Waste Confidence Decision Update, 59551-59570 [E8-23381]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59551-59570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23381]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[Docket ID-2008-0482]


Waste Confidence Decision Update

AGENCY: Nuclear Regulatory Commission.

ACTION: Update and proposed revision of Waste Confidence Decision.

-----------------------------------------------------------------------

SUMMARY: On September 18, 1990, the Nuclear Regulatory Commission (NRC 
or Commission) issued a decision reaffirming and revising, in part, the 
five Waste Confidence findings reached in its 1984 Waste Confidence 
Decision. The 1984 decision and the 1990 review were products of 
rulemaking proceedings designed to assess the degree of assurance that 
radioactive wastes generated by nuclear power plants can be safely 
disposed of, to determine when such disposal or offsite storage would 
be available, and to determine whether radioactive wastes can be safely 
stored onsite past the expiration of existing facility licenses until 
offsite disposal or storage is available. The Commission has decided to 
again undertake a review of its Waste Confidence findings as part of an 
effort to enhance the efficiency of combined operating license 
proceedings for applications for nuclear power plants anticipated in 
the near future. To assure that its Waste Confidence findings are up-
to-date, the Commission has prepared an update of the findings and 
proposes to revise two of the findings. The purpose of this notice is 
to seek public comment on the update and the proposed revisions.
    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 
sufficient mined geologic repository capacity can reasonably be 
expected to be available within 50-60 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 
without significant environmental impacts for at least 60 years beyond 
the licensed life for operation (which may include the term of a 
revised or renewed license) of that reactor in a combination of storage 
in its spent fuel storage basin and either onsite or offsite 
independent spent fuel storage installations.
    The Commission proposes to reaffirm the remaining findings. Each 
finding, any proposed revisions, and the reasons for revising or 
reaffirming them are discussed below. In keeping with the proposed 
revised Findings 2 and 4, the Commission is publishing concurrently

[[Page 59552]]

in this issue of the Federal Register proposed conforming amendments to 
its 10 CFR part 51 rule providing its generic determination on the 
environmental impacts of storage of spent fuel at, or away from, 
reactor sites after the expiration of reactor operating licenses.

DATES: Submit comments by December 8, 2008. Comments received after 
this date will be considered if it is practical to do so, but NRC is 
able to assure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Comments submitted in writing or in electronic form will be made 
available for public inspection. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    Federal e-Rulemaking Portal: Go to https://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0482]. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
Carol.Gallagher@nrc.gov.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: Rulemaking.Comments@nrc.gov. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1677.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone 301-
415-1677).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.
    You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http:/
/www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
pdr.resource@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Neil Jensen, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone 301-415-8480, e-mail, neil.jensen@nrnc.gov.

SUPPLEMENTARY INFORMATION:

Background

    In October 1979, the NRC initiated a rulemaking proceeding, known 
as the Waste Confidence proceeding, to assess its degree of assurance 
that radioactive wastes produced by nuclear power plants can be safely 
disposed of, to determine when such disposal or offsite storage will be 
available, and to determine whether radioactive wastes can be safely 
stored onsite past the expiration of existing facility licenses until 
offsite disposal or storage is available (44 FR 1372; October 25, 
1979). The Commission's action responded to a remand from the U.S. 
Court of Appeals for the District of Columbia Circuit in State of 
Minnesota v. NRC, 602 F.2d 412 (1979). That case raised the question 
whether an offsite storage or disposal solution would be available for 
the spent nuclear fuel (SNF) produced at the Vermont Yankee and Prairie 
Island reactors at the expiration of the licenses for those facilities 
in the 2007-2009 period or, if not, whether the SNF could be stored at 
those reactor sites until an offsite solution was available. The Waste 
Confidence proceeding also stemmed from the Commission's statement, in 
its denial of a petition for rulemaking filed by the Natural Resources 
Defense Council (NRDC), that it intended to reassess periodically its 
finding of reasonable assurance that methods of safe permanent disposal 
of high-level radioactive waste (HLW) would be available when they were 
needed. Further, the Commission stated that, as a matter of policy, it 
``would not continue to license reactors if it did not have reasonable 
confidence that the wastes can and will in due course be disposed of 
safely.'' (42 FR 34391, 34393; July 5, 1977, pet. for rev. dismissed 
sub nom. NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978)).\1\
---------------------------------------------------------------------------

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

    The Waste Confidence proceeding resulted in five Waste Confidence 
findings which the Commission issued August 31, 1984; 49 FR 34658:
    (1) The Commission finds reasonable assurance that safe disposal of 
HLW and SNF in a mined geologic repository is technically feasible;
    (2) The Commission finds reasonable assurance that one or more 
mined geologic repositories for commercial HLW and SNF will be 
available by the years 2007-2009, and that sufficient repository 
capacity will be available within 30 years beyond the expiration of any 
reactor operating license to dispose of existing commercial HLW and SNF 
originating in such reactor and generated up to that time;
    (3) The Commission finds reasonable assurance that HLW and SNF will 
be managed in a safe manner until sufficient repository capacity is 
available to assure the safe disposal of all HLW and SNF;
    (4) The Commission finds reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 30 years beyond the 
expiration of that reactor's operating license at that reactor's spent 
fuel storage basin, or at either onsite or offsite independent spent 
fuel storage installations (ISFSIs);
    (5) The Commission finds reasonable assurance that safe independent 
onsite or offsite spent fuel storage will be made available if such 
storage capacity is needed.
    Based on these findings, the Commission amended 10 CFR part 51 of 
its regulations to provide a generic determination, codified in 10 CFR 
51.23(a), that for at least 30 years beyond the expiration of reactor 
operating licenses, no significant environmental impacts will result 
from the storage of spent fuel in reactor facility storage pools or 
ISFSIs located at reactor or away-from-reactor sites.
    The Commission conducted a review of its findings in 1989-1990 
which resulted in the revision of the second and fourth findings to 
reflect revised expectations for the date of availability of the first 
repository, and to clarify that the expiration of a reactor's operating 
license referred to the full 40 year initial license for operation, as 
well as any additional term of a revised or renewed license. These 
findings are:

