State of Nevada; Denial of a Petition for Rulemaking, 48329-48333 [05-16253]

Download as PDF Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Proposed Rules Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734– 7477. List of Subjects 9 CFR Part 101 Animal biologics. § 116.8 Completion and retention of records. 9 CFR Part 116 Animal biologics, Reporting and recordkeeping requirements. Accordingly, we propose to amend 9 CFR parts 101 and 116 as follows: PART 101—DEFINITIONS 1. The authority citation for part 101 would continue to read as follows: Authority: 21 U.S.C. 151–159; 7 CFR 2.22, 2.80, and 371.4. 2. In § 101.2, definitions of adverse event and adverse event report would be added in alphabetical order to read as follows: § 101.2 Administrative terminology. * * * * * Adverse event. Any observation in animals, whether or not the cause of the event is known, that is unfavorable and unintended and that occurs after any use (off label or on label) of a biological product. Included are events related to a suspected lack of expected efficacy. For products intended to diagnose disease, adverse events refer to anything that hinders discovery of the correct diagnosis. Adverse event report. Any communication concerning the occurrence of an adverse event from an identifiable first-hand reporter which includes at least the following information: (1) An identifiable reporter; (2) An identifiable animal; (3) An identifiable biological product; and (4) One or more adverse events. * * * * * PART 116—RECORDS AND REPORTS 3. The authority citation for part 116 would continue to read as follows: Authority: 21 U.S.C. 151–159; 7 CFR 2.22, 2.80, and 371.4. 4. In § 116.1, paragraph (a)(3) would be revised to read as follows: § 116.1 Applicability and general considerations. (a) * * * (3) Records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer, as the case may be, before VerDate jul<14>2003 12:19 Aug 16, 2005 any portion of a serial of any product may be marketed in the United States or exported. * * * * * 5. Section 116.8 would be revised to read as follows: Jkt 205001 All records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer before any portion of a serial of any product may be marketed in the United States or exported. All records must be retained at the licensed or foreign establishment or permittee’s place of business for a period of 2 years after the expiration date of a product or longer as may be required by the Administrator. (Approved by the Office of Management and Budget under control number 0579–0013) 6. A new § 116.9 would be added to read as follows: § 116.9 Adverse event report records and summary reports. (a) A detailed record must be maintained for every adverse event report the licensee or permittee receives for any biological product it produces or distributes. Each record must include: (1) The date of the report; (2) The identification of the person initiating the report; (3) The product code number as it appears on the product license or permit, and product trade name; (4) The serial number(s) of the product, if available; (5) A description of the adverse event; (6) A description of the animal(s) involved, including the number dead, number affected, number exposed to the product, species, breed, age, sex, and physiological status; (7) The opinion (probable, possible, unknown, unlikely, no assessment) of the person initiating the report as to whether the event is product-related; (8) The route and site of vaccination for products administered parenterally; (9) The identity of the person administering the product (veterinarian, animal owner, other, unknown); (10) The date of the event; and (11) The outcome of the event (recovered, death, euthanized, alive with side effects, ongoing event). (b) A summary report of all adverse event reports received by a licensee or permittee must be compiled and submitted to the Animal and Plant Health Inspection Service. For products licensed for 1 year or more, such summary reports must cover intervals of 12 months; for products licensed for less PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 48329 than 1 year, the summary reports must be submitted at 6-month intervals. All summary reports must be received within 60 days after the end of the reporting date that will be determined by the licensee or permittee and approved by the Animal and Plant Health Inspection Service. Each summary report must include: (1) The name, address, and U.S. Veterinary License or Permit number of the producer, permittee, or foreign manufacturer; (2) Copies of any individual adverse event reports for the product maintained as prescribed in paragraph (a) of this section; and (3) The number of doses, or the average number of doses, of the product in distribution channels, if available. Done in Washington, DC, this 11th day of August 2005. Bill Hawks, Under Secretary for Marketing and Regulatory Programs. [FR Doc. 05–16266 Filed 8–16–05; 8:45 am] BILLING CODE 3410–34–P NUCLEAR REGULATORY COMMISSION 10 CFR Part 51 [Docket No. PRM–51–8] State of Nevada; Denial of a Petition for Rulemaking Nuclear Regulatory Commission. ACTION: Petition for rulemaking: denial. AGENCY: SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is denying a petition for rulemaking submitted by the State of Nevada (PRM– 51–8). The petitioner requests that NRC amend a decision reached in a 1990 rulemaking, referred to as the ‘‘Waste Confidence’’ decision, that at least one mined geologic repository will be available within the first quarter of the twenty-first century as well as a regulation making a generic determination of no significant environmental impact from the temporary storage of spent fuel after cessation of reactor operation which incorporates this decision. Petitioner believes that the decision and rule must be amended to avoid ‘‘prejudging’’ the outcome of the anticipated licensing proceeding on a potential application from the Department of Energy for a construction authorization for a geologic repository at the Yucca Mountain, Nevada site. The NRC is denying the petition because the petition E:\FR\FM\17AUP1.SGM 17AUP1 48330 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Proposed Rules fundamentally misconstrues the decision NRC reached in 1990 and because the information provided in the petition does not meet the criteria NRC set in 1999 for reopening the Waste Confidence findings. Further, the Commission’s commitment to a fair and comprehensive adjudication on a potential license application for Yucca Mountain is not jeopardized by the 2025 date for repository availability. Under these circumstances, the Commission finds no reason to undertake the burden of reopening the Waste Confidence decision. Copies of the petition for rulemaking and the NRC’s letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 11555 Rockville Pike, Room 01–F21, Rockville, Maryland. FOR FURTHER INFORMATION CONTACT: Keith I. McConnell, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone (301) 415– 1743, e-mail: kim@nrc.gov; or E. Neil Jensen, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555–00001, telephone (301) 415–1537, e-mail: enj@nrc.gov. ADDRESSES: SUPPLEMENTARY INFORMATION: Introduction On March 1, 2005, the State of Nevada (Petitioner or the State) submitted a ‘‘State of Nevada Petition for Rulemaking to Amend the Commission’s Waste Confidence Decision and Rule to Avoid Prejudging Yucca Mountain’’ (Petition) which was docketed as a petition for rulemaking under 10 CFR 2.802 of the Commission’s regulations (PRM–51–8). Petitioner asserts that the NRC must amend a decision reached in a 1990 rulemaking, termed the ‘‘Waste Confidence’’ decision,1 that ‘‘at least one mined geologic repository will be available within the first quarter of the twenty-first century’’ as well as a regulation, 10 CFR 51.23(a), which incorporates this decision.2 Petitioner believes that the decision and rule must be amended to avoid ‘‘prejudging’’ the outcome of the anticipated licensing proceeding on a potential application from the Department of Energy (DOE) for a construction authorization for a geologic repository at the Yucca 1 See ‘‘Waste Confidence Decision Review,’’ 55 FR 38474; September 18, 1990. 