Commission statements that the quality of DOE's preparations for a license application should take precedence over timelin~ss where the two conflict. It is also consistent with the view that because we are making predictions about completion dates for a unique and comp1ex enterprise at least some 20 years

hence, it is more reasonable to express the timescale for completion in decades rather than years.

In order to obtain a conservative upper bound for the timing of repository availat.ility, the Commission has made the assumption that the Yucca Mountain site wil I be found to be unsuitable. If DOE were authorized to ir.itiate site screening for a repository at a different site in the year 2000, the Commission believes it reasonable to expect that a repository would be available by the year 2025. This estimate is based on the DOE position that site screening for a second repository should begin 25 years before the start of waste acceptanceo lhe consideration of technical and institutional issues.presented here has founc, none that would preclude the availability of a repository within this timeframe.

For the second part of its 1984 finding on repository availability, the Commission found reasonable assurance that sufficient repository capacity will be available within 30 years beyond expirat ior1 of any reactor OL to dispc;se of ex_isting commercial high level waste and spent fuel originating in that reactor ari.d generated up to that time. The; Commission believes that this finding should also be modified in light of developments since 1984.

Hhen the Commission made this finding, it took into consideration both technical and institutional concerns. The technical concern centered on the ability of the spent *fuel and the engineered at-reactor storage*facilities to meet the requirements for extended post-operational storage before shipment for disposal. The institutional question concerned whether the utility currently responsible for post-operational at-reactor storage, or some substitute organization, would be able to assure the continued safety of this storage. ,-

- The principal new developments since 1984 that bear on these questions are: 1) that dry spent fuel storage technologies have become operational on a commercial scale; and 2) that several utilities are proceeding with plans to seek renewals of their OLs, with appropriate plant upgrading, for an additional period up to 30 years beyond the 40-year term of their current licenses. The accumulation of operating experience with cry-cask storage>> a technology requiring little active long-term mainteriance, provides additional assurance that both the technical and institutional requirements for extended post-operational spent fuel storage will be met. License renewals, however, would have the eftect of increasing requirements for both the quantity and 1.

possibly the duration of storage. If the Commission were to grant 30-year license renewals, the total operating life of some reactors coulci be 70 years, so that the spent fuel initially generated in such reactors would have to be stored for about 100 years, it a repository were not available until 30 years af~er the expiration of their iast OLs. This raises the question as to whether that spent fuel, anci the hardware and civil engineering structur~s for storing 1t, can continue to meet NRC requirements fur an additional 30 years beyond the period the Commission supp~rted in 19840 i

i

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tor all the reason5 cited in the discussiori of Finding 4, the Commission believes there is ample techriical basis for confidfnce that spent fuel can be stored safely and without significant environmental impact at these reactors for at least 100 years. If a repository were available within the first quarter of the twenty-first centuryi the oldest spent fuel coulG be shipped off the sites of all currently operating reactors well before the spent fuel initially generated in them reached the age of 100 years.

The need to consider the institutional aspects of storage beyond 30 years after OL expiration was not in evidence in 1984 because the Commission was confident that at least one repositor} would be available by 2007-2009. On that schedule, waste acceptance of spent fuel from the first reactor whose operating license had expired {Indian Point 1, terminated in 1980) could have begun within 30 years of expiration of that license. If a repository does not prove *.

to be available until 2025, however, it would not be available within 30 years W of the time that OLs could be considered effectively to have expired tor Indian Point 1 and the three other plants with spent fuel onsite that were retirea before the end of their licensed 1ife for reactor operation. The same would be true of any additional reactors prematurely retired between now and 1995, when the 30-year clock starts for the availability of a repository by 2025.

Premature shutdowns notwithstanding, the Commission has reasons to be assured that the spent fuel at all of these reactors will be stored safely and without significant environmental impact until sufficient repository capacity becomes available.

Considering first the technical reasons for this assurance, it i5 important to recognize that each of these reactors and its spent fuel storage installation were origit1ally licensed in part on the strength cf the applicant's showing that the systems and components of concern were designed and built to assure safe operatiori for 40 years under expected normal and transient severe conditions. All of the currently retired reactors have a sigr,1ficant portion -

of that 40-year expected life remaining and all have only small quantities of 9

spent fuel onsite in storage installations that were licensed to withstand considerably larger thermal and radiation loadings from much greater quantities of spent fuel. Of the four reactors currently retired with spent fuel onsitei th~ two with far the longest terms of operation, Lacrosse and Dresden, were operated for 19 and 18 years, respectively.

For the continued safe management of the spent fuel and storage installations at any existing or potential prematurely retired plant, the Ccmmission believes it can reasonably rely on the contir,ued structura 1 and functional integrity of th~ plant's engineered storage installations for at least the balance ot 1ts originally licensed life as if the OL were still in effect. This is to say that for the purposes of Finding 2, r.o foreseeable technical constraints have artsen to disturb the Commission's assurance that spent fue1 storage at any reactor will remain safe and environmentallJ acceptable for at least 30 years after its licensed life for operation, regardless of whether its OL has been terminated at an earlier date.

rhe Commission also sees no insurmountable institutional obstacles to the cor1tinued safe management of spent fuel during the remainder of any shutdown reactor's initially licensed lite foe operation, or for at least 30 years thereafter. Because there will stil I be an NRC possession license tor the spent fuel at any reactor _that has indefinitely suspended operations, the Commission will retain ample regulatory authority to require any measures, such as removal of the spent fuel remaining in storage pools to passive dry storage casks, that might appear necessary after an OL expires. Even if a licensed utility were tu become insolvent, and responsibility for sper1t fuel management were trdnsferred to DOE earlier than is currently plar;ne*a, the ColMlission has no reason to believe that DOE would have insufficient Nuclear Waste Fund resources or otherwise be unable to carry out any safety=related measures NRC considers necessary. Thus, in the case of a premature reactor retirement, the Commission has an adequate basis, on both technical and institutional grounds, for reasonable assurance that spent fuel can be stored safely and without significant environmental impacts for at least 30 years beyond not only the actual end of that reactor's OL, but the end of its originally licensed life for operation.

c.<,

In* sum, considering developments since 1984 in the repository development program, in the operating performance cf U.S. power reactors, and in spent fuel storage technology, the Commhsion finds that: (1,l thE: overall public healthsi safety, and environmental impacts of the possible unavailability of a repository by 2007-2009 would be insignificant; and (2) neither 30-year renewals of reactor licenses nor a delay in repository availability to 2025 will result in significant safety or environmental impacts from extended post-operational spent fuel storage.

