Waste Confidence Decision Update, 81037-81076 [2010-31637]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Rules and Regulations]
[Pages 81037-81076]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31637]


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

NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

[NRC-2008-0482]


Waste Confidence Decision Update

AGENCY: Nuclear Regulatory Commission.

ACTION: Update and final revision of Waste Confidence Decision.

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

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
updating its Waste Confidence Decision of 1984 and, in a parallel 
rulemaking

[[Page 81038]]

proceeding, revising its generic determinations in the NRC's 
regulations.

ADDRESSES: 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, Room 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 https://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.
    Federal Rulemaking Web site: Public comments and supporting 
materials related to this final rule can be found at https://www.regulations.gov by searching on Docket ID: NRC-2008-0482.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, e-mail: tison.campbell@nrc.gov; Lisa London, 
Office of the General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone: 301-415-3233, e-mail: 
lisa.london@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

    On September 18, 1990 (55 FR 38474), the NRC 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 update to the Decision 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 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. In 2008, the Commission decided to undertake a 
review of its Waste Confidence Decision and Rule as part of an effort 
to enhance the efficiency of combined license proceedings for 
applications for nuclear power plant (NPP) licensees anticipated in the 
near future by ensuring that the findings are up to date.
    The Commission has considered developments since 1990 and has 
reviewed its five prior findings and supporting environmental analysis. 
As a result of this review, the Commission is revising the second and 
fourth findings in the Waste Confidence Decision as follows:

    Finding 2: The Commission finds reasonable assurance that 
sufficient mined geologic repository capacity will be available to 
dispose of the commercial high-level radioactive waste and spent 
fuel generated in any reactor when necessary.
    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 reaffirms the three remaining findings. Each finding 
and the reasons for revising or reaffirming the finding are discussed 
below. In keeping with revised Findings 2 and 4, the Commission is 
concurrently publishing in this issue of the Federal Register 
conforming amendments to 10 CFR 51.23(a), which provides a generic 
determination of the environmental impacts of storage of spent fuel at, 
or away from, reactor sites after the expiration of reactor operating 
licenses, and expresses reasonable assurance that sufficient geologic 
disposal capacity will be available when necessary.
    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 NPPs ``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 61372, 61373; 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 (DC Cir.1979). That case questioned 
whether an offsite storage or disposal solution would be available for 
the spent nuclear fuel (SNF) produced at the Vermont Yankee and Prairie 
Island NPPs at the expiration of the licenses for those facilities in 
2007-2009 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 denying a petition for rulemaking filed by the Natural 
Resources Defense Council (NRDC), that it intended to periodically 
reassess 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 (AEA). Public Law 83-703, 68 Stat. 919 (1954), 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 the following five 
Waste Confidence Findings, which the Commission issued on August 31, 
1984:

    (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 (49 FR 34658).

    Based on these findings, the Commission promulgated 10 CFR 51.23(a) 
to provide a generic determination that for at least 30 years

[[Page 81039]]

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 and that the Commission had reasonable assurance 
that a permanent disposal facility would be available by 2007-2009.
    The Commission conducted a review of its findings in 1989-1990, 
which resulted in the revision of Findings 2 and 4 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:

    (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.
    (55 FR 38474; September 18, 1990)

    The Commission similarly amended the generic determination in 10 
CFR 51.23(a):

    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. (55 FR 
38472; September 18, 1990).

    This generic determination is applied in licensing proceedings 
conducted under 10 CFR parts 50, 52, 54, and 72. See 10 CFR 51.23(b) 
(2010).
    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 a 
reevaluation when the pending repository development and regulatory 
activities had run their course or if significant and pertinent 
unexpected events occurred that raise substantial doubt about the 
continuing validity of the Waste Confidence Findings (64 FR 68005; 
December 6, 1999). The Commission has not found that the criteria put 
forth in 1999 for reevaluating its findings have been met. But because 
the Commission is now preparing to conduct a significant number of 
proceedings on combined license (COL) applications for new reactors, 
and the issue of waste confidence has been raised in some of those 
proceedings and may be raised in others, it is prudent to take a fresh 
look at the NRC's Waste Confidence Findings now, before completing the 
agency's review of new reactor license applications.
    On February 14, 2002, the Secretary of Energy recommended the Yucca 
Mountain (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 Nuclear Waste Policy Act, as amended (NWPA). See 42 
U.S.C. 10134(a)(1); 10134(a)(2); 10135(b), 10136(b)(2) (2006). 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. 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 Public Law 107-200, 
116 Stat. 735 (2002) (codified at 42 U.S.C. 10135 note (Supp. IV 
2004)).
    On June 3, 2008, the Department of Energy (DOE) submitted the 
``Yucca Mountain Repository License Application,'' seeking NRC's 
authorization to begin construction of a permanent HLW repository at 
YM. U.S. Department of Energy, License Application for a High-Level 
Waste Geologic Repository at Yucca Mountain (2008), available at https://www.nrc.gov/waste/hlw-disposal/yucca-lic-app.html. On September 8, 
2008, the NRC staff found that the application contained sufficient 
information for the staff to begin its detailed technical review, and 
docketed the application (73 FR 53284; September 15, 2008). On October 
17, 2008, the Commission issued a ``Notice of Hearing and Opportunity 
to Petition for Leave to Intervene'' (73 FR 63029; October 22, 2008). 
Requests for hearing were received from 12 parties and 2 interested 
governmental entities; these requests included 318 contentions to the 
application.\2\ The Construction Authorization Boards granted 10 of 
these petitions to intervene and admitted all but 17 of the 318 
contentions (ADAMS Accession Number ML091310479).
---------------------------------------------------------------------------