2 See ‘‘Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation,’’ 55 FR 38472; September 18, 1990. VerDate jul<14>2003 12:19 Aug 16, 2005 Jkt 205001 Mountain, Nevada site (Yucca Mountain). The Commission sees no need to revisit its Waste Confidence decision at this time. We have carefully considered the State’s assertions that changed circumstances warrant reopening of its Waste Confidence findings but, for the reasons described in this decision, we remain unconvinced that there is any present need to resurrect Waste Confidence issues.3 Background To provide context for the petition, some background information on the Commission’s Waste Confidence proceedings is useful. In 1984, the Commission concluded a generic rulemaking proceeding, which has become known as the ‘‘Waste Confidence Rulemaking,’’ designed to assess its degree of confidence that radioactive wastes produced by nuclear facilities could be safely disposed of, to determine when any such disposal would be available, and whether such wastes could be safely stored until safe disposal was available.4 The 1984 rulemaking proceeding enabled the Commission to make the following five findings: (1) that there is reasonable assurance that safe disposal of high-level radioactive waste (HLW) and spent nuclear fuel (SNF) in a mined geologic repository is technically feasible; (2) that there is reasonable assurance that one or more mined geologic repositories for commercial HLW and SNF will be available by the years 2007– 2009, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial HLW and SNF originating in such reactor and generated up to that time; (3) that there is reasonable assurance that HLW and SNF will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all HLW and SNF; (4) that there is reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental 3 The NRC did not seek public comment on the instant petition. In this case, the NRC viewed Nevada’s petition as involving a straightforward application of the Commission’s threshold criterion (‘‘significant and pertinent unexpected events occur, raising substantial doubt about the continuing validity of the 1990 Waste Confidence finding’’ 64 FR 68005; December 6, 1990) for considering a comprehensive reopening of the 1990 Waste Confidence decision, and did not see a need for public comment on such application. 4 See ‘‘Waste Confidence Decision,’’ 49 FR 34658; August 31, 1984. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 impacts for at least 30 years beyond the expiration of that reactor’s operating licenses at that reactor’s spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations (ISFSIs); and (5) that there is reasonable assurance that safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed. 49 FR 34659–34960. The Commission incorporated the second and fourth findings into a new regulation at 10 CFR 51.23 which, among other things, established a generic determination of no significant environmental impact from the temporary storage of spent fuel after the cessation of reactor operation and which also found reasonable assurance that one or more mined geologic repositories for commercial HLW and SNF would be available by the years 2007–2009.5 The Commission also committed to reviewing its Waste Confidence findings should significant and pertinent unexpected events occur or at 5-year intervals until a repository was available. 49 FR 34660. In 1989–1990, the Commission conducted a second Waste Confidence proceeding to review its 1984 findings. As a result, the Commission decided to modify findings two and four as follows: (2) the Commission finds reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twentyfirst century, and 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 HLW and SNF originating in such reactor and generated up to that time; (4) the Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin, or at either onsite or offsite ISFSIs. 55 FR 38474 (emphasis added). Thus, the Commission, in 1990, decided to extend the time-frame of its assurance of the availability of a repository from the 2007–2009 period to 2025, and also expanded on the minimal amount of time for which it had confidence that SNF could be safely stored. Further, ‘‘believ[ing] that predictions of 5 See ‘‘Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating Licenses,’’ 49 FR 34688, 34694; August 31, 1984. E:\FR\FM\17AUP1.SGM 17AUP1 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Proposed Rules repository availability are best expressed in terms of decades rather than years,’’ the Commission decided to change its review period to 10 years or ‘‘whenever significant and pertinent unexpected changes occur [, e.g.,] such events as a major shift in national policy, a major unexpected institutional development, and/or new technical information * * *.’’ 55 FR 38475. In 1999, as the 10 year review period approached, the Commission considered the need for a further Waste Confidence review in the context of events that had occurred since 1990. 64 FR 68005; December 6, 1999. These considerations ‘‘confirm[ed] and strengthen[ed] the Commission’s 1990 findings and le[d] the Commission to conclude that no significant and unexpected events ha[d] occurred—no major shifts in national policy, no major unexpected institutional developments, no unexpected technical information— that would cast doubt on the Commission’s Waste Confidence findings or warrant a detailed reevaluation * * *.’’ 64 FR 68007. For that reason, the Commission determined not to conduct another Waste Confidence review at that time but did state that ‘‘the Commission would consider undertaking a comprehensive reevaluation of the Waste Confidence findings when the impending repository development and regulatory activities run their course or if significant and pertinent unexpected events occur, raising substantial doubt about the continuing validity of the Waste Confidence findings.’’ Id. The Petition The State’s petition focuses on the second Waste Confidence finding and, in particular, on that aspect of the finding that there is reasonable assurance that a repository will be available by 2025. The petitioner believes that this finding must be revised because it is now evident that a repository can only be available by this date if NRC grants DOE’s anticipated application for a license at the Yucca Mountain site at the completion of the adjudicatory proceeding because it would be too late, if NRC were to deny the license application, for DOE to have a repository available at a different site by this date. Petition at 2–3. This situation, in petitioner’s view, impermissibly amounts to prejudging the result of the Yucca Mountain licensing proceeding. Id. In support of its position, petitioner reviews the 1990 Waste Confidence decision and concludes that it relies on three ‘‘critical determinations’’ which petitioner describes as follows: VerDate jul<14>2003 12:19 Aug 16, 2005 Jkt 205001 (1) The acceptability of the Yucca Mountain site should not be presumed, for to do so would prejudge the outcome of the NRC’s licensing review and proceeding; (2) Notwithstanding the twenty-five year lead time required, a second repository site will be available if necessary by the year 2025 because a final decision on the acceptability of the Yucca Mountain site will surely be made by the year 2000, leaving sufficient time (twenty five years) to develop another repository if Yucca Mountain fails; and (3) spent fuel can be stored safely and in an environmentally sound manner until either Yucca Mountain or a second repository becomes available beginning in the year 2025. Petition at 7. Petitioner says that the second ‘‘critical determination’’ has proved to be incorrect, thus requiring the Commission to revise its second Waste Confidence finding. In its 1990 Waste Confidence decision, the Commission concluded that SNF can be safely stored without significant environmental impact for at least 100 years, if necessary. 55 FR 38513 (1990). Petitioner cites recent documents and events which have corroborated and even extended this conclusion such as DOE’s Final Environmental Impact Statement for Yucca Mountain and the increased licensing of independent spent fuel storage installations. Petition at 11–13. Petitioner concludes that these developments support extending the second part of the second Waste Confidence finding (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 HLW and SNF originating in such reactor and generated up to that time) to a longer or even indefinite period. Petition at 13. Thus, petitioner proposes that the regulation which encapsulates the second Waste Confidence finding, 10 CFR 51.23(a), be amended to provide: The Commission has made a generic determination that there is reasonable assurance all licensed reactor spent fuel will be removed from storage sites to some acceptable disposal site well before storage causes any significant safety or environmental impacts. This generic finding does not apply to a reactor or storage site if the Commission has found, in the 10 CFR part 50, part 52, part 54 or part 72 specific licensing proceeding, that storage of spent fuel during the term requested in the license application will PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 48331 cause significant safety or environmental impacts. Petition at 14. Reasons for Denial In 1999, the Commission stated that it would consider undertaking a comprehensive reevaluation of the Waste Confidence findings if either of two criteria were met: (1) ‘‘When the impending repository development and regulatory activities run their course;’’ or (2) ‘‘if significant and pertinent unexpected events occur, raising substantial doubt about the continuing validity of the Waste Confidence findings.’’ 