The Commission finds ample grounds for its prc,posed revised findiri~s on the expected availability of a repository. The institutional support for the repository program is well-established. A mechanism for funding repository program activities is in place, and there is a provision in ihe NWPA tor adjusting, if necessary, the fee paid by utilities into this fund. Congress has continued to provide support for the repository program in setting miiestones, delineating responsibilities, establishing advisory bodies, and providing a mechanism for dealing with the concerns of States and affected Indian tribes.

Technical support for extended spent fuel storage has improved since 1984.

Considering the growing availabiiity, reasonable cost, and accumulated operatin~ experience with new dry cask spent fuel storage technology since th~n, the Commission now has even greater assurance that spent fuel can be stored safely and without significant environmental impact for at least 30 years after the expected expiration of any reactor's OL. Where a reactor's OL has been terminated before the expected expiration date, the Coliilllission has an adequate basis to reaffirm what was implicit in its initial concept, namely:

that regardless of the actual date when the reactor's operating authority effectively ended, spent fuel can be stored safely and without significant

. -~ . . ...

environmental impacts for at least 30 years beyond that reactor's licensed life for operation.

There is thus no foreseeable health and safety or environmental requirement that a repository be made available within the 2007-2009 timeframe at issue in the Commission's original proceeding. Nor does the Corranission see a radiological safety or environmental requirement for repository availability at the end of th~ expected revised timeframe of 2012-2014 for the expiration of the Prairie Island and Vermont Yankee Ols.

Indeed, the Commission sees important NRC mission-related grounds for avoiding any statement that repository operation by 2007-2009 is required. Geologic disposal of high-level radioactive wastes is an unprecedented endeavor. It requires reliable projections of the waste isolation performance of natural and engineered barriers over millennia. After the repository is sealed, retrieval a of the emplaced wastes will no longer be practicable, anci the commitment of

• wastes to that site will, by design, be irreversible. In DOE's testing, both in the laboratory arid ,1.t the candidate repository s1te, in its deve1opment of facility and waste-package designs and in all other work to demonstrate that 5

NRC requirements will be met for a repository at Yucca Mountain, the Commission believes that the confidence of beth NRC and the public dep~nds less on meeting the schedule for repository operation than on meeting safety requirements and doing the job right the first time. Thus, given the Commission's assurance that sper1t fuel can safely be stored for at least 100 year~ if necessary, it appears prudeut for a 11 concerned tCJ prepa.re for the bett,er-li11derstood and more manageable problems of storage for a few more years in o~der to provide .

additional time to assure the success of permanent ge~logic disposal.

This is not to say that the Commission is unsympathetic to the need for timely progress toward an operational repository. It is precisely because NRC is so confident of the national commitment to achieve early repository operation that the Commission believes it no longer need add its weight to the considerable -

pressures already bearing on the DOE program. There is ample institutional impetus on the part of others, including Congress, the nuclear power industry, State uti 1ity rate regulatory bodies, and consumers of nuc. lear-gerie1*ated power, toward DOE achievement cf scheduled program milestones. With continuing confidence in the technical feasibility of geologic disposal, the Conm1ission has no reason to doubt the institutior.al commitment to achieve it in a timeframe well before it might become necessary for safety or environmental reasons. Indeed, the Commission believes it advisable not to attempt in this review a more precise NRC estimate of the point at which a repository will be needed for radiological safety or environmental reasons, lest this estimate itself undermine the commitmf:nt to earlier achievemf:nt of repository operations. The Co11111ission continues to hope that a repository will in fact be available by 2007-2009~ and has found nothir.g to date that would conclusively prevent this achievement.

To find reasonable assurance that a repository will be available by 2007~2009 5 however, is a different and more consequential proposition in the context of

this review. In light of the delays the program.has encountered since its inception, and the regulatory need to avoid a preciature commitment to the Yucca Mountain site, the Commission cannot prudently describe a basis for assurance that the current DOE schedule for repository operation in £003 will net slip another tour to six years under.any reasonably foreseeable circumstances. The Commission could mere easily substantiate a finding that a repositc,ry will be available within the revised 2012-2C14 timeframe that would be created by extending the Ols of the reactors in question when the Waste Confidence proceeding bega~. Even this revised estimate, however, could too easily be misi~terpreted as an NRC estimate of the time at which continued spent fuel storage at these sites would be unsafe or environmentally significant. The Commission's enhanced confidence in the safety of extended spent futl storage provides adeqµate grounds for the view that NRC need not at this time define more precisely the period when, for reasons related to NRC's mission, a permanent alternative to post-operational spent fuel storage will be needed.

The Commission therefore proposes the following revision of its original Finding on when sufficient repository capacity wi 11 be available:

The Commission finds reasonable assurance that at least one mined geologic reposi_tory wi 11 be available within the first quarter of the twenty-first

'Fr' century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the commercial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time.

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Original Finding 3: The Commission finds reasonable assurance that high-level radioactive waste and spent fuel will be managed, in a safe manner until sufficient repository capacity is available to assure the sat*e disposal of a.li high-level wast~ and spent fuel.

Proposed Finding 3: Same as above 3.A. Issues Considered in Commission's 1984 Decision on Finding 3 In the Commission's discussion of Finding 3 in its Waste Confidence Decision (49FR 34658, August 31, 1984), in Section 2.3 'Third Commission Finding,' the Commission stated, Nuclear power plants whose operating licenses expire after the years 2007-09 will be subject to NRC regulation during the entire period between -

their initial operation and the availability of a waste repository. The Commission has reasonable assurance that the spent fuel generated by these licensed plants wi 11 be managed by the 1icerisees in a. safe manner.

Compliance with the NRC regulations and any specific license conditions that may be imposed on the licensees will assure adequate protection of the public health a.nd safety. Regulations primarily addressing spent fuel storage include 10 CFR Part 50 for storage at the reactor facility and 10 CFR Part 72 for storage in independent spent fuel storage installations

{ISFSls). Safety and environmental issues involving suc.h storage are addressE:d in licensing reviews under both Parts 50 and 72, and co1,tinued storage operations are auditE:d and inspected by NRC. NRC s experience in 1

more than 80 indivioual evaluations of the safety of spent fuel storage shows that significant releases of radioactivity from spent fuel under licensed storage conditieins are extremely remote.

Some nuclear power plant operating licenses expire before the years a 2007-09. For technical, economic or other reasons, other plants may

• choose, or be forced to terminate operation prior to 2007-09 even though their operating licenses have not expired. For ~xample, the existence of a safety problem for a particular plant could prevent further operation of the plant or could require plant modifications that make continued plant operation uneconomic. The licensee>> upon expiration or termination of its 1i cense, may be granted ( unaer 10 CrR Part 50 or Part 72) a license to retain custody of the spent fuel for a specified term (until repository capa~ity is available and the spent fuel can be transf~rred to DOE under Sec. 123 of the Nuclear Waste Policy Act of 1982) subject to NRC regulations and license conditions needed to assure adequate protection of the public. Alternatively, the owner of the spent fuel, as a last resort, may apply for an interim storage contract with DOE, under Sec. 135(b) of

.. the Acts until not later than 3 years after a repository or monitored retrievable storage facility is available for sper.t fuel. For the reasons discussed above tht Commission is confident that in every case the spent 9

fuel generated by those plants wi 11 be managed safely Ciuring the period

between license expiration or termir,ation and the ava-ilability of a mined waste repository for disposal.