    \2\ ADAMS Accession Numbers ML083540096, ML083540230, 
ML083550015, ML083570102, ML083570371, ML083570416, ML083570731, 
ML083570732, ML083570741, ML083570761, ML083570773, ML083570775, 
ML083570779, ML083570788, ML083570789, ML083590091, ML090050465, 
ML083540836.
---------------------------------------------------------------------------

    On January 29, 2010, President Obama directed the Secretary of 
Energy to create a ``Blue Ribbon Commission on America's Nuclear 
Future'' to evaluate options for the back-end of the nuclear fuel 
cycle. See Presidential Memorandum--Blue Ribbon Commission on America's 
Nuclear Future (January 29, 2009), available at https://www.whitehouse.gov/the-press-office/presidential-memorandum-blue-ribbon-commission-americas-nuclear-future.
    In the YM proceeding, DOE filed a ``Motion to Stay the 
Proceeding,'' on February 1, 2010, which stated that the President, in 
the proposed budget for fiscal year 2011, ``directed that the 
Department of Energy `discontinue its application to the U.S. Nuclear 
Regulatory Commission for a license to construct a high-level waste 
geologic repository at Yucca Mountain in 2010 * * *' '' (ADAMS 
Accession Number ML100321641 at 1). The Motion also stated that the 
proposed budget indicated that all DOE funding for YM would be 
eliminated in 2011. Id. Therefore, DOE stated its intent to withdraw 
the license application by March 3, 2010, and requested a stay of the 
proceeding to avoid unnecessary expenditure of resources by the Board 
and parties. See Id. at 2. Construction Authorization Board 4 granted a 
stay of the proceeding on February 16, 2010 (ADAMS Accession Number 
ML100470423).
    On February 19, 2010, Aiken County, South Carolina filed an action 
in the U.S. Court of Appeals for the District of Columbia Circuit, 
challenging DOE's decision to seek withdrawal of the license 
application. Similar lawsuits filed by three individuals living near 
Hanford, Washington (the Ferguson Petitioners), the State of South 
Carolina, and the State of Washington were consolidated into one 
proceeding now before the District of Columbia Circuit. See In re Aiken 
County, No. 10-1050 (and consolidated cases) (DC Cir.).

[[Page 81040]]