64 FR 68007. Petitioner states that it is not asking NRC to reopen its general finding that one or more safe geologic repositories can be made available on a timely basis. Petition at 7. Nevertheless, because the findings are interrelated, reopening the Waste Confidence inquiry, even if somehow limited in this manner, could be expected to become a large endeavor covering most of the questions considered in the 1990 findings; e.g., multiple questions concerning the timeliness of repository availability and conditions for the extended safe storage of SNF. In 1999, the Commission was reluctant to expend agency resources on such a far-reaching endeavor absent developments which might cast doubt on the Commission’s findings. Barring developments or information meeting the 1999 criteria, the Commission remains unwilling to initiate a reevaluation, even a severely limited one assuming that would be possible, because that would not be a prudent use of the agency’s limited resources. As noted below, the Commission does not believe that petitioner has demonstrated that significant and pertinent unexpected events have occurred, meeting the Commission’s reopening criteria. Petitioner seeks to meet the second prong of these criteria by arguing that two pieces of information constitute the ‘‘significant and pertinent unexpected events’’ which should trigger the Waste Confidence review process. First, petitioner asserts that NRC’s determination that a repository would be available by 2025 was based on the ‘‘express finding’’ that the ‘‘acceptability’’ of Yucca Mountain as a geologic repository would be decided by the year 2000, but that ‘‘we now know that the acceptability of Yucca Mountain will not be decided before 2010 at the earliest (completion of the construction authorization stage).’’ Petition at 7–8. Second, petitioner asserts that the availability of a repository by 2025 assumed a 25-year E:\FR\FM\17AUP1.SGM 17AUP1 48332 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Proposed Rules period would be needed between a possible finding of unacceptability of the Yucca Mountain site in 2000 and the availability of a repository at a different site, but we ‘‘now know that if Yucca Mountain fails on or about the year 2010, fifteen years * * * will not nearly be sufficient time to accomplish all of the steps needed to make another repository actually available.’’ Petition at 8–10. First, we consider petitioner’s assertion that the Commission’s 1990 determination that a repository would be available by 2025 was based on an ‘‘express finding’’ that the acceptability of Yucca Mountain as a geologic repository would be decided by the year 2000. The Commission made no such finding, express or otherwise. What the Commission did state in the 1990 decision was that ‘‘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.’’ 55 FR 38477 (emphasis added). There is a significant difference, in the Waste Confidence decision, between the concept of the ‘‘suitability’’ of Yucca Mountain and the concept of the ‘‘acceptability’’ of Yucca Mountain. ‘‘Suitability’’ refers to the decision the Secretary of Energy must make, on the basis of site characterization activities and other factors, that a particular site is suitable for submission of an application for a construction authorization for a repository. See section 113 of the Nuclear Waste Policy Act of 1982, as amended (NWPA), 42 U.S.C. 10133. Upon finding a particular site to be suitable, the Secretary is required to make a recommendation to the President that the President approve the recommended site for the development of a repository. See section 114 of NWPA, 42 U.S.C. 10134.6 ‘‘Acceptability’’ refers to the decisions NRC must make concerning the licenseability of the site. There are three NRC decision points on a determination of the acceptability (or license-ability) of Yucca Mountain: the first will be the decision of the NRC staff in the licensing proceeding on whether to 6 On February 14, 2002, the Secretary of Energy recommended the Yucca Mountain site for the development of a repository to the President, thereby setting in motion the approval process set forth in sections 114 and 115 of the NWPA. See 42 U.S.C. 10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2). On February 15, 2002, the President recommended the site to Congress. On April 8, 2002, the State of Nevada submitted a notice of disapproval of the site recommendation to which Congress responded, on July 9, 2002, by passing a joint resolution approving the development of a repository at Yucca Mountain which the President signed on July 23, 2002. See Pub. L. No. 107–200, 116 Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 2004). VerDate jul<14>2003 12:19 Aug 16, 2005 Jkt 205001 recommend approval of the license application; the second will be when the Commission, acting in its adjudicatory capacity, determines whether to issue a construction authorization for the repository, see 10 CFR 63.31; and the third will be when the Commission determines whether to issue a license for the receipt and possession of high-level waste, see 10 CFR 63.41. But, to be clear, these considerations as to a site’s ‘‘acceptability’’ were not the basis for deciding on the 2025 date. It is important to examine what NRC actually said in the 1990 Waste Confidence decision with respect to its revision of the second finding because petitioner confuses the concepts of ‘‘suitability’’ and ‘‘acceptability’’ and fundamentally misperceives the second finding. The Nuclear Waste Policy Amendments Act of 1987 (NWPAA) had limited DOE’s site characterization activities to the Yucca Mountain site. In the Commission’s view, ‘‘the possible schedular benefits to single-site characterization * * * 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 [because b]y focusing DOE site characterization activities on Yucca Mountain, the NWPAA ha[d] 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’’ (emphasis added). 55 FR 38494. This was because DOE had 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.’’ Id. Obviously, any DOE finding of unsuitability made after 1990 would not allow an alternative repository site to be available in the 2007–2009 timeframe if 25 years were to be required for this purpose. Moreover, in addition to reliance on a single site, other factors raised doubts that a repository would be available in that time period: the probability that site characterization activities would not proceed entirely without problems; the history of DOE’s schedular slippages; and DOE’s own then-current schedule calling for submittal of a license application in 2001 and for repository availability in 2010. Id. In light of these considerations, it no longer seemed prudent to the Commission in 1990 to reaffirm NRC’s 1984 finding of reasonable assurance PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 that the 2007–2009 timetable would be met. Instead, the Commission decided to take DOE’s estimate of the time it would take to make another repository available if Yucca Mountain were to be found unsuitable (25 years) and then, for the sake of conservatism, make the assumption that Yucca Mountain would not be found suitable. The Commission thought it ‘‘reasonable to expect that DOE would be able to reach this conclusion by the year 2000 [which] would leave 25 years for the attainment of repository operations at another site.’’ 55 FR 38495. Thus, the ‘‘express finding’’ that the Commission made in 1990 was that the suitability (not the acceptability) of Yucca Mountain would be decided by the year 2000, leaving 25 years for the availability of a different repository if DOE found Yucca Mountain to be unsuitable. That DOE in fact found the Yucca Mountain site to be suitable—in early 2002—buttresses the 1990 finding of reasonable assurance that