Even if a repository does not become -available until 2025, nothing has occurred during the five years since its original Decision to diminish the Commission's confidence that high-level waste and spent fuel will be managed in a safe manner until a repository is available. The same logic just stated cor1tinues to apply through the first quarter of the twenty-f1rst century. NRC regulations remain adequate to assure safe storage of spent fuel and radioactive high-level waste at reactors, at independent spent fuel storage installations (ISFSis), and in an MRS until sufficient repository capacity is available.

10 CFR Subsection 72.42(a) provides for renewal of licensed *storage at ISFSls for additional 20-year periods for 1nterim storage, or for additional 40-year periods for monitored retrievable storage of spent fuel and solidified radioactive high-level waste if an MRS faciiity is constructed, licensed, and operated. This would ensure that spent fuel and solidified high-level waste, if any were to be delivered to an MRS facility, would remain in safe storage un.der NRC regulation throughout its storage. The Commission ha~ also publish~d for public comment a proposed amendment to Part 72, to issue a general license to reactor operating licensees to use approved sp~nt fuel storage casks at reactor sites. If this proposed ame11dme11t is promulgated, no spe~ific Part 72 license would be required. Operating license holders would re~ister with NRC to ~se approved casks on their sites.

• Spent fuel may continue to be stored in th~ reactor spent fuel pool under a Part 50 "possession only" license after the reactor has ceased operating. In addition, DOE's policy of disposing of the oldest fuel first, as set forth in its Annual Capacity Report, makes it unlikely that any significant fraction of total spent fuel generated will be stored for longer than the 30 years beyond the expiration of any operating reactor license. This expectation, established I

• in the Commission's original proceeding, continues to be reasonable, even in the event that a repository is not available unti 1 some time during the first quarter of the twE:nty-first century. Evett in the case of premature shutdowns, where spent fuel is most likely to remain at a site for 30 years or longer beyond OL expiration (see Finding 2, previously discussed), the Commission has confidence that spent fuel wi 11 be safely managed until safe disposal is available.

i.

Until the reactor site has been fully decommissioned, and sp~nt fuel has been transferred from the utility to DOE as required by NRC regulati~ns, the licensee remains responsible to NRC. Furthermore, under 10 CFR Subsection 50.54bb, originally issued in final form by the Commission with its 1984 Waste Confidence Decision, a reactor licensee must provide to NRC, five years before expiration of an OL, notice of plans for spent fuel disposition. Accordingly, the Commission concludes that nothing has changed since the enactment of the Nuclear Waste Policy Act of 1982 and the Waste Confidence Decision in August 1984 to diminish the Commission's " *** reasonable assurance thot high-level

radioactive waste and spent fuel will be managed in a safe. manner until sufficient repository capacity is available **.* 11 Pursuant to the NWPA, the Commission.issued in final form 10 CFR Part 53, "Criteria and Procedures for Determining Adequacy of Available Spent Nuclear Fuel Storage Capacity," addressing the determination of need, if any, for DOE interim storage. No applications were received by the June 30, 1989 NWPA deadline incorporated into the Commission's rule, and it seems unlikely that any applications will be: made to NRC for interim storage by DOE. Even if NRC were to make an exception for a lat~ application, a determination must be made before January 1, 1990 to comply with the NWPA.

3.B. Relevant Issues That Have Arisen sir.ce the Commission 1 s Original Decision ~

on Finding 3.

• Although a DOE facility will not be available to enable the Department to begin accepting spent fuel in 1998, as provided in the contracts under the NWPA, the Commission's confidence in sate storage is unaftected by any potential contractual dispute between DOE and spent fu~l generators and owners as to r~sponsibility for spent fuel storage. In the event that DOE does not take title to spent fuel by this date, a licensee under either 10 CFR Part 50 or Part 72 cannot abandcr. spent fuel in its posses~ion. Further, the Collllliission notes that only two reactors are current1y scheduled for shutdown before 2003, DOE 1 s anticipated repository startup date.* (See Nuclear Re ulator Commissic,n 1989 Information D1gest, NUREG-1350, Volo 1, p.33

• o reso ve any continuing uncertainties, however, it would be helpful if DOE and utilities and other spent fuel_generatots and owners co~ld reach an early and amicable resolution to the question of how and when DOE wi1i accept responsibi1ity for spent fuel.

This would facilitate cooperative action to provide for a smoothly operating system for the ultimate disposition of spent fuel. -

The Commission recognizes that the NWPA limitation of 70,000 MTHM for the first repository will not provide adequate capacity for the total amount of spent fuel proJected to be generated by a 11 currently operating 1i censed reactors.

The NWPAA effectively places a moratorium on a second repository program until 2007-2010. Either the first repository must be authorized and able to provide expanded capacity sufficient to accommodate the spent fuel generated, or there must be more than one repository. Since Congress specifically provided in the NWPAA for a first repository, and required DOE to return for legis1ative

. authorization for a second repository, the Commission believes that Congress will continue to provide institutional support for adequate repository capacity.

Th& Commission's confidence about the availability of repository capacity is not aft*ected by the possibility that some existing reactor licenses might be renewed to permit continued generation of spent fuel at these sites. Because only two reactor licenses are sch~duled to expit*e before 2003, the impact of license renewals (a matter not considered in the Comnission 1 s 1984 Decision)

wili have no significant effect within the first quarter of the twenty-first century on scheduling requirements for a second repository. Renewals may slightly alleviate the need for a second repository in the short term, because spent fuel storage capacity will be expanded for extended storage at these

• reactor sites. Over the longer term, renewals might increase spent fuel generation we 11 into the latter half of the twenty-t irst century. Nonetheless, nothing in this situation diminishes the Commission's assurance that safe storage will be made available as needed.

In summary, the Commission finds no basis for changing the Third Finding in its Waste Confidence Decision. The Commissicn continues to find " *** reasonable assurance that high-level radioactive waste and spent fuel will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all high-level waste and spent fuel."

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

Proposed Finding 4: The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be storeG safely and without significant environmental impacts for at least 30 years b~yond the licensed lite for operation (which may include the term of a revised license) of that reactor at its spent fuel storage basin, or at either onsite or oftsite independent spent fuel storage installations.