    On March 3, 2010, DOE filed with the NRC a Motion to withdraw its 
license application with prejudice (ADAMS Accession Number 
ML100621397). On June 29, 2010, Construction Authorization Board 4 
issued a Memorandum and Order (Granting Intervention to Petitioners and 
Denying Withdrawal Motion), LBP-10-11, ---- NRC ----, denying DOE's 
motion to withdraw as outside its authority under the NWPA (ADAMS 
Accession Number ML101800299). The Secretary of the Commission invited 
briefs from all the parties in the YM proceeding on whether to review 
and whether to uphold or reverse the Board's decision. The Commission 
has not yet acted on these questions.
    Although the proposed updates to the Waste Confidence Decision and 
Rule did not consider some of these recent developments, the Commission 
has assumed, for the purposes of these updates, that YM would not be 
built. Even so, the new YM developments are pertinent. The Commission 
believes that the updates to the Waste Confidence Decision and Rule 
reflect the uncertainty regarding the timing of the availability of a 
geologic repository for SNF and HLW. The Commission, as a separate 
action, has directed the staff to develop a plan for a longer-term 
rulemaking and Environmental Impact Statement (EIS) to assess the 
environmental impacts and safety of long-term SNF and HLW storage 
beyond 120 years (SRM-SECY-09-0090; ADAMS Accession Number 
ML102580229). This analysis will go well beyond the current analysis 
that supports at least 60 years of post-licensed life storage with 
eventual disposal in a deep geologic repository. The Commission 
believes that a more expansive analysis is appropriate because it will 
provide additional information (beyond the reasonable assurance the 
Commission is recognizing in the current rulemaking) on whether spent 
fuel can be safely stored for a longer time, if necessary. This 
analysis could reduce the frequency with which the Commission must, as 
a practical matter, consider waste storage capabilities. The staff's 
new review will require an analysis and, to some extent, a forecast of 
the safety and environmental impacts of storage for extended periods of 
time beyond that currently recognized in 10 CFR 51.23 and the Waste 
Confidence Decision. While storage of spent fuel for 60 years beyond 
licensed life has been shown through experience or analyses to be safe 
and not to have a significant environmental impact, the proposed 
technical analysis will go well beyond the time frame of existing 
requirements.
    Even though the Commission has not determined whether this 
particular analysis will result in a different conclusion concerning 
the environmental impacts of extended spent fuel storage, the 
Commission believes that this unprecedented long-term review should be 
accompanied by an EIS. Preparing an EIS will ensure that the agency 
considers these longer-term storage issues from an appropriate 
perspective. The Commission has therefore decided to exercise its 
discretionary authority under 10 CFR 51.20(a)(2) and is directing the 
staff to prepare a draft EIS to accompany the proposed rule developed 
as a result of this longer-term analysis. The updates to the Waste 
Confidence Decision in this document and the final rule published in 
this issue of the Federal Register rely on the best information 
currently available to the Commission and therefore are separate from 
this long-term initiative. The updates to the Waste Confidence Decision 
and Rule are not dependent upon the staff completing any action outside 
the scope of these revisions to the Waste Confidence Decision and Rule.
    Based upon the technical and environmental analysis contained in 
this document, and discussed at length below, the Commission has 
prepared this update of the Waste Confidence Decision and now makes the 
following revisions to Findings 2 and 4:

    (2) The Commission finds reasonable assurance that sufficient 
mined geologic repository capacity will be available to dispose of 
the commercial high-level radioactive waste and spent nuclear fuel 
generated by any reactor when necessary.
    (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 to the Waste Confidence Decision restates and 
supplements the bases for the earlier findings and addresses the public 
comments received on the proposed revisions to the findings.
    The Commission is also concurrently publishing in this issue of the 
Federal Register a final rule revising 10 CFR 51.23(a) to conform to 
the revisions of Findings 2 and 4.

Responses to Public Comments

    The NRC received comments from environmental and other public 
interest organizations; the nuclear industry; States, local 
governments, an Indian Tribe, and inter-governmental organizations; and 
individuals. Comments from the 158 letters, including a late 
supplemental letter from the Attorney General of New York, have been 
categorized and grouped under 8 issues for purposes of this discussion. 
The issues include comments made in two form letters received from 
1,990 and 941 commenters, respectively.

Issue 1: Compliance of the Waste Confidence Decision With the National 
Environmental Policy Act (NEPA)

    Comment 1: A large number of commenters stated that the NRC has not 
complied with NEPA in issuing its proposed revisions to the Waste 
Confidence Decision and to its generic determination in 10 CFR 51.23(a) 
because they believe that the revisions need to be supported by a 
Generic Environmental Impact Statement (GEIS). The National Resources 
Defense Council (NRDC) argues that these two agency actions ``are, in 
effect, generic licensing decisions that allow for the production of 
additional spent reactor fuel and other radioactive wastes associated 
with the uranium fuel cycle--essentially in perpetuity.'' Thus, these 
``generic licensing decisions,'' in NRDC's view, must ``be accompanied 
by a [GEIS] that fully assesses the environmental impacts of the entire 
uranium fuel cycle, including health and environmental impacts and 
costs, and that examines a reasonable array of alternatives, including 
the alternative of not producing any additional radioactive waste.''
    Texans for a Sound Energy Policy (TSEP) stated that ``the NRC has 
relied on the Waste Confidence Decision to license and re-license many 
nuclear power plants, and therefore it constitutes a major federal 
action significantly affecting the environment,'' requiring preparation 
of an EIS.
    The Attorney General of New York argued that the NRC should 
``require and perform a site-specific evaluation of environmental 
impacts of spent fuel storage at each reactor location, taking into 
account environmental factors including surrounding population density, 
water resources, seismicity, subsurface geology, and topography along 
with the design, construction, and operating experience of the spent 
fuel pool in question and the layout of the fuel assemblies in that 
pool.'' The Attorney General believes that these ``new factual 
conclusions also provide compelling evidence to support * * * 
[consideration] in relicensing