a repository will be available in 2025, within the meaning of our 1990 Waste Confidence decision. That decision rested on a DOE suitability determination by ‘‘about’’ 2000. See 55 FR 38477. DOE made such a determination in early 2002, and thus substantially met our expectation. Given what the Commission actually said in its 1990 Waste Confidence finding, it is easy to see that the significant new information regarding the timing of a repository proferred by petitioner; i.e., that the acceptability (defined in the petition as completion of the construction authorization stage) of Yucca Mountain will not be decided before 2010 at the earliest and that if Yucca Mountain is found to be unacceptable around the year 2010, 15 years will not be sufficient time for DOE to make another repository available, petition at 8, is not the type of information that would meet the Commission’s criteria for reopening. The Commission did not speculate in 1990 as to a date by which it might make a decision on construction authorization; its finding was based solely on its estimate of when DOE might make a suitability determination. The petition assumes that the NRC, in 1990, abandoned its expectation that a repository would become available in the 2007–2009 time frame and selected a new date, 2025, out of a concern that the continued use of the 2007–2009 period for repository availability would ‘‘prejudge’’ its construction authorization decision. Petition at 10. This, too, is an error. ‘‘Availability,’’ as used in the 1990 decision, begins with a DOE projection of when a repository is targeted for E:\FR\FM\17AUP1.SGM 17AUP1 Federal Register / Vol. 70, No. 158 / Wednesday, August 17, 2005 / Proposed Rules availability based on DOE’s estimates of the timing of the suitability determination. 55 FR 38494. These DOE projections were used by the Commission as a starting point for determining ‘‘availability.’’ But, because of DOE’s need to focus exclusively on Yucca Mountain, the probability that site characterization activities would not proceed entirely without problems, and the chronic delays in the program, the Commission was unwilling to accept DOE’s then current projection of repository availability in 2010. Instead, the Commission chose to take a ‘‘conservative’’ approach to the timing of ‘‘availability’’ by setting a conservative upper bound of 2025. See 55 FR 38494, 38595 and 38500. This would allow for DOE’s estimate of a 25year time period needed for the availability of a repository at an alternative site if DOE found the Yucca Mountain site to be unsuitable and had to start over from scratch. If in 1990 the Commission had been thinking in terms of 25 years being needed for an alternate repository site following an adverse Commission finding of acceptability, obviously it could not have chosen 2025 as the date for which it had reasonable confidence that a repository would be available. DOE’s submission of a license application was at that time scheduled to be in 2001, meaning that any Commission rejection of the license could not have been the basis for computing the 25 years needed for evaluation of an alternative site. In fact, the use of a Commission acceptability finding as the basis for repository availability is impossible to implement because it would require the Commission to prejudge the acceptability of any alternative to Yucca Mountain in order to establish a reasonably supported outer date for the Waste Confidence finding. That is, if the Commission were to assume that a license for the Yucca Mountain site might be denied in 2015 and establish a date 25 years hence for the ‘‘availability’’ of an alternative repository (i.e., 2040), it would still need to presume the ‘‘acceptability’’ of the alternate site to meet that date. Because it was untenable to presume the ‘‘acceptability’’ of any site, including Yucca Mountain, the Commission, in 1990, chose instead to take a two pronged approach to determining ‘‘availability.’’ First, it would use DOE’s statutorily mandated suitability determination as a basis for providing assurance that a repository would be available in 2025. Specifically, the Commission stated that it believed that DOE’s site suitability determination VerDate jul<14>2003 12:19 Aug 16, 2005 Jkt 205001 process should provide a ‘‘* * * strong basis for evaluating the likelihood of meeting the 2025 estimate of repository availability.’’ 55 FR 38495. Second, the Commission allowed for reconsideration of its findings pending significant and unexpected events. Certainly, the denial of a license for the Yucca Mountain site would meet these criteria and the Commission would need to reevaluate its findings at that time. The State would recast the approach the Commission took to defining ‘‘availability’’ by presuming that ‘‘some acceptable disposal site’’ would be available at some undefined time in the future. We find this approach inconsistent with that taken in the 1984 Waste Confidence Decision because it provides neither the basis for assessing the degree of assurance that radioactive waste can be disposed of safely nor the basis for determining when such disposal will be available. In sum, petitioner has not submitted any information establishing that significant and pertinent unexpected events have occurred which raise substantial doubt about the continuing validity of the second Waste Confidence finding and, in particular, that reasonable assurance exists that at least one mined geologic repository will be available by 2025. Even if DOE’s estimate as to when it will tender a license application should slip further, the 2025 date would still allow for unforeseen delays in characterization and licensing. It also must be recognized that the Commission remains committed to a fair and comprehensive adjudication and, as a result, there is the potential for the Commission to deny a license for the Yucca Mountain site based on the record established in the adjudicatory proceeding. That commitment is not jeopardized by the 2025 date for repository availability. The Commission did not see any threat to its ability to be an impartial adjudicator in 1990 when it selected the 2025 date even though then, as now, a repository could only become available if the Commission’s decision is favorable. Should the Commission’s decision be unfavorable and should DOE abandon the site, the Commission would need to reevaluate the 2025 availability date, as well as other findings made in 1990. However, that day has not yet come and until it does the Commission finds no reason to undertake the burden of reopening its Waste Confidence findings in the absence of information meeting the criteria it has established for this purpose. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 48333 Conclusion Petitioner misapprehends the Commission’s 1990 Waste Confidence findings and has not shown any significant and pertinent unexpected event that raises substantial doubt about the continuing validity of the 1990 Waste Confidence findings. Accordingly, for the reasons stated above, the NRC denies the petition for rulemaking to amend the Commission’s Waste Confidence decision in its entirety. Dated at Rockville, Maryland, this 10th day of August, 2005. For the Nuclear Regulatory Commission. Andrew L. Bates, Acting Secretary of the Commission. [FR Doc. 05–16253 Filed 8–16–05; 8:45 am] BILLING CODE 7590–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2005–21787; Directorate Identifier 2005–CE–34–AD] RIN 2120–AA64 Airworthiness Directives; Shadin ADC– 2000 Air Data Computers Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: SUMMARY: The FAA proposes to adopt a new airworthiness directive (AD) for certain Shadin ADC–2000 air data computers (ADC) installed on airplanes. This proposed AD would require you to replace affected ADC–2000 units with a modified unit. This proposed AD results from reports that certain ADC–2000 units display incorrect altitude information on the Electronic Flight Information System (EFIS) to the pilot. We are issuing this proposed AD to prevent ADC–2000 units, part numbers (P/Ns) 962830A–1–S–8, 962830A–2–S– 8, and 962830A–3–S–8, configurations B, C, and D, from displaying incorrect altitude information. This could cause the flight crew to react to this incorrect flight information and possibly result in an unsafe operating condition. DATES: We must receive any comments on this proposed AD by October 11, 2005. Use one of the following to submit comments on this proposed AD: • DOT Docket Web Site: Go to http:/ /dms.dot.gov and follow the instructions ADDRESSES: E:\FR\FM\17AUP1.SGM 17AUP1