[[Page 59553]]

    (2) The Commission finds reasonable assurance that at least one 
mined geologic repository will be available within the first quarter of 
the twenty-first century, and sufficient repository capacity will be 
available within 30 years beyond the licensed life for operation (which 
may include the term of a revised or renewed license) of any reactor to 
dispose of the commercial HLW and SNF originating in such reactor and 
generated up to that time;
    (4) The Commission finds reasonable assurance that, if necessary, 
spent fuel generated in any reactor can be stored safely and without 
significant environmental impacts for at least 30 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor at its spent fuel storage basin, or at 
either onsite or offsite ISFSIs.
    The Commission amended the generic determination made in 10 CFR 
51.23(a) consistent with these revised findings (55 FR 38472; September 
18, 1990):

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

This generic determination is applied in licensing proceedings 
conducted under 10 CFR Parts 50, 52, 54 and 72. See 10 CFR 51.23 
(2008).
    In 1999, the Commission reviewed its Waste Confidence findings and 
concluded that experience and developments since 1990 had confirmed the 
findings and made a comprehensive reevaluation of the findings 
unnecessary. It also stated that it would consider undertaking such a 
reevaluation 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 (64 FR 68005; December 6, 1999).
    The Commission does not believe that the criteria set in 1999 for 
reopening the Waste Confidence findings have been met. However, the 
Commission is now preparing to conduct a significant number of 
proceedings on combined construction permit and operating license (COL) 
applications for new reactors. The Commission anticipates that the 
issue of waste confidence may be raised in those proceedings and 
desires to take a fresh look at its Waste Confidence findings to take 
into account developments since 1990. For this purpose, the Commission 
has prepared this update of the Waste Confidence findings and now 
proposes the following revisions of Findings 2 and 4:
    (2) The Commission finds reasonable assurance that sufficient mined 
geologic repository capacity can reasonably be expected to be available 
within 50-60 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 60 years beyond the 
licensed life for operation (which may include the term of a revised or 
renewed license) of that reactor in a combination of storage in its 
spent fuel storage basin and either onsite or offsite ISFSIs.
    The update restates and supplements the bases for the earlier 
findings. The Commission seeks public comment on the update and on its 
proposed revisions of Findings 2 and 4.
    The Commission is also publishing concurrently in this issue of the 
Federal Register a proposed rule revising 10 CFR 51.23(a) to conform 
with the proposed revisions of Findings 2 and 4.

I. 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

A. Bases for Finding 1

    The Commission reached this finding in 1984 and reaffirmed it in 
1990. The focus of this finding is on whether safe disposal of HLW and 
SNF is technically possible using existing technology and without a 
need for any fundamental breakthroughs in science and technology. To 
reach this finding, the Commission considered the basic features of a 
repository designed for a multi-barrier system for waste isolation and 
examined the problems the Department of Energy (DOE) would need to 
resolve in developing a final design for such a repository. The 
Commission identified three major technical problems: (1) The selection 
of a suitable geologic setting as host for a technically acceptable 
repository site; (2) the development of waste packages that will 
contain the waste until the fission products are greatly reduced; and 
(3) the development of engineered barriers, such as backfilling and 
sealing of the drifts and shafts of the repository, that can 
effectively retard migration of radionuclides out of the repository (49 
FR 34667; August 31, 1984).
    DOE's selection of a suitable geologic setting has been governed by 
Congress' passage of the Nuclear Waste Policy Act of 1982, Public Law 
97-425, 42 U.S.C. 10101 et seq. (NWPA) and by the 1987 amendments to 
NWPA in the Nuclear Waste Policy Amendments Act, Pub. L. 100-202 
(NWPAA). DOE had begun to explore potential repository sites before the 
NWPA, but that Act set in place a formal process and schedule for the 
development of two geologic repositories. The following brief summary 
of key provisions of these Acts may assist readers in understanding the 
process followed by DOE in locating a suitable geologic setting.
    As initially enacted, NWPA directed DOE to issue guidelines for the 
recommendation of sites and then to nominate at least 5 sites as being 
suitable for site characterization for selection as the first 
repository site and, not later than January 1, 1985, to recommend 3 of 
those sites to the President for characterization as candidate sites. 
Section 112 of NWPA, 42 U.S.C. 10132. Not later than July 1, 1989, DOE 
was to again nominate 5 sites and recommend 3 of them to the President 
for characterization for selection of the second repository. Id. DOE 
was then to carry out site characterization activities for approved 
sites. Section 113 of NWPA, 42 U.S.C. 10133. Following site 
characterization, DOE was then to recommend sites to the President as 
suitable for development as repositories and the President was to 
recommend one site to the Congress by March 31, 1987, and another site 
by March 31, 1989, for development as the first two repositories. 
Section 114 of NWPA, 42 U.S.C. 10134. States and affected Indian tribes 
were given the opportunity to object, but if the recommendations were 
approved by Congress, DOE was then to submit applications for a 
construction authorization to NRC. Id. NRC was given until January 1, 
1989, to reach a decision on the first application and until January 1, 
1992, on the second. The Commission was directed to prohibit the 
emplacement in the first repository of more than 70,000 metric tons of 
heavy metal (MTHM) until a