[[Page 81041]]

proceedings, such as the ongoing proceeding for the Indian Point power 
reactors, of any properly presented environmental and safety contention 
focused on the adequacy of mitigation measures taken or to be taken at 
that site to address the safety and environmental impacts flowing from 
the 20 additional years of spent fuel storage at the reactor site, the 
increased volume of spent fuel created during those 20 years, and the 
indefinite storage at that reactor site of all the waste generated by 
that reactor.'' Finally a form letter, used by many commenters, asserts 
``it is appropriate that any major Federal action on radioactive waste 
(such as changing the Waste Confidence Decision) be considered in a 
generic (programmatic) NEPA proceeding'' that includes all aspects of 
the nuclear fuel chain.
    NRC Response: In considering the NRC's compliance with NEPA in 
revising its Waste Confidence Decision and Rule, it is important to 
keep in mind the limited scope of these revisions. The NRC is amending 
its generic determination of no significant environmental impact from 
the temporary storage of spent fuel after cessation of reactor 
operation contained in 10 CFR 51.23(a) to conform it to the 
Commission's revised Findings 2 and 4 of the Waste Confidence Decision.
    In revised Finding 4, the Commission finds reasonable assurance 
that, if necessary, spent fuel generated in any reactor can be stored 
safely and without significant environmental impacts for at least 60 
years (rather than 30 years, as in the present finding) 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 
revised generic determination in 10 CFR 51.23(a) is dependent upon the 
environmental analysis supporting revised Finding 4.
    The revision also incorporates the Commission's supporting analysis 
for revised Finding 2, which looks at the time necessary to develop a 
repository (about 25-35 years) and concludes that reasonable assurance 
exists that sufficient mined geologic repository capacity will be 
available when necessary to dispose of the commercial HLW and SNF 
originating in such reactor and generated up to that time. As the 
Commission indicated in its Staff Requirements Memorandum (SRM) 
approving publication of this Decision and the final rule, the changes 
to Finding 2 do not mean that the Commission has endorsed indefinite 
storage of SNF and HLW.\3\ See SRM-SECY-09-0090; ADAMS Accession Number 
ML102580229.
---------------------------------------------------------------------------

    \3\ This reflects the Commission's confidence that a repository 
will be made available before the storage of the SNF and HLW becomes 
unsafe or would result in significant environmental impacts. Finding 
2 also reflects the Commission's belief that it cannot have 
confidence in a target date because it cannot predict when the 
societal and political obstacles to a successful repository program 
will be overcome. Once those obstacles are overcome, the Commission 
has confidence that a repository can be sited, licensed, and 
constructed within 25-35 years.
---------------------------------------------------------------------------

    The revised generic determination is not a generic licensing 
decision--it generically deals with one aspect of licensing decisions 
that have yet to be made. It does not authorize the operation of a NPP, 
the renewal of a license of a NPP, or the production of spent fuel by a 
NPP. NPPs and renewals of operating licenses are licensed in individual 
licensing proceedings. The NRC must prepare a site-specific EIS in 
connection with any type of application to construct and operate a NPP. 
See 10 CFR 51.20(b). For operating license renewals, the NRC may rely 
on NRC's GEIS for License Renewal of Nuclear Plants, NUREG-1437, May 
1996, for issues that are common to all plants and must also prepare a 
Supplemental EIS that evaluates site-specific issues not discussed in 
the GEIS or ``new and significant information'' regarding issues that 
are discussed in the GEIS.\4\ See 10 CFR part 51, subpart A, appendix 
B.
---------------------------------------------------------------------------

    \4\ The Commission issued a proposed rule updating the 1996 GEIS 
on July 31, 2009 (74 FR 38117) for a 75-day public comment period; 
the staff is currently preparing responses to the public comments.
---------------------------------------------------------------------------

    Both types of licensing proceedings are supported by both generic 
and specific EISs. The generic determination in Sec.  51.23(a) does 
play a role in the environmental analyses of the licensing and license 
renewal of individual NPPs; it excuses applicants for those licenses 
and the NRC from conducting an additional site-specific environmental 
analysis only within the scope of the generic determination in 10 CFR 
51.23(a). Thus, 10 CFR 51.23(b) provides:

    Accordingly, * * * within the scope of the generic determination 
in paragraph (a) of this section, no discussion of any environmental 
impact of spent fuel storage in reactor facility storage pools or 
[ISFSIs] for the period following the term of the reactor operating 
license or amendment, reactor combined license or amendment, or 
initial ISFSI license or amendment for which application is made, is 
required in any environmental report, [EIS], [EA], or other analysis 
prepared in connection with the issuance or amendment of an 
operating license for a [NPP] under parts 50 and 54 of this chapter, 
or issuance or amendment of a combined license for a [NPP] under 
parts 52 and 54 of this chapter, or the issuance of an initial 
license for storage of spent fuel at an ISFSI, or any amendment 
thereto (emphasis added).