4.A. Issues Considered in Comrnissior. 1 s 1984 Decision on Finding 4.

In the Commission's discussion of Finding 4 in its Waste Confidence Decision (49 FR 34658, August 31, 1984) Section 2.4 "Fourth Commission Finding/' the Commission said that:

Although the Commission has reasonable assurance that at least one mined geologic repository will be available by the years 2007-09, the Commission also realizes that for various reasons, including insufficient capacity to immediately dispose of all existing spent fuel, spent fuel may be stored in existing or new storage facilities* for some periods beyond 2007-U~o The Commission believes that this extended storage will not be necessary for any period longer than 30 years beyond the t~rm of an operating license. For this reason, the Commission hes addressed on a generic basis in this decisiori the safety and environmental impacts of extended spent tuel storage at reactor spent fuel basins or at either onsite or offsite spent fuel storage installations. The Co1T111issior. finds that spent fuel a can be stored safely and without significant environmental impdcts for o.t W ieast 30 years beyond the expiration of reactor operating licenses. To ensure that spent fuel which remains in storage wi11 be managed properly until transferred to DOE for disposals the Ccmmission is proposing an amenciment to its regulations (10 Ct-R Part 50). The amendment will require the licensee to notify the Commission, five years prior to expiration of its reactor operating license, how the spent fuel will be managed until disposal.

The Commission's finding is based on the record of this proceeding which indicates that significant releases of radioactivity from spent fuel under licensed storage conditions are highly unlikely. It is also supported by the Commission's experience in conducting more than 80 individual safety

• evaluations of storage facilities.

The safety of prolonged spent fuel storage can be considered in terms of tour major issues: (a) The long-term integrity of spent fuel under water pool storage conditions, (b) structure and component safety for extended

facility operation, (c) the safety of dry storage, and (d) potential risks of accidents and acts of sabotage at spent fuel storage facilities."

For reasons discussed above; the Corrm'lission arrived at a provisional figure of

/0 years or more for storage (i.e., a 40-year reactor OL span, plus 30 years or more).

The 70-year-plus estimate is supported by oral testimony from the nuclear industry to the Commission in the Waste Confidence Proceeding. (See Transcript of Commission Meeting, 11 In the Matter of: Meeting on Waste Confidence Proceeding," January 11, 1982, Washington, DC, pp. 148-160). This testimony specifically addressed safety issues related to water pool storage of spent fuel and supported the pc,sition that spent fuel cou Id be stored for an indefinite period, citing the industry's written submittal to the Co11111ission in the proceeding. (See 11 The Capability for the Safe Interim Storage of Spent Fuel" (Dccument 4 of 4), Ut1 lity Nuclear Waste Management Group and Edison Electric Institute, July 1980). Some of this material alluded to in the oral testimony was subsequently referenced by the Con,mission in its discussion of water pool storage issues and its Fourth Finding of reasonable assurance that spent fuel and high,level waste 11 * *

• will be ~anaged in a safe manner. 11 (See 49 FR: 34658 at pp. 34681-2, August 31, 1984).

If a reactor with a 40-year initial license were to have that license renewed for another 30 years, the Cc,mmission believes that the spent fuel generatt::d at that*reactor can be safely stored for at least several decades past tht end of the 70-year operating period. Adding to these 70 years the expected 30-year post-OL period during which the CoDJDission believes, under* Finding 2, that sufficient*repository capacity will be maae available for any reactor's spent fuel, tHe total storage time would be about 100 years.

e In making the original Fourth Finding, the Commission did nc,t determine that for technical or regulatory reasons, storage would have to be limited to 70 years. This is apparent from the Commission's use of the words 11 * *

• t*or at least 30 years beyono the expiration of that reactor's operating license ***

[emphasis added]." Similarly, in using the words 11 at leasth in its proposed revised Finding Four, the Co1m1ission is not suggesting 30 years beyond the licensed life for operation {which may include the term of a revised license) represents any technical limitation for safe and environmentally benign storage. Degradation rates of spent fuel in storage, for example are slow .

9 enough that it is hard to distinguish by degradation alone between spent fuel I .

in storage for less than a decade and spent fuel stored for several decades.

The Commission's proposed revised Finding here is meant to apply both to wet storage in reactor pools and dry storage in engineered facilities outside the recrctor containment building. Both dry and wet storage wil I be discussed in deta.i 1 next.

Since the original Waste Confidence Decision, which found that material degradation precesses in dry storage were well-understood, and that dry-storage systems were simple, passive, and easily maintained, NRC and ISFSI oper~tors have gained experience with dry stor~ge which confirms the Co11111issiun 1 s 1984 conclusions. NRC staff safety reviews of topical reports on storage-system designs, the licefising and inspection of storage at two reactor sites, and NRC promulgation of the Part 72 amendment tor MRS, have significantly increased the agency's understanding of and confidence in dry storage.

Under NWPA Section 218(a), DOE has carried out spent fuel storage research and development as well as demonstration of dry cask storage at its Idaho National Engineering Laboratory. Demonstration has been carried out for metal casks under review or previously reviewed by HRC staft. DOE has also provided support to ut11ities in dry storage licensing actions (see Godlewski, N.Z., A "Sptnt Fuel Storage -- An Update," Nuclear News, Vol. 30, No. 3, March 1987, W pp.47-52).

Dry storage of spent fuel has become an available option for utilities with9 at-reactor- dry storage licensed afid underway at two sites: the H.B. Robinson Steam Electric Plant, Unit 2, in Scuth Carolina, and the Surry Nuclear Station in Virginia. NRC has re:ceived an application for dry storage at Duke Power Con1pany 1 s Oconee Power Station site as well. This application is st,1 I uncier reviews but the environmental review is completeci and an environmental assessment and finding of no significant impact have been issued (see 53 FR 44133i Novemoer 1, 1988). Based en utility statements of intent, and projections of need for additional storage capacity at reactor sites, the NRC statf expects numerous applications from utilities over the next decade (see "Final Version Dry Cask Storage Study," DOE/Rl~-0220, February 1989).

Since the original Waste Cornfidence finding 11 the Comn;ission has reexamined A long-term spent fuel storage in issu1ng an amendment to 10 CFR Part 72 to ~

address the storage of spent fuei and high-level radioactive waste in an MRS 11 as envisioned by Congress in Section 141 of the MWPA. Under this rule>> storage in an MRS is to be licensed for a period of 40 years, with the possibility tor renewal. The Commission determined not to prepare an environmental impact statement for the proposed ame:ndments to 10 CFR Part 72, however. (See 53 FR 31651, p. 31657, August 19, 1988.J An environmental assessment and findingcf no significant impact were issued because the Commission found that the consequences of long-term storage are not significant. The environmental assessment for 10 CFR Part 72, "Licensing Requirements for the Independent Storage of Spent Fuel and High-Level Radioactive Waste," NUREG-1U92, assessed dry storage of spent fuel for a period of 70 years after receipt of spent fuel from a reactor:

~ The basis chosen for evaluating license requirements for the long-term storage of spent nuclear fuel and high-level radioactive waste in an MRS is an installation having a 70-year design lifetime and a 70,00G MTU storage capability. This assessment focuses on the potential environmental consequences tor a long-term storage period, a period for

which the Commission needs to assure itself of the continued safe storage of spent fuel and high-level radioactive waste and the performance of materials of construction. This means the reliability of systems important to safety needs to be established to ensure that long-term storage of spent fuel and HLW does not adversely impact the environment.