[[Page 59554]]

second repository was in operation. Id. The 1987 NWPAA, inter alia, 
restricted site characterization solely to a site at Yucca Mountain, NV 
(YM) and terminated the program for a second repository. The NWPAA 
provided that if DOE at any time determines YM to be unsuitable for 
development as a repository, DOE must report to Congress its 
recommendations for further action to assure the safe, permanent 
disposal of SNF and HLW, including the need for new legislation. 
Section 113 of NWPA, as amended, 42 U.S.C. 10133.
    In 1984, the Commission reviewed DOE's site exploration program and 
concluded that it was 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 
would be identified (49 FR 34668; August 31, 1984). In 1990, the 
Commission noted that the 1987 amendment of NWPA that focused solely on 
the YM site carried the potential for considerable delay in opening a 
repository if that site were found to be unlicenseable. However, the 
possibility of that delay did not undermine the Commission's confidence 
that a technically acceptable site would be located, either at YM or 
elsewhere. The Commission observed that the NRC staff had provided 
extensive comments on DOE's draft environmental assessments of the 9 
sites it had identified as being potentially acceptable and on the 
final environmental assessments for the 5 sites nominated.\2\ NRC had 
not identified any fundamental technical flaw or disqualifying factor 
which would render any of the sites unsuitable for characterization or 
potentially unlicenseable, although NRC noted that many issues would 
need to be resolved during site characterization for YM or any other 
site (55 FR 38486; September 18, 1990).
---------------------------------------------------------------------------

    \2\ Under the program established by the initial NWPA, DOE had 
nominated sites at Hanford WA, Yucca Mountain NV, Deaf Smith County 
TX, Davis Canyon UT, and Richton Dome MS, and had recommended the 
first 3 sites for site characterization.
---------------------------------------------------------------------------

    With respect to the development of effective waste packages, the 
Commission, in 1984, reviewed DOE's scientific and engineering program 
on this subject. The Commission also considered whether the possibility 
of renewed reprocessing of SNF might alter the technical feasibility of 
achieving a suitable waste package because of the need to accommodate a 
waste form other than spent fuel. The Commission concluded that the 
studies of DOE and others demonstrated that the chemical and physical 
properties of SNF and HLW can be sufficiently understood to permit the 
design of a suitable waste package and that the possibility of 
commercial reprocessing would not substantially affect this conclusion 
(49 FR 34671; August 31, 1984). In 1990, the Commission reviewed 
continued research and experimentation on waste packages that were 
undertaken by DOE in other countries, particularly Sweden and Canada. 
NRC noted that DOE had narrowed the range of waste package designs to a 
design tailored for unsaturated tuff at the YM site due to the 1987 
redirection of the HLW program. NRC also noted that some reprocessing 
wastes from the defense program and the West Valley Demonstration 
Project were now anticipated to be disposed in the repository. However, 
NRC remained confident that, given a range of waste forms and 
conservative test conditions, the technology is available to design 
acceptable waste packages (55 FR 38489; September 18, 1990).
    With respect to the development of effective engineered barriers, 
the Commission's confidence in 1984 rested upon its consideration of 
DOE's ongoing research and development activities regarding backfill 
materials and borehole and shaft sealants which led it to the 
conclusion that these activities provided a basis for reasonable 
assurance that engineered barriers can be developed to isolate or 
retard radioactive material released by the waste package (49 FR 34671; 
August 31, 1984). In 1990, although DOE's research had narrowed to 
focus on YM, the Commission continued to have confidence that backfill 
or packing materials can be developed as needed for the underground 
facility and waste package, and that an acceptable seal can be 
developed for candidate sites in different geologic media (55 FR 38489-
38490; September 18, 1990).

B. Evaluation of Finding 1

    There remains high confidence among the scientific and technical 
community engaged in waste management that safe geologic disposal is 
achievable with currently available technology. See, e.g., National 
Research Council, ``Technical Bases for Yucca Mountain Standards,'' 
1995. No insurmountable technical or scientific problem has emerged to 
disturb this confidence that safe disposal of SNF and HLW can be 
achieved in a mined geologic repository. To the contrary, there has 
been significant progress in the enhancement of scientific 
understanding and technological development needed for geologic 
disposal over the past 18 years. There is now a much deeper 
understanding of processes that affect the ability of repositories to 
isolate waste over long periods. Id. at 71-72; International Atomic 
Energy Agency (IAEA), ``Scientific and Technical Basis for the Geologic 
Disposal of Radioactive Wastes, Technical Reports Series No. 413,'' 
2003. The ability to characterize and quantitatively assess the 
capabilities of geologic and engineered barriers has been repeatedly 
demonstrated. NRC, ``Disposal of High-Level Radioactive Wastes in a 
Proposed Geologic Repository at Yucca Mountain, Nevada; Proposed 
Rule,'' (64 FR 8640, 8649; February 22, 1999); Organization for 
Economic Cooperation and Development, Nuclear Energy Agency, ``Lessons 
Learned from Ten Performance Assessment Studies,'' 1997. Specific sites 
have been investigated and extensive experience has been gained in 
underground engineering. IAEA, ``Radioactive Waste Management Studies 
and Trends, IAEA/WMDB/ST/4,'' 2005; IAEA, ``The Use of Scientific and 
Technical Results from Underground Research Laboratory Investigations 
for the Geologic Disposal of Radioactive Waste, IAEA-TECDOC-1243,'' 
2001. These advances and others throughout the world, in underground 
research laboratories, continue to confirm the soundness of the basic 
concept of deep geologic disposal. IAEA, ``Joint Convention on Safety 
of Spent Fuel Management and on Safety of Radioactive Waste Management, 
INFCIRC/546,'' 1997.
    In the United States, the technical approach for safe HLW disposal 
has remained unchanged for several decades: Use a deep geologic 
repository containing natural barriers to hold canisters of HLW with 
additional engineered barriers to further retard radionuclide release. 
Although some specifics in this technical approach have changed in 
response to new knowledge (e.g., engineered backfill was removed as a 
design concept for YM in the late 1990s in response to enhanced 
understandings of heat and water transfer processes in the near-field 
drift environment), safe disposal continues to appear to be a feasible 
goal with current technology. Assessments for long-term performance of 
a potential repository at YM were conducted by DOE in 1998 (DOE/RW-
0508, Viability Assessment) and 2002 (DOE/RW-0539, Site 
Recommendation). These assessments used existing technology and 
available scientific information, and did not identify areas where 
fundamental