Agencies

NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 70, Number 158 (Wednesday, August 17, 2005)]
[Proposed Rules]
[Pages 48329-48333]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16253]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket No. PRM-51-8]


State of Nevada; Denial of a Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
denying a petition for rulemaking submitted by the State of Nevada 
(PRM-51-8). The petitioner requests that NRC amend a decision reached 
in a 1990 rulemaking, referred to as the ``Waste Confidence'' decision, 
that at least one mined geologic repository will be available within 
the first quarter of the twenty-first century as well as a regulation 
making a generic determination of no significant environmental impact 
from the temporary storage of spent fuel after cessation of reactor 
operation which incorporates this decision. Petitioner believes that 
the decision and rule must be amended to avoid ``prejudging'' the 
outcome of the anticipated licensing proceeding on a potential 
application from the Department of Energy for a construction 
authorization for a geologic repository at the Yucca Mountain, Nevada 
site. The NRC is denying the petition because the petition

[[Page 48330]]

fundamentally misconstrues the decision NRC reached in 1990 and because 
the information provided in the petition does not meet the criteria NRC 
set in 1999 for reopening the Waste Confidence findings. Further, the 
Commission's commitment to a fair and comprehensive adjudication on a 
potential license application for Yucca Mountain is not jeopardized by 
the 2025 date for repository availability. Under these circumstances, 
the Commission finds no reason to undertake the burden of reopening the 
Waste Confidence decision.

ADDRESSES: Copies of the petition for rulemaking and the NRC's letter 
to the petitioner are available for public inspection or copying in the 
NRC Public Document Room, 11555 Rockville Pike, Room 01-F21, Rockville, 
Maryland.

FOR FURTHER INFORMATION CONTACT: Keith I. McConnell, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-1743, e-mail: kim@nrc.gov; or E. Neil 
Jensen, Office of the General Counsel, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-00001, telephone (301) 415-1537, e-
mail: enj@nrc.gov.

SUPPLEMENTARY INFORMATION:

Introduction

    On March 1, 2005, the State of Nevada (Petitioner or the State) 
submitted a ``State of Nevada Petition for Rulemaking to Amend the 
Commission's Waste Confidence Decision and Rule to Avoid Prejudging 
Yucca Mountain'' (Petition) which was docketed as a petition for 
rulemaking under 10 CFR 2.802 of the Commission's regulations (PRM-51-
8). Petitioner asserts that the NRC must amend a decision reached in a 
1990 rulemaking, termed the ``Waste Confidence'' decision,\1\ that ``at 
least one mined geologic repository will be available within the first 
quarter of the twenty-first century'' as well as a regulation, 10 CFR 
51.23(a), which incorporates this decision.\2\ Petitioner believes that 
the decision and rule must be amended to avoid ``prejudging'' the 
outcome of the anticipated licensing proceeding on a potential 
application from the Department of Energy (DOE) for a construction 
authorization for a geologic repository at the Yucca Mountain, Nevada 
site (Yucca Mountain).
---------------------------------------------------------------------------

    \1\ See ``Waste Confidence Decision Review,'' 55 FR 38474; 
September 18, 1990.
    \2\ See ``Consideration of Environmental Impacts of Temporary 
Storage of Spent Fuel After Cessation of Reactor Operation,'' 55 FR 
38472; September 18, 1990.
---------------------------------------------------------------------------

    The Commission sees no need to revisit its Waste Confidence 
decision at this time. We have carefully considered the State's 
assertions that changed circumstances warrant reopening of its Waste 
Confidence findings but, for the reasons described in this decision, we 
remain unconvinced that there is any present need to resurrect Waste 
Confidence issues.\3\
---------------------------------------------------------------------------

    \3\ The NRC did not seek public comment on the instant petition. 
In this case, the NRC viewed Nevada's petition as involving a 
straightforward application of the Commission's threshold criterion 
(``significant and pertinent unexpected events occur, raising 
substantial doubt about the continuing validity of the 1990 Waste 
Confidence finding'' 64 FR 68005; December 6, 1990) for considering 
a comprehensive reopening of the 1990 Waste Confidence decision, and 
did not see a need for public comment on such application.
---------------------------------------------------------------------------

Background

    To provide context for the petition, some background information on 
the Commission's Waste Confidence proceedings is useful. In 1984, the 
Commission concluded a generic rulemaking proceeding, which has become 
known as the ``Waste Confidence Rulemaking,'' designed to assess its 
degree of confidence that radioactive wastes produced by nuclear 
facilities could be safely disposed of, to determine when any such 
disposal would be available, and whether such wastes could be safely 
stored until safe disposal was available.\4\ The 1984 rulemaking 
proceeding enabled the Commission to make the following five findings:
---------------------------------------------------------------------------