For example, the staff needs to establish that systems, such as concrete shielding, have been evaluated to determine how their physical properties withstand the consequences of irradiation and heat flux for about a 70-year period. The Commission addressed structure and component safety for exte11ded operation for storage of spent fuel in reactor water pools in the matter of waste confidence rulemaking proceeding. The Commission's preliminary cor,clusion is that experience with spent fuel storage provides an adequate basis for confidence in the continued safe storage of spent fuel for at least 30 years after expiration of a plant's license. The Commission is therefore confident of the safe storage of spent fuel for at least 70 years in water pools at facilities designed for a 40-year lifetime. The Ccnimission also stated that its authority to require continued safe management of spent fuel generated by licensed plants protects the public and assures them the risks remain acceptable. In consideration.of the safety of dry storage of spent fuel, the Commission*~

preliminary conclusions were that [its] confidence in the extended dry storage of spent fuel i~ based on a reasonable understanding of the material degradation processes, together with the recognition that

-dry storage systems are simpler and more readily maintained. In response

• -.. to Nuclear Waste.Policy Act of 1982 authorizations, the Commission noted;

• • *** the Commissicn believes the information above [on dry spent fuel storage research and demonstrationJ is sufficient to reach a conclusion on the. safety and environmental effects of extended dry storage. A11 areas of safety and environmental concern (e.g., maintenance of systems and components, prevention of material degradation, protection against accidents and sabotage) have been addressed and shown to present no more potential for adverse impact on th~ ~nvironmental and the public health and satety than storage of spent fuel in water pools.* At this time, the Commission is confident it can evaluate the long-term integrity of material for constructing an installation and provide the needed assurance for safe storage of spent fuel and HLW to establish the licensibility of an MRS ovet extended periods of time. The MRS fuel storage concepts discussed here for revision of 10 CFR Part 72 covers only dry storage concepts. [References omitted]

The Commission believes that its 1984 Fo~rth Finding should be changed to reflect the environmental assessment in the 10 CFR Part 72 MRS rulemaking and other evidence that spent fuel can be stored, safely and without significant environmental impact, for extended periods. Although the Commission does not beljeve storage in excess of a century to be likely, with or ~ithout an MRS, the*re is the potential for storage of spent fuel for times longer than 30 years beyond the expiration of an initial, extended, or renewed reactor Ol, if a reactor operating under such a license were prematurely shut down. Th~

Commission does not, however, see any significant safety or environmental problems associated with storage for at least 30 years after the licensed life tor operation of any reactor, even if this effectively means storage for at least 100 years, in the case of a reactor with a 70-year licensed life for operation.

Under the environmental assessment for the MRS rule, the Commission has found confidence in the safety and environmental insignificance of dry storage of spent fuel for 70 years following a period of 70 years of storage in spent fuel storage pools. Thus, this environmental assessment supports the proposition that spent fuel may be stored safely ana without significant environmental impact for a period of up to 140 years if storage in spent fuel pools occurs first and the period of dry storage does not exceed 70 years.

The Commission has also found that experience with water-po~l storage of spent fuel continues to confirm that pool storage is a benign environment for spent fuel that does not lead to significant degradation of spent fuel integrity.

Since 1984, utilities have continued to provide safe additional reactor pool storage capacity through reracking, with over 110 such actions now completed.

The safety of storage in pools is wiaely recognized among cognizant professionals. Specifically, the Commission notes one expert's view that:

During the last 40 years there has been very positive experience with the handling and storing of irradiated fuel in water; thus wet storage is now considered a proved technology. There is a substantial technical basis for allowing spent fuel to remain in ~et storage for several decades. For the past two decades 11 irradiated Zircaloy-clad fuel has been handled and stored in water. There continues to be no evidence that Zircaloy-clad fuel degrades significantly during wet storage -- this includes: fuel with burnups as high as 41,000 MWd/MTU; continuous storage of low-burnup fuel for as long as 25 years; b~d irradiation of fuel in reactors for periods up to 22 years. Cladding defects have had little impact during wet storage, even if the fuel is uncanned. [References omitted.] [See Bailey W.J. and Johnston, Jr. A.B., et al., "Surveillance of LWR Spent 11 Fuel in Wet Storage 9 11 NP-3765, Electric Power Research Institute (EPRIL, October 1984, pp. 2-10.]

This last conclusion has been reaffirmed by the same authors, who recently wrote: "There continues to be no eviderace that LWR spent fuel with Zircaloy or stainless steel cladding degrades significantly during wet storage [EPRI 1986; International Atomic Energy Agericy {IAEA) 1982]. 11 (See "Results of Studies on the Behavior of Spent Fuel in Storage," Journal of the Institute of Nuclear Materials Management," Vol. XVI, No. 3, April 1988, p. 27.IV A).

In addition to the confidence that the spent fuel assemblies themselves will not degrade significantly in wet storage, there is confidence that the water po~ls in which the assemblies are stored will remain safe for extended period~:

As noted in the rt:cent IAE/.. world survey, the 40 years of positive:

experience with wet storage illustrates that it is a tully-developed technology with no associated major technological problems. Spent fuel storage pools are operated witheut substantial risk to the public or the plant personnel. There i* substantial technical basis for allowing spe:nt fuel to remain in wet storage for several decades. Minor, but repairable, problems have occurred with spent fuel storage pool components such as liners, racks, and piping. [See Bailey, W.J., and Johnson, Jr., A.B., et al., "Surveillance of LWR Spent Fuel in Wet Storage," EPRI NP-3765, -

prepared by Battelle Pacific Northwest Laboratories, Final Report, October 1984 , p. 6-1. ]

The studies just cited support the view that rates of uniform corrosion of spent fuel cladaing in storage pools are low over time. Localized corrosion on cladding surfaces has also been gradual and can be expected to remain so.

Cladding that has underyune damage while in the rEactor core has not resulted in significant releases of radioactivity when stored in pools. Furthermore, the operational experience accumulated since the 1984 Waste Confidence Decision and NRG experience in licensing and inspection reinforce the conclusions in t~,at Decisicn that wet storage involves a relatively benign environment. There are no driving mechanisms, such as temperature and pressure:, to degrade storage structures or components er the fuel itself, or to spread contamination.