[[Page 59555]]

breakthroughs in science or technology were needed to support the 
assessments.
    With respect to the issue of identifying a suitable geologic 
setting as host for a technically acceptable site, DOE made its 
suitability determination for the YM site in 2002. On June 3, 2008, DOE 
submitted the application to NRC and on September 08, 2008, NRC Staff 
notified DOE that it found the application acceptable for docketing (73 
FR 53284; September 15, 2008). Whether this particular site will be 
found to be technically acceptable must await the outcome of an NRC 
licensing proceeding. The 1987 amendments to NWPA barred DOE from 
continuing site investigations elsewhere within the U.S. However, 
Congress' decision to focus solely on YM was not based on any finding 
that information DOE had obtained on other sites ruled them out for 
technical reasons; rather, the decision was aimed at controlling the 
costs of the HLW program (55 FR 38486; September 18, 1990). Repository 
programs in other countries are actively considering crystalline rock, 
clay formations, and salt formations as repository host media. IAEA, 
``Radioactive Waste Management Status and Trends, IAEA/WMDB/ST/4,'' 
2005; IAEA, ``The Use of Scientific and Technical Results from 
Underground Research Laboratory Investigations for the Geologic 
Disposal of Radioactive Waste, IAEA-TECDOC-1243,'' 2001. Many of these 
programs have been conducting research on these geologic media for 
several decades. Although there are relative strengths to the 
capabilities of each of these potential host media, no geologic media 
previously identified as a candidate host has been ruled out based on 
technical or scientific information. Salt formations currently are 
being considered as hosts only for reprocessed nuclear materials 
because heat-generating waste, like spent nuclear fuel, exacerbates a 
process by which salt can rapidly deform. This process could 
potentially cause problems for keeping drifts stable and open during 
the operating period of a repository.
    In 2001, NRC amended its regulations to include a new 10 CFR Part 
63, ``Disposal of High-Level Radioactive Wastes in a Geologic 
Repository at Yucca Mountain, Nevada,'' (66 FR 55732; November 2, 
2001), which requires use of both natural and engineered barriers to 
meet overall total system performance objectives without pre-determined 
subsystem performance requirements, such as substantially complete 
containment for a waste package, as is required in 10 CFR Part 60.\3\ 
Accordingly, U.S. research and development activities have focused on 
understanding the long-term capability of natural and engineered 
barriers which can prevent or substantially reduce the release rate of 
radionuclides from a potential repository system. Although the 
performance of individual barriers may change through time, the overall 
performance of the total system is required to be acceptable throughout 
the performance period for the repository. In this context of total 
system performance, research and development has supported the view 
that it appears technically possible to design and construct a waste 
package and an engineered barrier system that, in conjunction with 
natural barriers, could prevent or substantially reduce the release 
rate of radionuclides from a potential repository system during the 
performance period. NRC, ``Disposal of High-Level Radioactive Wastes in 
a Proposed Geologic Repository at Yucca Mountain, Nevada; Proposed 
Rule,'' (64 FR 8649; February 22, 1999); IAEA, ``Joint Convention on 
Safety of Spent Fuel Management and on Safety of Radioactive Waste 
Management, INFCIRC/546,'' 1997.
---------------------------------------------------------------------------

    \3\ NRC's regulations at 10 CFR Part 63 apply only to the 
proposed repository at YM. NRC's regulations at 10 CFR Part 60, 
``Disposal of High-Level Radioactive Wastes in Geologic 
Repositories,'' govern the licensing of any repository other than 
one located at YM. However, at the time Part 63 was proposed, the 
Commission indicated it would consider revising Part 60 if it seemed 
likely to be used in the future. 64 FR 8640, 8643; February 22, 
1999.
---------------------------------------------------------------------------

    Since the Commission last considered Waste Confidence issues, NRC 
has issued design certifications under its regulations at 10 CFR Part 
52, ``Early Site Permits; Standard Design Certifications; and Combined 
Licenses for Nuclear Power Plants,'' and is currently reviewing several 
plant designs in response to applications for design certifications and 
for COL applications that reference designs under review or designs 
previously certified. These facilities would use the same or similar 
fuel assembly designs as the nuclear power plants currently operating 
in the United States. A need for possible design changes for repository 
disposal may be affected by the extent of a licensee's reliance on 
cladding or fuel type as a barrier to waste isolation. If limited 
reliance is placed on the barrier capabilities of cladding or fuel type 
in a demonstration of compliance with repository safety requirements, 
then minimal design changes may be needed to accommodate new types of 
SNF or cladding. As such, the new reactor designs and specific license 
applications currently under review would not raise issues as to the 
technical feasibility of repository disposal.
    NRC is also engaged in preliminary interactions with DOE and 
possible reactor vendors proposing advanced reactor designs that are 
different from the currently operating light-water reactors. Some of 
these advanced reactors use gas-cooled or liquid metal cooled 
technologies and have fuel and reactor components that might require 
different transportation and storage containers. Geometric, thermal, 
and criticality constraints could conceivably require a design 
modification to disposal containers from that currently proposed for 
YM. Nevertheless, the technical requirements for disposal of advanced 
reactor components appear similar to the requirements for disposal of 
components for current light water reactors. For example, DOE currently 
plans to dispose of spent fuel at YM from both gas-cooled (Peach Bottom 
1) and liquid-metal cooled (Fermi 1) reactors, using the same basic 
technological approach as for other SNF. Although radionuclide 
inventory, fuel matrix, and cladding characteristics for advanced fuels 
might be distinct from current light-water reactors, the safe disposal 
of advanced fuel appears to involve the same scientific and engineering 
knowledge as used for fuel from current light-water reactors.
    There is currently a high uncertainty regarding the growth of 
advanced reactors in the U.S. The licensing strategy developed by NRC 
and DOE for the next generation nuclear plant (NGNP) program found that 
an aggressive licensing approach may lead to operation of a prototype 
facility in 2021. Based on comparison with current disposal strategies 
for fuel from existing gas cooled or liquid-metal cooled reactors, NRC 
is confident that current technology appears to be adequate to support 
the safe disposal of spent fuel from a potential prototype facility. In 
addition to the NGNP activities related to the prototype reactor, 
various activities, such as DOE's Advanced Fuel Cycle Initiative, are 
underway to evaluate fuel cycle alternatives that could affect the 
volume and form of waste from the prototype reactor or other advanced 
nuclear reactor designs. The need to consider waste disposal as part of 
the overall research and development activities for advanced reactors 
is recognized and included in the activities of designers, DOE and NRC. 
See, e.g., DOE Nuclear Energy Research Advisory Committee and the 
Generation IV International Forum, ``A Technology Roadmap for 
Generation IV