    \4\ See ``Waste Confidence Decision,'' 49 FR 34658; August 31, 
1984.
---------------------------------------------------------------------------

    (1) that there is reasonable assurance that safe disposal of high-
level radioactive waste (HLW) and spent nuclear fuel (SNF) in a mined 
geologic repository is technically feasible;
    (2) that there is reasonable assurance that one or more mined 
geologic repositories for commercial HLW and SNF will be available by 
the years 2007-2009, and that sufficient repository capacity will be 
available within 30 years beyond expiration of any reactor operating 
license to dispose of existing commercial HLW and SNF originating in 
such reactor and generated up to that time;
    (3) that there is reasonable assurance that HLW and SNF will be 
managed in a safe manner until sufficient repository capacity is 
available to assure the safe disposal of all HLW and SNF;
    (4) that there is 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 licenses at that reactor's spent 
fuel storage basin, or at either onsite or offsite independent spent 
fuel storage installations (ISFSIs); and
    (5) that there is reasonable assurance that safe independent onsite 
or offsite spent fuel storage will be made available if such storage 
capacity is needed.
    49 FR 34659-34960. The Commission incorporated the second and 
fourth findings into a new regulation at 10 CFR 51.23 which, among 
other things, established a generic determination of no significant 
environmental impact from the temporary storage of spent fuel after the 
cessation of reactor operation and which also found reasonable 
assurance that one or more mined geologic repositories for commercial 
HLW and SNF would be available by the years 2007-2009.\5\ The 
Commission also committed to reviewing its Waste Confidence findings 
should significant and pertinent unexpected events occur or at 5-year 
intervals until a repository was available. 49 FR 34660.
---------------------------------------------------------------------------

    \5\ See ``Requirements for Licensee Actions Regarding the 
Disposition of Spent Fuel Upon Expiration of Reactor Operating 
Licenses,'' 49 FR 34688, 34694; August 31, 1984.
---------------------------------------------------------------------------

    In 1989-1990, the Commission conducted a second Waste Confidence 
proceeding to review its 1984 findings. As a result, the Commission 
decided to modify findings two and four as follows:
    (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 HLW and SNF originating in such 
reactor and generated up to that time;
    (4) the Commission finds reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 30 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor at its spent fuel storage basin, or at 
either onsite or offsite ISFSIs.
    55 FR 38474 (emphasis added). Thus, the Commission, in 1990, 
decided to extend the time-frame of its assurance of the availability 
of a repository from the 2007-2009 period to 2025, and also expanded on 
the minimal amount of time for which it had confidence that SNF could 
be safely stored. Further, ``believ[ing] that predictions of

[[Page 48331]]

repository availability are best expressed in terms of decades rather 
than years,'' the Commission decided to change its review period to 10 
years or ``whenever significant and pertinent unexpected changes occur 
[, e.g.,] such events as a major shift in national policy, a major 
unexpected institutional development, and/or new technical information 
* * *.'' 55 FR 38475.
    In 1999, as the 10 year review period approached, the Commission 
considered the need for a further Waste Confidence review in the 
context of events that had occurred since 1990. 64 FR 68005; December 
6, 1999. These considerations ``confirm[ed] and strengthen[ed] the 
Commission's 1990 findings and le[d] the Commission to conclude that no 
significant and unexpected events ha[d] occurred--no major shifts in 
national policy, no major unexpected institutional developments, no 
unexpected technical information--that would cast doubt on the 
Commission's Waste Confidence findings or warrant a detailed 
reevaluation * * *.'' 64 FR 68007. For that reason, the Commission 
determined not to conduct another Waste Confidence review at that time 
but did state that ``the Commission would consider undertaking a 
comprehensive reevaluation of the Waste Confidence findings when the 
impending repository development and regulatory activities run their 
course or if significant and pertinent unexpected events occur, raising 
substantial doubt about the continuing validity of the Waste Confidence 
findings.'' Id.

The Petition

    The State's petition focuses on the second Waste Confidence finding 
and, in particular, on that aspect of the finding that there is 
reasonable assurance that a repository will be available by 2025. The 
petitioner believes that this finding must be revised because it is now 
evident that a repository can only be available by this date if NRC 
grants DOE's anticipated application for a license at the Yucca 
Mountain site at the completion of the adjudicatory proceeding because 
it would be too late, if NRC were to deny the license application, for 
DOE to have a repository available at a different site by this date. 
Petition at 2-3. This situation, in petitioner's view, impermissibly 
amounts to prejudging the result of the Yucca Mountain licensing 
proceeding. Id.
    In support of its position, petitioner reviews the 1990 Waste 
Confidence decision and concludes that it relies on three ``critical 
determinations'' which petitioner describes as follows:
    (1) The acceptability of the Yucca Mountain site should not be 
presumed, for to do so would prejudge the outcome of the NRC's 
licensing review and proceeding;
    (2) Notwithstanding the twenty-five year lead time required, a 
second repository site will be available if necessary by the year 2025 
because a final decision on the acceptability of the Yucca Mountain 
site will surely be made by the year 2000, leaving sufficient time 
(twenty five years) to develop another repository if Yucca Mountain 
fails; and (3) spent fuel can be stored safely and in an 
environmentally sound manner until either Yucca Mountain or a second 
repository becomes available beginning in the year 2025.
    Petition at 7. Petitioner says that the second ``critical 
determination'' has proved to be incorrect, thus requiring the 
Commission to revise its second Waste Confidence finding.
    In its 1990 Waste Confidence decision, the Commission concluded 
that SNF can be safely stored without significant environmental impact 
for at least 100 years, if necessary. 55 FR 38513 (1990). Petitioner 
cites recent documents and events which have corroborated and even 
extended this conclusion such as DOE's Final Environmental Impact 
Statement for Yucca Mountain and the increased licensing of independent 
spent fuel storage installations. Petition at 11-13. Petitioner 
concludes that these developments support extending the second part of 
the second Waste Confidence finding (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 HLW and SNF originating in 
such reactor and generated up to that time) to a longer or even 
indefinite period. Petition at 13. Thus, petitioner proposes that the 
regulation which encapsulates the second Waste Confidence finding, 10 
CFR 51.23(a), be amended to provide:
    The Commission has made a generic determination that there is 
reasonable assurance all licensed reactor spent fuel will be removed 
from storage sites to some acceptable disposal site well before storage 
causes any significant safety or environmental impacts.
    This generic finding does not apply to a reactor or storage site if 
the Commission has found, in the 10 CFR part 50, part 52, part 54 or 
part 72 specific licensing proceeding, that storage of spent fuel 
during the term requested in the license application will cause 
significant safety or environmental impacts.
    Petition at 14.