Degradation mechanisli1S are gradual and well understood; they al low ample time tor remedial action, including repair er r.eplacement of any tailing systems.

Thi*s ext~nsive experience adequately supports predict ions of long-term

• integrity of storage basins.

The Conmission also notes the endorsement of this basic confidence by cognizant professional organizations:

The An1erican Nuclear Society issued a policy statement [ANS 1986] in 1986 regarding storage of spent nuclear fuel. The statement indicates that continued wet storage of spent fuel at nuclear power plant sites until the ted~ral government accepts it under existing contracts with the utilities is safe, economical and environmentally acceptable. [See Gilb~rt, E.R.,

Bailey, W.J., and Johnson, A.B., "Results of Studies 011 the Behavior of Spent Fuel in Storage," Journal of the Institute of Nuclear Materials Management, Vol. XVI, No. 3, April 1988, p. 27.IV A)o]

Thus, supported by the consistency of NRG expe,rience with that of others, the Commission has concluded that spent fuel can be stored safely and without significant environmental impact, in either wet storage or in wet storage fol"lowed by dry storage, for at least 100 years. The Commission considers it unlikely, however, that any fuel will actually remain in wet storage for 100 yea.rs or even tor 70 years. We anticipate that, consistent with the currently developing trend, utilities will move fuel rods out of spent fuel pools and into dry storage to make room ,n pools for freshly-discharged spent fuel.

Although the Commission has concluded that reactor spent fuel pools can safely be used to store spent fuel for 100 years, there is rio technically compelling reason to use them that long. If reactor licenses are renewed for as long as 30 years, making a total of 70 years of operation, it will be necessary to store the spent fuel discharged at the end of the reactor's operation in a spent fuel pool for several years to allow for radioactive decay and thermal cooling. After this period, the fuel could be placed in dry storage and the spent fuel pool decommissioned. Thus, for most reactors, the most likely maximum period of storage will be wEll within the extended 30-year post-operational period under the Commission's proposed revision to Finding 4o Moreover, considering that under certain conditions spent fuel can be stored safely and withciut significant environmental impacts for up to 140 years, the Commission believes there is ample basis for confidence in storage for at least a 100 years.

• In its 1984 Waste Confidence Decision, the Conmission also concluded that "there are no significant additional non-radiological impacts which could adversely affect the environment if spent fuel is storEd beyond the expiration of operating licenses for reactors" (see 49 FR 34658 at p. 34686, August 31, 1984). The Commission did not find anythingto contradict this conclusion in its 1988 rulemaking amending 10 CFR Part 72 for long-term spent fuel and high-level waste storage at an MRS:

In August 1984, .the NRC published an *environmental assessment for this proposed revision of Part 72 NUREG-1092, 'Environmental Assessment for 10 CFR Part 72, Licensing Requirements for the Independent Storage of Spent Fuel and High-Level Radioactive Waste.' NUREG-1092 distusses the major issues of the rule and the potential impact on the environment. The findings of the environmental assessment are 1.(l) past experience with water pool storage of spent fuel establishes the technology for 1ong-term storage of spent fuel without affecting the health anti satety of the 4t public, (2) the proposed rulemaking to i~clude the criteria of 10 CFR Part i2 for storing spent nuclear fuel and high-level radioactive waste does not significantly affect the environment, (3) solid high-level waste is comparable to spent fuel in its heat generation arid in its radioactive material ccntent on a per metric ton basis, and (4) knowledge of material degradation mechanisms under dry storage conditions and thE ability to institute repairs in a reasonabl~ manner without endangering the health

[and safety] of the public shows dry storage technology options do not significantly impact the environment.* The assessment concludes that, among other thingsi there are no significant environmental impacts as a result of promulgation of these revisions of 10 CFR Part 72.

. Based on the above assessment, the Conunission concludes that the r-ulemaking action will riot have a significant incremental environme,ntal impact on the quality of the human environment. [53 FR 31651 at pp. 31657-31658, August 19i 1988.] -

Thus, the 1988 amendments t6 10 CFR Part 72 provide the ba~is for the Commission to conclude that the environmental consequences of long-term spent fuel storage, including non-radiolog~cal impacts, are not significant.

Finally, no considerations have arisen to affect the Cornmission 1 s confidence since 1984 that the possibility of a major accident or sabotage with offsite radiological impacts at a spent-fuel storage facility is extremely remote. NRC has recently reexamined reactor pool storage satety in two studies, "~e,smic Failure and Cask Drop Analyses of the Spent Fuel Pools at Two Representative Nuclear Power Plants" (NUREG/CR-5170) and Beyond Design Basis Accidents in 11 Spent Fuel Pools (NUREG-1353). These studies reaffirmed that there are no 11 safety considerations that justify changes in regulatory requirements for pool storage. Both wet- and dry-storage activities have continued to be licensed by the Commissior1. In its recent rulemaking amending 10 CFR Part n. to establish licensing requirements for an r,:1's, the Commission did choose to eliminate an exemption regarding tornado missile impact 11

• • • to assure designs continuE to address maintaining confinement of particulate material. 11 (53 FR 31651, p.

Jl655, August 19, 1988). However, NRC staff had previously consTdered tornado missile impacts in safety reviews of design topical reports and in 1i cens ing reviews under 10 CFR Part 72.

4.B. Relevant Issues That Have Arisen since the Comrnission 1 s Original Decision on Finding 4 In- its original Fir1ding 4, the Commission found reasonable assurance of safe storage without significant environmental impacts for at least 30 years beyond reactor OL expiration. Delays and uncertainties in the schedule for repository availability since the.1984 Decision have convinced the Commission to allow some margin beyond the scheduled date for repository opening currently cited by DOE. As noted in Finding 2, the Commission has reasonable assurance that at least one repository will be available within the first quarter of th~

twenty-first century. For all currently operating reactors, this would stili be within the period of 30 years from expiration of their Ols, which the Commission previously found to be the minimum period for which spent fuel storage could be considered safe a~d without significant environmental impact.

Urider the NWPA as amended, DOE is authorized to dispose of up to 70i,OOO MTH~i in the first repository before granting a construction authorizatior1 for a second.

Under existing licenses, projected spent fuel generation could exceed 70,000 MTHM as early as the year 2010. Possible extension~ or renewals of OLs also need to be considered in assessing the need for and scheduling the secontl repository. It now appears that unless Congr1::ss lifts the capacity lin,it on the first repository -- and unless this repository has the physical capacity to dis,pose of all spent fuel generated under both the original and extended or renewed licenses -- it will be necessary to have at least one additional repository. Assuming here that the first repository is available by 2025 and has a capacity on the order of 70,000 MTHM, additional disposal capacity woulo probably not be needed before about the year 2040 to avoid storing spent fuel at a reactor for more than 30 years after expiration of reactor Ols.