[[Page 59556]]

Nuclear Energy Systems,'' December 2002.
    Based on the information described previously, the Commission 
proposes to reaffirm Finding 1.

II. Finding 2 (1990): 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

A. Bases for Finding 2

    The dual objectives of this finding are to predict when a 
repository will be available for use and to predict how long spent fuel 
may need to be stored at a reactor site until repository space is 
available for the spent fuel generated at that reactor. With respect to 
the first prediction, the Commission's focus in 1984 was on the years 
2007-2009, the years during which the operating licenses for the 
Vermont Yankee and Prairie Island nuclear power plants would expire.\4\ 
In 1984, DOE anticipated that the first repository would begin 
operation in 1998 and the second in 2004. However, NRC concluded that 
technical and institutional uncertainties made it preferable to focus 
on the 2007-2009 time period. The technical uncertainties involved the 
questions of how long it would take DOE to locate a suitable geologic 
setting for a potentially technically acceptable repository and how 
long it would take to develop an appropriate waste package and 
engineered barriers. The Commission expressed the view that despite 
early delays DOE's program was on track and, under the impetus given by 
the recently-enacted NWPA, would timely resolve the technical problems 
(49 FR 34674-34675; August 31, 1984).
---------------------------------------------------------------------------

    \4\ Under the court remand which precipitated the initial waste 
confidence review, NRC was required to consider whether there was 
reasonable assurance that an offsite storage solution would be 
available by the years 2007-2009 and, if not, whether there was 
reasonable assurance that the spent fuel could be stored safely at 
those sites beyond those dates. See State of Minnesota v. NRC, 602 
F.2d 412, 418 (DCDC Cir. 1979).
---------------------------------------------------------------------------

    The Commission also identified institutional uncertainties that 
needed to be resolved: (1) Measures for dealing with Federal-state 
disputes; (2) An assured funding mechanism that would be sufficient 
over time to cover the period for developing a repository; (3) An 
organizational capability for managing the HLW program; and (4) A firm 
schedule and establishment of responsibilities. The Commission 
expressed its confidence in the ability of the provisions of the then 
recently-passed NWPA to timely resolve these uncertainties (49 FR 
34675-34679; August 31, 1984).
    With respect to the second prediction, NRC reviewed DOE's estimates 
of the amount of installed generating capacity of commercial nuclear 
power plants in the year 2000 and concluded that the total amount of 
spent fuel that would be produced during the operating lifetimes of 
these reactors would likely be about 160,000 MTHM. To accommodate this 
amount, NRC assumed that two repositories would be needed. NRC 
calculated that if the first repository began to receive SNF in 2005, 
and the second in 2008, then all the SNF would be emplaced by about 
2026. This would mean that sufficient repository capacity would be 
available within 30 years beyond the expiration of any reactor license 
for disposal of its SNF (49 FR 34679; August 31, 1984).
    In reviewing these predictions in 1990, the Commission faced a 
considerably changed landscape. First, DOE's schedule for the 
availability of a repository had slipped several times so that its 
then-current projection was 2010. Second, Congress' 1987 amendment of 
NWPA had confined site characterization to the YM site, meaning that 
there were no ``back-up'' sites being characterized in case the YM site 
should be found unsuitable or unlicenseable. Finally, site 
characterization activities at YM had not proceeded without problems, 
notably in DOE's schedule for sub-surface exploration and in 
development of its quality assurance program. Given these 
considerations, the Commission found it would not be prudent to 
reaffirm its confidence in the availability of a repository in the 
2007-2009 period (55 FR 38495; September 18, 1990).
    Instead, the Commission found that it would be reasonable to assume 
that DOE could make its finding whether YM was suitable for development 
of a repository by the year 2000. The Commission was unwilling to 
assume that DOE would make a finding of suitability (which would be 
necessary for a repository to be available by 2010). To establish a new 
time-frame for repository availability, the Commission made the 
assumption that DOE would find the YM site unsuitable by the year 2000 
and that (as DOE had estimated) it would take 25 years for a repository 
to become available at a different site.
    The Commission then considered whether it had sufficient bases for 
confidence that a repository would be available by 2025 using the same 
technical and institutional criteria it had used in 1984. The 
Commission found no reason to believe that another potentially 
technically acceptable site could not be located if the YM site were 
found unsuitable. The development of a waste package and engineered 
barriers was tied up with the question of the suitability of the YM 
site but NRC found no reason to believe that a waste package and 
engineered barriers could not be developed for a different site by 
2025, if necessary (55 FR 38495; September 18, 1990). The institutional 
uncertainties were perhaps more difficult to calculate. The Commission 
acknowledged that DOE's efforts to address the concerns of States, 
local governments and Indian tribes had met with mixed results. 
Nevertheless, the Commission retained its confidence that NWPA, as 
amended, had 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 waste 
disposal (55 FR 38497; September 18, 1990). Similarly, the Commission 
believed that management and funding issues had been adequately 
resolved by NWPA, as amended, and would not call into question the 
availability of a repository by 2025 (55 FR 38497-38498; September 18, 
1990). Thus, except for the schedule, the Commission was confident that 
the HLW program set forth in the amended NWPA would ultimately be 
successful.
    The Commission also considered whether the termination of 
activities for a second repository, combined with the 70,000 MTHM limit 
for the first repository, together with its new projection of 2025 as 
the time for the availability for a repository, undermined its 
prediction that sufficient repository capacity would be available 
within 30 years beyond expiration of any reactor operating license to 
dispose of the SNF originating in such reactor and generated up to that 
time (55 FR 38501-38504; September 18, 1990). The Commission noted that 
almost all reactor licenses would not expire until some time in the 
first three decades of the twenty-first century and license renewal was 
expected to extend the terms of some of these licenses. Thus, a 
repository was not needed by 2007-2009 to provide disposal capacity 
within 30 years beyond expiration of