Reasons for Denial

    In 1999, the Commission stated that it would consider undertaking a 
comprehensive reevaluation of the Waste Confidence findings if either 
of two criteria were met: (1) ``When the impending repository 
development and regulatory activities run their course;'' or (2) ``if 
significant and pertinent unexpected events occur, raising substantial 
doubt about the continuing validity of the Waste Confidence findings.'' 
64 FR 68007. Petitioner states that it is not asking NRC to reopen its 
general finding that one or more safe geologic repositories can be made 
available on a timely basis. Petition at 7. Nevertheless, because the 
findings are interrelated, reopening the Waste Confidence inquiry, even 
if somehow limited in this manner, could be expected to become a large 
endeavor covering most of the questions considered in the 1990 
findings; e.g., multiple questions concerning the timeliness of 
repository availability and conditions for the extended safe storage of 
SNF. In 1999, the Commission was reluctant to expend agency resources 
on such a far-reaching endeavor absent developments which might cast 
doubt on the Commission's findings. Barring developments or information 
meeting the 1999 criteria, the Commission remains unwilling to initiate 
a reevaluation, even a severely limited one assuming that would be 
possible, because that would not be a prudent use of the agency's 
limited resources. As noted below, the Commission does not believe that 
petitioner has demonstrated that significant and pertinent unexpected 
events have occurred, meeting the Commission's reopening criteria.
    Petitioner seeks to meet the second prong of these criteria by 
arguing that two pieces of information constitute the ``significant and 
pertinent unexpected events'' which should trigger the Waste Confidence 
review process. First, petitioner asserts that NRC's determination that 
a repository would be available by 2025 was based on the ``express 
finding'' that the ``acceptability'' of Yucca Mountain as a geologic 
repository would be decided by the year 2000, but that ``we now know 
that the acceptability of Yucca Mountain will not be decided before 
2010 at the earliest (completion of the construction authorization 
stage).'' Petition at 7-8. Second, petitioner asserts that the 
availability of a repository by 2025 assumed a 25-year

[[Page 48332]]

period would be needed between a possible finding of unacceptability of 
the Yucca Mountain site in 2000 and the availability of a repository at 
a different site, but we ``now know that if Yucca Mountain fails on or 
about the year 2010, fifteen years * * * will not nearly be sufficient 
time to accomplish all of the steps needed to make another repository 
actually available.'' Petition at 8-10.
    First, we consider petitioner's assertion that the Commission's 
1990 determination that a repository would be available by 2025 was 
based on an ``express finding'' that the acceptability of Yucca 
Mountain as a geologic repository would be decided by the year 2000. 
The Commission made no such finding, express or otherwise. What the 
Commission did state in the 1990 decision was that ``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.'' 
55 FR 38477 (emphasis added). There is a significant difference, in the 
Waste Confidence decision, between the concept of the ``suitability'' 
of Yucca Mountain and the concept of the ``acceptability'' of Yucca 
Mountain.
    ``Suitability'' refers to the decision the Secretary of Energy must 
make, on the basis of site characterization activities and other 
factors, that a particular site is suitable for submission of an 
application for a construction authorization for a repository. See 
section 113 of the Nuclear Waste Policy Act of 1982, as amended (NWPA), 
42 U.S.C. 10133. Upon finding a particular site to be suitable, the 
Secretary is required to make a recommendation to the President that 
the President approve the recommended site for the development of a 
repository. See section 114 of NWPA, 42 U.S.C. 10134.\6\
---------------------------------------------------------------------------

    \6\ On February 14, 2002, the Secretary of Energy recommended 
the Yucca Mountain site for the development of a repository to the 
President, thereby setting in motion the approval process set forth 
in sections 114 and 115 of the NWPA. See 42 U.S.C. 10134(a)(1); 
10134(a)(2); 10135(b), 10136(b)(2). On February 15, 2002, the 
President recommended the site to Congress. On April 8, 2002, the 
State of Nevada submitted a notice of disapproval of the site 
recommendation to which Congress responded, on July 9, 2002, by 
passing a joint resolution approving the development of a repository 
at Yucca Mountain which the President signed on July 23, 2002. See 
Pub. L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. 
10135 note (Supp. IV 2004).
---------------------------------------------------------------------------

    ``Acceptability'' refers to the decisions NRC must make concerning 
the licenseability of the site. There are three NRC decision points on 
a determination of the acceptability (or license-ability) of Yucca 
Mountain: the first will be the decision of the NRC staff in the 
licensing proceeding on whether to recommend approval of the license 
application; the second will be when the Commission, acting in its 
adjudicatory capacity, determines whether to issue a construction 
authorization for the repository, see 10 CFR 63.31; and the third will 
be when the Commission determines whether to issue a license for the 
receipt and possession of high-level waste, see 10 CFR 63.41. But, to 
be clear, these considerations as to a site's ``acceptability'' were 
not the basis for deciding on the 2025 date.
    It is important to examine what NRC actually said in the 1990 Waste 
Confidence decision with respect to its revision of the second finding 
because petitioner confuses the concepts of ``suitability'' and 
``acceptability'' and fundamentally misperceives the second finding. 
The Nuclear Waste Policy Amendments Act of 1987 (NWPAA) had limited 
DOE's site characterization activities to the Yucca Mountain site. In 
the Commission's view, ``the possible schedular benefits to single-site 
characterization * * * 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 [because b]y 
focusing DOE site characterization activities on Yucca Mountain, the 
NWPAA ha[d] 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'' (emphasis added). 55 FR 
38494. This was because DOE had 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.'' Id. Obviously, any DOE finding of 
unsuitability made after 1990 would not allow an alternative repository 
site to be available in the 2007-2009 timeframe if 25 years were to be 
required for this purpose. Moreover, in addition to reliance on a 
single site, other factors raised doubts that a repository would be 
available in that time period: the probability that site 
characterization activities would not proceed entirely without 
problems; the history of DOE's schedular slippages; and DOE's own then-
current schedule calling for submittal of a license application in 2001 
and for repository availability in 2010. Id.
    In light of these considerations, it no longer seemed prudent to 
the Commission in 1990 to reaffirm NRC's 1984 finding of reasonable 
assurance that the 2007-2009 timetable would be met. Instead, the 
Commission decided to take DOE's estimate of the time it would take to 
make another repository available if Yucca Mountain were to be found 
unsuitable (25 years) and then, for the sake of conservatism, make the 
assumption that Yucca Mountain would not be found suitable. The 
Commission thought it ``reasonable to expect that DOE would be able to 
reach this conclusion by the year 2000 [which] would leave 25 years for 
the attainment of repository operations at another site.'' 55 FR 38495. 
Thus, the ``express finding'' that the Commission made in 1990 was that 
the suitability (not the acceptability) of Yucca Mountain would be 
decided by the year 2000, leaving 25 years for the availability of a 
different repository if DOE found Yucca Mountain to be unsuitable.
    That DOE in fact found the Yucca Mountain site to be suitable--in 
early 2002--buttresses the 1990 finding of reasonable assurance that a 
repository will be available in 2025, within the meaning of our 1990 
Waste Confidence decision. That decision rested on a DOE suitability 
determination by ``about'' 2000. See 55 FR 38477. DOE made such a 
determination in early 2002, and thus substantially met our 
expectation.
    Given what the Commission actually said in its 1990 Waste 
Confidence finding, it is easy to see that the significant new 
information regarding the timing of a repository proferred by 
petitioner; i.e., that the acceptability (defined in the petition as 
completion of the construction authorization stage) of Yucca Mountain 
will not be decided before 2010 at the earliest and that if Yucca 
Mountain is found to be unacceptable around the year 2010, 15 years 
will not be sufficient time for DOE to make another repository 
available, petition at 8, is not the type of information that would 
meet the Commission's criteria for reopening. The Commission did not 
speculate in 1990 as to a date by which it might make a decision on 
construction authorization; its finding was based solely on its 
estimate of when DOE might make a suitability determination.
    The petition assumes that the NRC, in 1990, abandoned its 
expectation that a repository would become available in the 2007-2009 
time frame and selected a new date, 2025, out of a concern that the 
continued use of the 2007-2009 period for repository availability would 
``prejudge'' its construction authorization decision. Petition at 10. 
This, too, is an error.
    ``Availability,'' as used in the 1990 decision, begins with a DOE 
projection of when a repository is targeted for