Although actrnn ona second repository before the year 2007 would require Congressional approval, the Cow.mission believes that Congress will take the riec.essary action if it becomes clear*that the first repository site will not have the capacity likely to be needed. If DOE were able to address the need for a second repository earlier, for example by initiating a survey for a second repository* site by the year 2000, DOE might be able to reduce the potential requirement for extended spent fuel storage in the twenty-first century. The Commission does not, however, find such action necessary to concluae that spent fuel can be stored safely.and without significant environmental impact for extended periods.

The potenti~l for generation and onsite storage of a greater amount of spent fuel as a result of the renewal of existing OLs does not affect the -

Commission's findings on- environmental impacts. In Finding 4, the Commission did not base its determination on a specific number of reactors and amount of spent fuel generated. Rother, the Commission tock note of the safety of spent fuel storage and lack of environ~ental impacts overall, noting that individual actions involving such storage would be reviewed. In the event there were applications for renewal of existing reactor Ols, each of these actions would be subject to safety and environmental reviews, with subsequent issuance of an environmental assessment or environmental impact statement, which would cover storage of spent fuel at each reactor site during the period of th~ renewed license.

The Commission also notes that the amount of spent fuel expected to be discharged by reactors has continued to decline significantly, a trend alreaay noted in the Conmission's discussion of its Finding 5 {4~ FR 34658 at p. 34687, August 31, 1984). At the time of the Commission's decision, 11

• • • the cumulative amount of spent fuel to be aisposed of in the yec..r 2000 [wasj expected tc be a 58,000 metric tons of uranium (see "Spent fuel Storage Re:quirements {Update 11 11 w

of DOE/RL-82-17) DOE/RL-83-1, January>> 1983). Today, that fi~ure has declined ta 40,384 metric tons (see Spent Fuel Sto~age Requirernents (DOE/RL-88-34),

11 11 October 1988, p. A. 17). Thus, the amount of spent fuel considered likely to be discharged by the year 2000 in tht Commission's 1984 decision will not be attained until well into the second decade of the twenty-first century, if then.

• The Commission believes that its 1964 Finding 4 should be revised to acknowledge the possibi 1ity and assess the safety and environmenta 1 impacts of extended storage for periods longer than 70 years. The principal reasons for this proposed revision are that: (1) the long-term material and system degradation effects are well understood and known to be minor; (2) the ability to maintain the system is assured; and (3) the Commission maintains regulatory authority over any spent fuel storage installation.

On the basis of experience with wet and dry spent fuel storage and related rulemaking and licensing actions~ the Commission concludes that spent fuel can be safely stored without significant environmental impact for at least 100 years, if necessary. Therefore, the Commission proposes to revise its original

t-ourth Finding thus: "The Commission finds reasonable assurance tnat~ if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 y~ars beyond the licensea life for operatior1 (which may include the term of a revised license) of that reactor at its spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations."

Original Finding 5: The Commission finds reasonable assurance that safe independent onsite spent fuel storage or offsite spent fuel storage will be made available if such storage capacity is needed.

Proposed Finding 5: Same as above 5.A. Issues Considered in Commission's 1984 Decision on Finding 5 In its discussion of Finding 5 of its Waste Confidence Decision (49 FRN 34658, August 31, 1984), the Commission said that:

The technology for independent spent fuel storage installations, as discussed under the fourth Commission Finding, is available and demonstrated. The regulations and licensing procedures are in place.

Such installations can be constructed and licensed within a five-year time interval. Before passage of the Nuclear Waste Policy Act of 1982 the Commission was concerned about who, if anyone, would take responsibility for providing such in~tallations on a timely basis. While the industry was hoping for a government commitment, the Administration had discontinued efforts to provide those storage facilities **** The Nucl~ar

~Jaste Policy Act of 1982 establishes a national policy for providing storage facilities and thus helps to resolve this issue and assure that storage capacity will be available *.

Prior to March 1981, the DOE was pursuing a program to provid~ temporary storage in off-site, or away-from-reactor (A~R), storage installations.

The intent of the program was to providt:! flexibility in the national waste disposal program and an alternative for those utilities unable to expand their own storage capaciti~s.

Consequently, the participants in this proceeding assumed thati prior to the availability of a repository the Federal government would provide for 9

storage of spent fuel in excess of that which could be stored at reactor siteso Thus, it is not surprising that the record of this proceeding prior to the DOE policy change did not indicate any dir~ct commitment by the utilities to provide AFR storage. On March 27, 1961, DOE placed in the record a letter to the Commission stating its decision 'to discontinue its efforts tc provide Federal government-owned or controlled away-from-reactor storage facilities. 1 The primary reasons for the change in policy were cited as new and lower projections of storage requirements and lack of Congressional authority to fully implement the original policy.

lhe record of this proceeding indicates a general commitment on the part

.. of industry to do whatever is necessary to avoid shutting down reactors or derating them because of filled spent fuel storage pools. While industry's incentive for keeping a reactor in operation no longer applies after expiration of its operating license, ~tilities possessing spent fuel are required to be licens~d and to maintain the fuel in safe storage until removed from the site. Industry's response to the change in DOE 1 s policy

on federally-sponsored away-from-reactor (AFR) storage was basically a commitment to do what is required of it, with a plea for a clear unequivocal Federal p<ilicy ****. The Nuclear Waste Policy Act of 1982 has now provided that policy.

The Nuclear Waste Policy Act defines public and private responsibilities tor spent fuel storage and provides for a limited amount of federally-supported interim storage capacity. The Act a1so includes provisions for monitored retrievable storage facilities and for a research development and demonstration program for dry storage. The Conunission believes that these provisions provide added assurance that safe e independent onsite or oftsite spent fuel storage will be available if needed. [References omittedj The policy set forth in the NWPA regarding interim storage remains in place.

Therefore, the Commission's confidence remains unchanged. The only policy .

change affecting storage involves long-term storage in ar. MRSo The NWPAA sets schedule restrictions on an MRS by tying it to the repository siting and licensing schedule._ These restrictions effectively delay implementatior. of an MRS. Consequently, its usefulness in providing storage capacity relief to utilities is likely to be lost.