[[Page 59557]]

most operating licenses.\5\ The Commission acknowledged, however, that 
it appeared likely that two repositories would be needed to dispose of 
all the SNF and HLW from the current generation of reactors unless 
Congress provided statutory relief from the 70,000 MTHM limit for the 
first repository and unless the first repository had adequate capacity 
to hold all the SNF and HLW generated. This was because DOE's spent 
fuel projections, in 1990, called for 87,000 MTHM to have been 
generated by the year 2036. In addition, DOE's projections were based 
on the assumption of no new reactor orders. The Commission believed 
that that assumption probably underestimated the total spent fuel 
discharges to be expected due to the likelihood of reactor license 
renewals. The Commission expressed the belief that if the need for a 
second repository was established, Congress would provide the needed 
institutional support and funding, as it had for the first 
repository.\6\ The Commission reasoned that if work began on the second 
repository program in 2010, that repository could be available by 2035. 
Two repositories available in approximately 2025 and 2035, each with 
acceptance rates of 3400 MTHM/year within several years after 
commencement of operations, would provide assurance that sufficient 
repository capacity will be available within 30 years of operating 
license expiration for reactors to dispose of the spent fuel generated 
at their sites up to that time. The Commission concluded that a second 
repository, or additional capacity at the first repository, would be 
needed only to accommodate the additional quantity of spent fuel 
generated during the later years of reactors operating under a renewed 
license. The Commission stated that the availability of a second 
repository would permit spent fuel to be shipped offsite well within 30 
years after expiration of these reactors' operating licenses and that 
the same would be true of the spent fuel discharged from any new 
generation of reactor designs (55 FR 38503-38504; September 18, 1990).
---------------------------------------------------------------------------

    \5\ NRC identified Dresden 1, licensed in 1959, as the earliest 
licensed power reactor and noted that 30 years beyond its licensed 
life for operation would be 2029 and that it was possible, if a 
repository were to become available by 2025, for all the Dresden 1 
SNF to be removed from that facility by 2029 (55 FR 38502; September 
18, 1991).
    \6\ DOE is statutorily required to report to the President and 
to Congress on the need for a second repository between January 1, 
2007 and January 1, 2010. Section 161 of NWPA, as amended, 42 U.S.C. 
10172a. DOE intends to submit the report in 2008.
---------------------------------------------------------------------------

    The Commission acknowledged that there were several licenses that 
had been prematurely terminated where it was possible that SNF would be 
stored more than 30 years beyond the effective expiration of the 
license and that there could be more of these premature terminations. 
However, the Commission remained confident that in these cases, the 
overall safety and environmental impacts of extended spent fuel storage 
would be insignificant. The Commission had found that spent fuel could 
be safely stored for at least 100 years (Finding 4), \7\ and that spent 
fuel in at-reactor storage would be safely maintained until disposal 
capacity at a repository was available (Finding 3). The Commission 
emphasized that it had not identified a date by which a repository must 
be available for health and safety reasons. The Commission found that 
in effect, under the second part of Finding 2, safe management and safe 
storage would not need to continue for more than 30 years beyond 
expiration of any reactor's operating license because sufficient 
repository capacity was expected to become available within those 30 
years (55 FR 38504; September 18, 1990).
---------------------------------------------------------------------------

    \7\ The Commission conservatively assumed that licenses would be 
renewed for 30 year terms (55 FR 38503; September 18, 1990). Thus, 
the initial 40 year term of the operating license, plus 30 years for 
the renewed operating license term and 30 years beyond the 
expiration of the renewed license amounts to storage for at least 
100 years.
---------------------------------------------------------------------------

B. Evaluation of Finding 2

    As explained previously, the Commission based its estimate in 1990 
on the premise that at least one geologic repository would be available 
within the first quarter of the twenty-first century on an assumption 
that DOE would make its suitability determination under section 114 of 
NWPA around the year 2000. To avoid being put in the position of 
assuming the suitability of the YM site, the Commission then assumed 
that DOE would find that site unsuitable and, as DOE had estimated, 
that it would take 25 years before a repository could become available 
at an alternate site.
    DOE made its suitability determination in early 2002 and found the 
YM site suitable for development as a repository.\8\ Although DOE's 
application for a construction authorization for a repository was 
considerably delayed from the schedule set out in NWPA, \9\ on June 3, 
2008, DOE submitted the application to NRC and on September 08, 2008, 
NRC Staff notified DOE that it found the application acceptable for 
docketing (73 FR 53284; September 15, 2008). DOE's current estimate of 
the best achievable date for opening of the YM repository, assuming it 
is licensed, is 2020. At the hearing before the Subcommittee on Energy 
and Air Quality of the House Committee on Energy and Commerce held on 
July 15, 2008, Edward F. Sproat III, Director of DOE's Office of 
Civilian Radioactive Waste Management (OCRWM), informed the Congress 
that DOE could be ready to begin accepting SNF by 2020, but only if 
adequate funding is provided.
---------------------------------------------------------------------------