In short, the environmental analysis, which is done as part of the 
licensing or license renewals of individual NPPs, as well as the 
initial licensing of an ISFSI, does consider the potential 
environmental impacts of storage of spent fuel during the term of the 
license. What is not considered in those proceedings--due to the 
generic determination in 10 CFR 51.23(a)--is the potential 
environmental impact of storage of spent fuel for a 60-year period 
after the end of licensed operations or the potential environmental 
impacts of ultimate disposal. Environmental analysis for this period is 
covered by the environmental analysis the NRC has done in this update 
to the Waste Confidence Decision, particularly under Findings 3, 4, and 
5. This analysis enables the Commission to generically resolve this 
issue because it demonstrates that spent fuel can be safely stored and 
managed under a 10 CFR part 50 or 10 CFR part 72 license after the 
cessation of reactor operations for at least a 60-year period. Further, 
if it becomes clear that a repository will not be available by the 
expiration of the 60-year post licensed life period, the Commission 
will revisit the Waste Confidence Decision and Rule early enough to 
ensure that it continues to have reasonable assurance of the safe 
storage without significant environmental impacts of the SNF and HLW.
    In addition, the NRC's Waste Confidence Decision and Rule do not 
pre-approve any particular waste storage or disposal site technology--
although the Decision does evaluate the technical feasibility of deep 
geologic disposal--nor do they require that a specific cask design be 
used for storage. Individual licensees and applicants, or in the case 
of a HLW repository, DOE, will have to apply for and meet all of the 
NRC's safety and environmental requirements before the NRC will issue a 
license for storage or disposal.
    The NRC must prepare an EIS when the proposed action is a major 
Federal action significantly affecting the quality of the human 
environment or when the proposed action involves a matter that the 
Commission, in the exercise of its discretion, has determined should be 
covered by an EIS. 10 CFR 51.20(a). The NRC's rulemaking action here is 
to incorporate a revised generic determination into 10 CFR 51.23(a), 
which expands from at least 30 years to at least 60 years after 
licensed life the period during which the Commission has confidence 
that spent fuel can be

[[Page 81042]]

safely stored without significant environmental impacts and to state 
its confidence that a permanent repository will be available when 
necessary. As the Commission explained in 1984 and 1990, this final 
rulemaking action formally incorporating the revised generic 
determination in the Commission's regulations does not have separate 
independent environmental impacts (49 FR 34693; August 31, 1984, 55 FR 
38473; September 18, 1990). The environmental analysis that the revised 
generic determination is based on is found in this update to the Waste 
Confidence Decision, which serves as the Environmental Assessment (EA) 
for the rule.
    The updates to the Waste Confidence Decision and Rule, as explained 
above, do not authorize any licensing or other Federal action. The rule 
does have the effect of removing from a reactor operating license 
proceeding, license renewal proceeding, or initial ISFSI licensing 
proceeding the issue of whether safe storage of SNF can be accomplished 
without any significant environmental impact for an additional 30 years 
beyond the 30 years provided by the current generic determination. The 
update to the Waste Confidence Decision explains and documents the 
Commission's continued reasonable assurance that this extended storage 
period will have no significant environmental impacts. Given this 
conclusion, a finding of no significant environmental impact (FONSI) 
may be made and preparation of an EIS is not required.
    Comment 2: A number of commenters asserted that the NRC, in making 
its FONSI, has not complied with its procedural requirements for a 
FONSI: 10 CFR 51.32, or with the requirements of the Council on 
Environmental Quality: 40 CFR 1508.13. In particular, some commenters 
claim that the NRC has not published an EA, as required by 10 CFR 
51.32, and has not identified all the documents that the FONSI is based 
on. TSEP asserts that the NRC's alleged failure to comply with its 
procedural requirements for a FONSI also results in a violation of the 
Administrative Procedure Act because it means the public has not had an 
opportunity to comment on the basis for the FONSI.
    NRC Response: As explained in response to Comment 1, the only 
Federal action involved in this rulemaking is the amendment of 10 CFR 
51.23(a). This amendment adopts the expansion, by 30 years, of the 
Commission's Finding 4 in its 1990 Waste Confidence Decision that spent 
fuel generated in any reactor can be stored safely and without 
significant environmental impacts after the licensed life for operation 
of the reactor; the amendment also captures the revisions to Finding 2 
in the Waste Confidence Decision that deep geologic disposal capacity 
will be available when necessary. This is the action described in the 
NRC's proposed FONSI (See 73 FR 59550; October 9, 2008).
    The formal incorporation of revised Findings 2 and 4 into 10 CFR 
51.23(a) has no separate independent environmental impact from the 
revisions of Findings 2 and 4. The update and revision of the Waste 
Confidence Decision is the EA supporting the action and the basis for 
the FONSI and, as evidenced by the breadth of comments received, the 
findings of the Waste Confidence Decision have been made available for 
public review and comment. The update was undertaken, as a matter of 
discretion, to ensure the currency of the Waste Confidence Findings, 
which have not been changed in nearly 20 years.
    The NRC's procedural requirements for an EA call for a brief 
discussion of the need for the proposed action, alternatives to that 
action, and the environmental impacts of the proposed action and 
alternatives as well as a list of agencies and persons consulted and 
identification of the sources used. See 10 CFR 51.30(a). The 
Commission's proposal explained that the need for an update of the 1990 
Waste Confidence Decision was prompted by a desire to make anticipated 
licensing proceedings for new reactors more efficient by resolving any 
concerns that the generic determination was out of date and could not 
be relied upon in these licensing proceedings (See 73 FR 59553, 59558; 
October 9, 2008). The Commission's proposed rule also explicitly raised 
the question, in the context of revising Finding 2, whether it should 
remove a target date from Finding 2 and make a general finding of 
reasonable assurance that SNF generated in any reactor can be stored 
safely and without significant environmental impacts until a disposal 
facility can reasonably be expected to be available (See 73 FR 59561-
59562; October 9, 2008).
    The Commission explained what the basis of this alternative finding 
would be:

    In other words, in response to the court's concerns that 
precipitated the original Waste Confidence proceeding, the 
Commission could now say that there is no need to be concerned about 
the possibility that spent fuel may need to be stored at onsite or 
offsite storage facilities at the expiration of the license 
(including a renewed license) until such time as a repository is 
available because we have reasonable assurance that spent fuel can 
be so stored for long periods of time, safely and without 
significant environmental impact. Such a finding would be made on 
the basis of the Commission's accumulated experience of the safety 
of long-term spent fuel storage with no significant environmental 
impact (see Finding 4) and its accumulated experience of the safe 
management of spent fuel storage during and after the expiration of 
the reactor operating license (see Finding 3). Id.

    The Commission explicitly sought public comment on whether any 
additional information would be needed to make this change. The update 
to the Waste Confidence Decision shows that there would be no 
difference between the environmental impacts of the proposed action of 
extending the time period for safe storage of SNF by 30 years and the 
no-action alternative of leaving it as it is. The Commission also 
stated in its proposed update and rule that the environmental impacts 
of the alternative of indefinite storage may be the same, but found no 
need to make this prediction due to its expectation that a repository 
will be available within 50-60 years of the end of any reactor's 
license for the disposal of its spent fuel.
    The Commission has, however, now reconsidered its position 
regarding the use of the 50-60 year target date: The Commission has 
confidence that spent fuel can be safely stored without significant 
environmental impact for long periods of time as described in its 
discussion of Findings 3, 4, and 5. But there are issues beyond the 
Commission's control, including the political and societal challenges 
of siting a HLW repository, that make it premature to predict a precise 
date or time frame when a repository will become available.\5\ The 
Commission has therefore decided not to adopt a specific time frame in 
Finding 2 or its final rule. Instead, the Commission is expressing its 
reasonable assurance that a repository will be available ``when 
necessary.''
---------------------------------------------------------------------------

    \5\ These political and societal issues are discussed in the 
analysis of Finding 2 in this document.
---------------------------------------------------------------------------

    The Commission believes that this standard accurately reflects its 
position, as discussed in the analysis supporting Finding 2, that a 
repository can be constructed within 25-35 years of a Federal decision 
(e.g., congressional action or executive order) to start a new 
repository program. The Commission continues to have confidence, as 
expressed in Findings 3 and 5, that safe and sufficient onsite or 
offsite storage capacity is and will be available until the waste is 
sent to a repository for disposal. In addition, revised Finding 4 
supports safe onsite or offsite storage without significant 
environmental