[[Page 48333]]

availability based on DOE's estimates of the timing of the suitability 
determination. 55 FR 38494. These DOE projections were used by the 
Commission as a starting point for determining ``availability.'' But, 
because of DOE's need to focus exclusively on Yucca Mountain, the 
probability that site characterization activities would not proceed 
entirely without problems, and the chronic delays in the program, the 
Commission was unwilling to accept DOE's then current projection of 
repository availability in 2010. Instead, the Commission chose to take 
a ``conservative'' approach to the timing of ``availability'' by 
setting a conservative upper bound of 2025. See 55 FR 38494, 38595 and 
38500. This would allow for DOE's estimate of a 25-year time period 
needed for the availability of a repository at an alternative site if 
DOE found the Yucca Mountain site to be unsuitable and had to start 
over from scratch.
    If in 1990 the Commission had been thinking in terms of 25 years 
being needed for an alternate repository site following an adverse 
Commission finding of acceptability, obviously it could not have chosen 
2025 as the date for which it had reasonable confidence that a 
repository would be available. DOE's submission of a license 
application was at that time scheduled to be in 2001, meaning that any 
Commission rejection of the license could not have been the basis for 
computing the 25 years needed for evaluation of an alternative site. In 
fact, the use of a Commission acceptability finding as the basis for 
repository availability is impossible to implement because it would 
require the Commission to prejudge the acceptability of any alternative 
to Yucca Mountain in order to establish a reasonably supported outer 
date for the Waste Confidence finding. That is, if the Commission were 
to assume that a license for the Yucca Mountain site might be denied in 
2015 and establish a date 25 years hence for the ``availability'' of an 
alternative repository (i.e., 2040), it would still need to presume the 
``acceptability'' of the alternate site to meet that date.
    Because it was untenable to presume the ``acceptability'' of any 
site, including Yucca Mountain, the Commission, in 1990, chose instead 
to take a two pronged approach to determining ``availability.'' First, 
it would use DOE's statutorily mandated suitability determination as a 
basis for providing assurance that a repository would be available in 
2025. Specifically, the Commission stated that it believed that DOE's 
site suitability determination process should provide a ``* * * strong 
basis for evaluating the likelihood of meeting the 2025 estimate of 
repository availability.'' 55 FR 38495. Second, the Commission allowed 
for reconsideration of its findings pending significant and unexpected 
events. Certainly, the denial of a license for the Yucca Mountain site 
would meet these criteria and the Commission would need to reevaluate 
its findings at that time.
    The State would recast the approach the Commission took to defining 
``availability'' by presuming that ``some acceptable disposal site'' 
would be available at some undefined time in the future. We find this 
approach inconsistent with that taken in the 1984 Waste Confidence 
Decision because it provides neither the basis for assessing the degree 
of assurance that radioactive waste can be disposed of safely nor the 
basis for determining when such disposal will be available.
    In sum, petitioner has not submitted any information establishing 
that significant and pertinent unexpected events have occurred which 
raise substantial doubt about the continuing validity of the second 
Waste Confidence finding and, in particular, that reasonable assurance 
exists that at least one mined geologic repository will be available by 
2025. Even if DOE's estimate as to when it will tender a license 
application should slip further, the 2025 date would still allow for 
unforeseen delays in characterization and licensing. It also must be 
recognized that the Commission remains committed to a fair and 
comprehensive adjudication and, as a result, there is the potential for 
the Commission to deny a license for the Yucca Mountain site based on 
the record established in the adjudicatory proceeding. That commitment 
is not jeopardized by the 2025 date for repository availability. The 
Commission did not see any threat to its ability to be an impartial 
adjudicator in 1990 when it selected the 2025 date even though then, as 
now, a repository could only become available if the Commission's 
decision is favorable. Should the Commission's decision be unfavorable 
and should DOE abandon the site, the Commission would need to 
reevaluate the 2025 availability date, as well as other findings made 
in 1990. However, that day has not yet come and until it does the 
Commission finds no reason to undertake the burden of reopening its 
Waste Confidence findings in the absence of information meeting the 
criteria it has established for this purpose.

Conclusion

    Petitioner misapprehends the Commission's 1990 Waste Confidence 
findings and has not shown any significant and pertinent unexpected 
event that raises substantial doubt about the continuing validity of 
the 1990 Waste Confidence findings. Accordingly, for the reasons stated 
above, the NRC denies the petition for rulemaking to amend the 
Commission's Waste Confidence decision in its entirety.

    Dated at Rockville, Maryland, this 10th day of August, 2005.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 05-16253 Filed 8-16-05; 8:45 am]
BILLING CODE 7590-01-P

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