    \8\ On February 14, 2002, the Secretary of Energy recommended 
the YM site for the development of a repository to the President 
thereby setting in motion the approval process set forth in sections 
114 and 115 of the 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 YM 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)).
    \9\ Section 114(b) of NWPA directs the Secretary of Energy to 
submit a construction authorization application to NRC within 90 
days of the date the site designation becomes effective. 42 U.S.C. 
10134(b).
---------------------------------------------------------------------------

    The NWPA process thus remains on track for making available a 
geologic repository for the disposal of SNF and HLW. DOE's projection 
of a date for repository availability has moved from 2010 in 1990 to 
2020 today and could slip further. Even with some slippage in DOE's 
schedule, it remains possible that a repository will be available by 
2025. Of course, now the only repository that could become available by 
2025 is the proposed repository at YM and it will only become available 
if the Commission issues a construction authorization and a subsequent 
authorization to receive and possess HLW. In 2005, the State of Nevada 
filed a petition for rulemaking with NRC (PRM-51-8) which raised the 
question whether continued use of the 2025 date, in effect, indicated 
prejudgment of the outcome of any licensing proceeding that might be 
held. The Commission rejected this notion in its denial of the 
petition:

    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

[[Page 59558]]

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. State of Nevada; Denial of a Petition for 
Rulemaking (70 FR 48329, 48333; August 17, 2005).

    In the absence of an unfavorable NRC decision and DOE's abandonment 
of the site, the Commission found no reason to reopen its Waste 
Confidence findings.
    However, the Commission has now considered the recommendations of 
the Combined License Review Task Force Report and, in its June 22, 
2007, Staff Requirements Memorandum (SRM) on that report, has approved 
rulemaking to resolve generic issues associated with combined license 
applications. SRM--COMDEK-07-0001/COMJSM-07-0001--Report of the 
Combined License Review Task Force (ML071760109). In a subsequent SRM 
of September 7, 2007, the Commission expressed the view that a near-
term update to the Waste Confidence findings was appropriate. SRM--
Periodic Briefing on New Reactor Issues (ML072530192). The staff, in 
its response to these SRMs, recognized that there would likely be long-
term inefficiencies in combined license application proceedings, due to 
the need to respond to potential questions and petitions directed to 
the existing Waste Confidence Decision, and committed to evaluate 
possible updates to the decision.\10\ See memorandum from Luis A. Reyes 
to the Commissioners, ``Rulemakings that Will Provide the Greatest 
Efficiencies to Complete the Combined License Application Reviews in a 
Timely Manner,'' December 17, 2007, at 3 (ML073390094). Undertaking a 
public rulemaking proceeding now to consider revisions to the Waste 
Confidence findings and rule--rather than waiting until some point 
closer to the 2025 date--will allow sufficient time to conduct a 
studied and orderly reassessment and, as appropriate, to revise and 
update the findings and rule. In particular, it will allow the 
Commission to consider alternative time-frames which would provide 
reasonable assurance for the availability of a repository.
---------------------------------------------------------------------------

    \10\ Challenges to 10 CFR 51.23 in individual COL proceedings 
would likely be addressed through application of 10 CFR 2.335, 
``Consideration of Commission rules and regulations in adjudicatory 
proceedings.'' This rule generally prohibits attacks on NRC rules 
during adjudicatory proceedings but does allow a party to an 
adjudicatory proceeding to petition that application of a specified 
rule be waived or an exception made for the particular proceeding. 
10 CFR 2.335(b). The sole ground for such a waiver or exception is 
that ``special circumstances with respect to the subject matter of 
the particular proceeding are such that the application of the rule 
or regulation * * * would not serve the purposes for which the rule 
or regulation was adopted.'' Id. Thus, a review of the Waste 
Confidence findings and rule now might be expected to obviate such 
challenges in individual COL proceedings.
---------------------------------------------------------------------------

    One possibility might be to make an assumption that the Commission 
would ultimately find the YM site unacceptable by a certain date and 
then set the expected availability of a different repository at a time 
around 25 years later in accordance with DOE's 1990 estimate of the 
time it would take to make a repository available at a different site. 
However, the Commission rejected this route in the denial of the Nevada 
petition:

    [T]he 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 (70 FR 48333; August 17, 2005).

    Another approach would be to revise the finding to include a target 
date or timeframe for which it now seems reasonable to assume that a 
repository would be available. A target date for when a disposal 
facility can reasonably be expected to be available would result from 
an examination of the technical and institutional issues that would 
need to be resolved before a repository could be available. The target 
date approach would be consistent with the HLW disposal programs in 
other countries, as explained further in this document. The target date 
could be placed in the finding itself, or described in the explanation 
for the finding. A target date is admittedly not very different from 
``the first quarter of the twenty-first century'' as stated in the 
current finding, but this approach would make it more clear that 
specification of a particular time for when a repository could be built 
does not imply that radioactive waste would pose unsafe conditions if a 
repository were not available at that time. The capability to safely 
store radioactive waste over long periods is a viable interim 
alternative not dependent on any one specific year for availability of 
a repository. The Commission has adopted this approach in updating its 
finding.
    Most countries possessing HLW and SNF eventually plan to confine 
these wastes using deep geologic disposal. Currently, there are 24 
other countries that consider disposal of spent or reprocessed nuclear 
fuel in deep geologic repositories. From the vantage point of near-term 
safety, there has been little urgency in these countries for 
implementing disposal facilities because of the perceived high degree 
of safety provided by interim storage, either at reactors or at 
independent storage facilities. Of these 24 countries,10 have 
established target dates for the availability of a repository. Most of 
the 14 countries which have not established target dates rely on 
centralized interim storage, which may include a protracted period of 
onsite storage before shipment to a centralized facility.\11\
---------------------------------------------------------------------------

    \11\ The three countries with target dates that plan direct 
disposal of SNF are: Czech Republic (2050), Finland (2020), and 
Sweden (2020). The seven countries with target dates that plan 
disposal of reprocessed SNF/HLW are: Belgium (2035), China (2050), 
France (2025), Germany (2025), Japan (2030s), Netherlands (2013), 
Switzerland (2042).
---------------------------------------------------------------------------