[[Page 81043]]

impacts for at least 60 years beyond the end of the licensed life for 
operation of any nuclear power reactor. Given that long period of time, 
the current ``Blue-Ribbon Commission'' studying options for handling 
SNF, the Commission's direction to the NRC staff to consider whether it 
is feasible to expand the 60-year period for safe storage, and a 
continued Federal obligation to site and build a repository under the 
Nuclear Waste Policy Act, the Commission has reasonable assurance that 
disposal capacity will become available when necessary and that there 
will be sufficient safe and environmentally sound storage for all of 
the spent nuclear fuel until disposal capacity becomes available.
    Further, the Commission has decided not to endorse the concept of 
indefinite storage that was discussed with the alternative Finding 2 in 
the proposed rule (73 FR 59561-59562; October 9, 2008). The Commission 
has determined that it is not necessary to endorse indefinite storage 
if there is no target date for a repository because the Commission has 
confidence that either a repository will be available before the 
expiration of the 60 years post-licensed life discussed in Finding 4 or 
that the Waste Confidence Decision and Rule will be updated and revised 
if the expiration of the 60-year period approaches without an ultimate 
disposal solution for the HLW and SNF.
    With respect to the claim that the NRC must make the documents on 
which its FONSI relies available to the public, the commenters are 
correct that the NRC must disclose all portions of the documents that 
informed its NEPA analysis and that are not exempt from public 
disclosure under the Freedom of Information Act (FOIA). The Commission 
acknowledged this fact when, in Pacific Gas and Electric Co. (Diablo 
Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-
08-01, 67 NRC 1 (2008), it directed the NRC staff to prepare a complete 
list of the documents on which it relied in preparing its EA.
    In the case of the update to the Waste Confidence Decision, the NRC 
has complied with this standard--all of the documents relied upon in 
preparing the update to the Waste Confidence Decision and Rule are 
referenced. Two of the referenced documents are not publicly available: 
reports concerning the safety and security of spent fuel pool storage 
issued by Sandia National Laboratories and the National Academy of 
Sciences (NAS), which are Classified, Safeguards Information, or 
Official Use Only--Security Related Information. Although these 
documents cannot be released to the public, redacted or publicly 
available summaries are available: A redacted version of the Sandia 
study can be found in ADAMS at (ADAMS Accession Number ML062290362) and 
the unclassified summary of the NAS report can be purchased or 
downloaded for free by accessing the NAS Web site at: https://www.nap.edu/catalog.php?record_id=11263. No other non-public documents 
are referenced in the Waste Confidence Decision.
    In sum, the NRC's FONSI identifies the proposed action and relies 
upon an EA that explains at considerable length the reasons why this 
action will not have a significant effect on the quality of the human 
environment and describes the documents relied upon and how these 
documents may be accessed by the public.
    Comment 3: A number of commenters asserted that the NRC has failed 
to comply with NEPA because the NRC has not prepared a GEIS to review 
and update Table S-3 of 10 CFR 51.51(b). Table S-3 lists environmental 
data to be used by applicants and the NRC staff as the basis for 
evaluating the environmental effects of the portions of the fuel cycle 
that occur before new fuel is delivered to the plant and after spent 
fuel is removed from the plant site for light-water reactors. Table S-3 
was incorporated into the NRC's regulations in 1979 and includes an 
assumption, based on NRC staff's analysis of disposal in a bedded-salt 
geologic repository, that after a repository is sealed there would be 
no further release of radioactive materials to the environment (the 
``zero release assumption''). The 1979 rulemaking also included an 
expectation that ``a suitable bedded-salt repository site or its 
equivalent will be found'' (44 FR 45362 and 45368; August 2, 1979).
    The commenters stated that the NRC's proposed revisions to the 
Waste Confidence Decision acknowledge that salt formations are now only 
being considered as hosts for reprocessed nuclear materials because 
heat-generating waste, like SNF, exacerbates a process by which salt 
can rapidly deform (See 73 FR 59555; October 9, 2008). For this and 
other reasons, the commenters believe that Table S-3 has been 
undermined and is out of date and needs to be reviewed in a GEIS. NRDC 
also believes that the Table S-3 Rule's ``finding of no significant 
health impacts fundamentally supports the Waste Confidence Decision 
because its estimate of zero radioactive releases from a repository is 
based on the Commission's then-current Waste Confidence finding, that 
`a suitable bedded-salt repository site or its equivalent will be 
found.' '' The commenters also note that the Commission, in 1990, 
indicated that it would find it necessary to review the Table S-3 Rule 
if it found, in a future review of the Waste Confidence Decision, that 
its confidence in the technical feasibility of disposal in a mined 
geologic repository had been lost (55 FR 38491; September 18, 1990). 
The commenters believe that the Commission lacks a basis for continued 
confidence in the technical feasibility of safe geologic disposal and 
that the relationship of the Table S-3 rule to the Waste Confidence 
Decision is such that a GEIS to review the Table S-3 Rule is a 
necessary prerequisite to a revision of the Waste Confidence Findings.
    NRC Response: The Waste Confidence Decision does not rely on 
findings made in the context of the Table S-3 Rule. Even in 1984, the 
Commission's confidence that a suitable geologic site for a repository 
would be found was not premised on the expectation that a bedded-salt 
site would be located, but rather on the fact that DOE's site 
exploration efforts were ``providing information on site 
characteristics at a sufficiently large number and variety of sites and 
geologic media to support the expectation that one or more technically 
acceptable sites will be identified.'' (49 FR 34668; August 31, 1984). 
Similarly, the issue of concern to the NRC in considering waste 
confidence has not been whether a zero-release assumption will be met, 
but rather when Environmental Protection Agency (EPA) would issue 
standards ensuring that any releases of radioactive materials to the 
environment would not be inimical to public health and safety (See 55 
FR 38500; September 18, 1990).
    In 1990, the Commission discussed the relationship of the Table S-3 
rulemaking with the Waste Confidence proceeding (See 55 FR 38490-38491; 
September 18, 1990). The Commission noted that the Table S-3 proceeding 
was the outgrowth of efforts to generically address the NEPA 
requirement for an evaluation of the environmental impacts of operation 
of a light water reactor (LWR), that Table S-3 assigned numerical 
values for environmental costs resulting from uranium fuel cycle 
activities to support one year of LWR operation, and that the Waste 
Confidence proceeding was not intended to make quantitative judgments 
about the environmental costs of waste disposal. The Commission stated 
that unless, ``in a future review of the Waste Confidence decision, 
[it] finds that it no longer has