Although the Corrmission's confidence in its 1984 Decision did not depend on the availability of an MRS facility, the possibility of such a facility, as provided for in the NWPA, was one way in which needed storage could be made uva ilab le. The NWPAA makes an MRS faci1 ity less likely by 1inking it to repository_development. The potential impact of the decreased likelihood of an MRS on the Commission's confidence is, however more than compensated for by 9

operational and planned spent fuel pool expansions anci dry-storage investments by utilities themselves -- developments that had not beer, made operational at the time of the original Waste Confidence Decision" Consequently, the statutory restrictions that may make an MRS ineffective for timely storage capacity relief are of no consequence for the Commission's finding of confidence that adequate storage capacity l'lill be made availab1e if needed.

Although, the NWPAA limits the usefulness of an MRS by linking its availability to repository development, the Act does provide authorization for an MRS facility. The Cowmission has remained neutral since its 1984 Wa~te Confidence uecision with respect to the need for authorization of an MRS facility. The Cormnission does not consider the MRS essential to protect public health and safety. If any offsite storage capacity is required, utilities may make application for a license to store spent fuel at a new site. Consequently, i while the NWPAA provision does affect MRS development ancl therefore can be saici 1 to be limiting, the Con-mission believes this should not affect its confidence in *the availability of safe storage capacity.

5.B. Relevant issues That Have Arisen since the Commission's Original Decision on Finding 5 DOE will not be able to begin operation of a repository before 2003 under current plans, and operation might begin somewhat later. Given progress to date on an MRS, the link between MRS facility cor.struction and repository construction authorization established by the NWPAA, and the absence of other concrete DOE plans to store the spent fuel, it seems unlikely that DOE will meet the 1998 deadline for taking title to spent fuel. {Under Section 302(a)l5)(6) of the NWPA, " *** the Secretary, beginning not later than January 31 1998, will dispose of the high-level radioactive waste or spent nuclear 9

fuel [subject to disposal contracts]."} This potential problem does not, however, affect the Commission's cor,fidence that storage capacity wi 11 be made available as needed.

The possibility of a dispute between DOE and utilities over the responsibility fer providing spent fuel storage will not affect the public health and safety or the environment. Ur,certainty as to contractual responsibilities raises questions concerning: (1) who will be responsible; (2) at ~ta;at point in time responsibi iity for the spent fuel will be transferred; (3)' how the fuel wi 11 be managed; (4} how the transt*cr of management responsibility from the utilities to DOE will take place; and (5) how the cost of DOE storage might differ, if at all>> from utility storage. Uti1iti~s possessing spent fue1 in storage unaer NRC licenses cannot abrogate their safety responsibilities, however. Until DOE can safely accept spent fuel, L!tilities or some other licensed entity will remain responsible for it. If DOE and the utilities can amicably resolve their respective*responsibilities for spent fuel storage in the interest of efficient ar.d effective administration of the overan wast~ management system, including the Nuclear Waste Fund, NRC would gaira added confidence in th~ institutional ..

arrangements for spent fuel management (see also Finding 3 on this issue)o ..,

Estimates of the amount of spent fuel generated have continued to decline. At the time of the Commission's Decision, the Commission cited in Finding 5 the cumulative figure of 58,000 metric tens uranium of spent fuel generated in the year 2000 (See 49 FR 34658, p. 34697, August 31, 1984.J More recently, DOE estimated 40,~84 metric tons (See "Spent Fuel Storage Requirements,"

DOE/RL-88-34, October 1988, p. A. 17}. Although estimates may show an increase at some date well into the twenty-first century if licenses of some reactors are renewed or extenaed, this possibility cioes not affect the Commission's confidence in the availability of safe storage capacity until a repository is operat1onal. The industry ha$ made a general commitment to provide storage capacity, which could include away-from-reactor (AFR) storage capacity. To date, however, utilities have sought to meet storage capacity r,eeds at their respective reactor sites. Thus, a new industry application for AFR storage remains only a potential option 9 which currently seems unnecessary and un"likely.

Utilities have continued to add storage capacity by reracking spent tuel pools, and NRC expects continued reracking where 1t is physically possible and represerits the least costly alternative. Advances in dry-storage technologies

and utility plans both have a positive effect on NRC's confidence. At the time the Commission reached its original findings, dry storage of LWR spent fuel was, as yet, unlicensed under 10 CFR ~art 72, and DOE's dry-storage demonstrations in support of dry-cask storage were in progress at the Idaho National Engineering Laboratory (INEL).

Today, DOE's demonstration efforts have been successful (See Godlewski, N. Z.,

"Spent Fuel Storage-An Update," Nuclear News, Vol. 30, No. 3, March 1987, pp.

47-52, at p. 47.) Dry storage has been licensed at two reactor sites, and a third application is under review. Dry cask storaoe is licensed at Virginia Electric Power Company's Surry Power Station site {see License, SNM 2501 under Docket No. 72-2), and dry-concrete module and stainless-steel canister storage is licensed at Carolina Power and Light Company's (CP&L's) H. B. Robinson, Unit 2, site {see License SNM 2502, under Docket No. 72-3). An application is under review for a similar modular system at Duke Pow~r Company's Oconee Nuclear Station site {See Letter to Director, Division of Futl Cycle and Material Safety, NRC, from Hal B. Tucker, Duke Power Company, dated March 31, 1988, under Docket No. 72-4). A new application has been received in 1989 for CP&L's Brunswick site, and another is expected in 1989 for the Baltimore Gas and Electric Company's C'a1Vert Cliffs site. Applications are also expected for CP&L's Robinson 2 site {at another onsite location to allow for greater storage capacity), Wisconsin_ Electric Power Company's Point Beach site, and Consumer Power's Palisades site. "The Tennessee ValJey Authority has indicated that it will apply for its Sequoyah plant site.

Thus, the successful demonstration by DOE of dry cask technology for various cask types.at INEL, utilities' actions to forestall spent fuel storage capacity shortfalls, and the continuing sufficiency of the licensing record for the Commission to authorize increases in at-reactor storage capacity all strengthen the Commission's confidence in the availability of safe and environmentally sound spent fuel storage capacity.

Renewal of reactor OLs will involve consideration of how additional spent fuel generated during the extended term of the license will be stored onsite or offsite. There will be sufficient time for construction and licensing of any additional storage capacity needed.

In surmnary, the Cormnission finds no basis to change the Fifth Finding in its Waste Confidence Decision. Changes by the NWPAA, which lessen the likelihood of an MRS facility, and the potential for some slippage in repository availability to the first quarter of the twenty-first century {see our \.,"

discussion of Finding 2) are more than offset by the continued success of utilities in providing safe at-reactor-site storage capacity in reactor pools and. their progress in providing independent onsite storage. Therefore, the

78

Commission continues to find 11 * *

• reasonable assurance that safe independent onsite spent fuel storage or offsite spent fuel storage will be made available if such storage is needed."

Dated at Rockville, Maryland this 25th day of September, 1989 9

For the Nuclear Regulatory Commission.

. /JJohnCoHoy 1e Assistant Secretary of the Commission