    The ``target date'' approach would need to assume a beginning date 
for a new repository program. NRC believes that it is reasonable to 
select 2025 as the starting point, the current outer date of the 
Commission's prediction of repository availability. It is reasonable to 
assume that it will be known by 2025 whether a repository is available 
at the YM site. If it is not available, it seems reasonable to assume 
that a new repository program would get underway around that time. The 
need for a new repository program would not necessarily be the result 
of an NRC denial of the license application; it could result from a 
change in national policy for HLW disposal, a court reversal of a 
Commission licensing action, or other factors. The assumption of a need 
for a new repository program would be based on an assumption that the 
proposed YM repository does not become available, and not on an 
assumption that NRC determines that facility to be technically 
unacceptable. In sum, the Commission would be saying that it will 
remove its expectation that a repository will be available by 2025 but, 
even in the event that the YM repository does not become available, it 
retains confidence that spent fuel can be safely stored with no 
significant environmental impact until a repository can reasonably be 
expected to be available and that the Commission has a target date for 
the availability of the repository in that circumstance.
    If it is assumed that a new repository program begins around the 
year 2025, then setting a target date for the

[[Page 59559]]

availability of a repository becomes a matter of examining the 
technical and institutional problems DOE would need to resolve to 
achieve the target date. The technical problems should be the same as 
the ones NRC examined in the earlier Waste Confidence reviews, namely, 
how long it would take DOE to locate a suitable site and how long it 
would take to develop a waste package and engineered barriers for that 
site. For the reasons explained in our evaluation of Finding 1, the 
Commission continues to have reasonable assurance that disposal in a 
geologic repository is technically feasible. That is the approach being 
taken in all the countries identified previously which have set target 
dates for the availability of a repository. It is also the approach of 
14 other countries which have HLW disposal programs, but which have not 
set target dates.\12\ In addition when Congress amended NWPA in 1987 to 
focus exclusively on the YM site, it did so for budgetary reasons and 
not because the sites DOE was considering at the time were discovered 
to be technically unacceptable. The research being done nationally and 
internationally strongly suggests that potentially acceptable sites 
exist and can be identified.
---------------------------------------------------------------------------

    \12\ These countries are: Brazil, Canada, Hungary, Lithuania, 
Romania, South Korea, Slovak Republic, Spain (direct disposal of 
SNF); Bulgaria, India, Italy, Russia, United Kingdom, Ukraine 
(disposal of reprocessed SNF/HLW).
---------------------------------------------------------------------------

    The amount of time DOE might need to develop an alternative 
repository site would depend upon the context of any enabling 
legislation, budgetary constraints, and the degree of similarity 
between a candidate site and other well-characterized sites with 
similar HLW disposal concepts. DOE began characterization of the YM 
site in 1982, made its suitability determination in 2002, and submitted 
a license application in 2008. However, the history of potential 
repository development at YM may be a poor indicator of the amount of 
time needed to develop a new repository. Many problems extraneous to 
site characterization activities adversely impacted DOE's repository 
program, such as changes in enabling legislation, public confidence 
issues, funding in Congressional appropriations, and significant delay 
in issuing environmental standards. In terms of the technical work 
alone, a lot would depend on whether Congress established a program 
involving characterization of many sites preliminary to the 
recommendation of a single site (similar to the 1982 NWPA) or a program 
focused on a single site (similar to the amended NWPA). The former 
would likely take longer but might have a better chance of success if 
problems developed with the single site. Much would also depend on 
whether the site(s) chosen for characterization is similar to sites in 
this or other countries for which much information is available or 
whether the site(s) would present novel challenges for which much 
fundamental knowledge would have to be developed. An alternative site 
with a disposal approach that is similar to that used in other 
international repository programs could make use of the extensive 
knowledge from those international programs to gain efficiencies in the 
alternative repository development program.
    In addition, there should be a certain amount of ``lessons 
learned'' from the YM repository program that could help to shorten the 
length of a new program. For example, performance assessment techniques 
have improved significantly over the past 20 years (e.g., the Goldsim 
software package of DOE's Total System Performance Assessment was not 
available 20 years ago and represents a significant improvement over 
the FORTRAN language of years past) such that performance assessment 
models are easier to develop and more reliable from what was available 
20 years ago. Similarly, operational and manufacturing aspects 
developed during the YM program (e.g., manufacturing of waste packages, 
excavation of drifts, waste handling), would be applicable to another 
program. Also, regulatory issues considered during the YM program 
(e.g., burn-up credit for nuclear fuel and seismic performance 
analysis) should provide information useful for setting new standards 
or revising current standards.\13\
---------------------------------------------------------------------------

    \13\ Both NRC's Part 63 and EPA's Part 197 are applicable only 
for a repository at YM. NRC and EPA have in place standards for a 
repository at a different site, but these standards would likely be 
revised in a new repository program.
---------------------------------------------------------------------------

    Whether waste package and engineered barrier information developed 
during the YM repository program would be transferable to a new program 
depends heavily on the degree of similarity between an alternative site 
and YM. The fundamental physical characteristics of the potential YM 
repository are significantly different from other potential repository 
sites that were considered in the U.S. repository program before 1987. 
If YM does not become available, DOE could select an alternative 
candidate site that was similar to YM in important physical 
characteristics (such as oxidizing conditions, drifts above the water 
table with low amounts of water infiltration, water chemistry buffered 
by volcanic tuff rocks). In this instance, much of the existing 
knowledge for engineered barrier performance at YM might be 
transferable to a different site. Nevertheless, much of DOE's current 
research on engineered barriers for YM could be inapplicable if an 
alternative site had significantly different characteristics than the 
YM site, such as an emplacement horizon in reducing conditions below 
the water table. In this instance, research from additional programs by 
DOE, industry, and other countries might provide important information 
on engineered barriers, provided DOE's alternative was analogous to 
sites and engineered ba