[[Page 81044]]

confidence in the technical feasibility of disposal in a mined geologic 
repository, the Commission will not consider it necessary to review the 
S-3 rule when it reexamines its Waste Confidence Findings in the 
future'' (55 FR 38491; September 18, 1990). The Commission continues to 
have confidence in the technical feasibility of disposal in a mined 
geologic repository (see NRC Response to Comment 8 and the discussion 
of Finding 1 later in this document) so there is no need to review the 
S-3 rule to support its Waste Confidence Findings.\6\ This does not 
preclude the NRC from taking future regulatory action to amend Table S-
3 if doing so appears to be necessary or desirable. In 2008, the 
Commission stated that ``[t]he NRC will continue to evaluate, as part 
of its annual review of potential rulemaking activity, the need to 
amend Table S-3.'' New England Coalition on Nuclear Pollution; Denial 
of Petition for Rulemaking (73 FR 14946, 14949; March 20, 2008).
---------------------------------------------------------------------------

    \6\ As discussed below, Finding 1 deals with the general 
technical feasibility of a repository and is not dependent upon a 
specific site. Further, the Commission makes it clear in its 
discussion of Finding 2 that the Findings assume that YM will not be 
used as a geologic repository.
---------------------------------------------------------------------------

    Comment 4: The Attorney General of California believes that the 
Waste Confidence Decision violates core principles of NEPA and the 
NRC's regulations because it does not allow for supplementation of an 
EIS for an ISFSI even when there is significant change in the 
circumstances under which a project is carried out or when there is 
significant new information regarding the environmental impacts of the 
project. See 10 CFR 51.92(a). He asserts that ``NRC has not shown a 
clearly articulated justification, based on substantial evidence in the 
record, for the proposed extension of this presumption that no change 
in circumstance, and no new information, can ever trigger the NEPA duty 
to supplement the environmental analysis of the long-term onsite 
storage of nuclear waste.'' The Attorney General also believes that the 
proposed update to the Waste Confidence Decision allows NPPs ``to be 
substantially re-purposed and transformed into long-term storage 
facilities * * * without environmental review'' and that therefore 
supplementation of the initial EIS for the NPP may be warranted. 
Similarly, the Attorney General of New York, in a supplemental comment, 
argues that the Commission's proposed revision to Finding 2 (originally 
discussed in the Commissioners' September 2009 votes) endorses a policy 
of indefinite storage and that the Commission ``has not made a generic 
determination regarding environmental and safety issues presented by 
indefinite storage of spent fuel at the site of nuclear reactors 
following shutdown.''
    NRC Response: Under 10 CFR 51.23(b), the NRC does not need to 
prepare a site-specific EA or EIS during individual NPP licensing that 
discusses the environmental impacts of spent fuel storage for the 
period following the term of the reactor license or initial ISFSI 
license because of the generic determination the Commission has made in 
10 CFR 51.23(a) that spent fuel can be stored safely and without 
significant environmental impacts for at least 60 years beyond the 
licensed life of the reactor. The generic determination is based on the 
environmental analysis conducted in the Waste Confidence Decision. 
However, the commenter is not correct that this means that an EA or EIS 
for a reactor or an ISFSI may never need to be supplemented even if 
there is a significant change in circumstances or significant new 
information that demonstrates that the application of the generic 
determination would not serve the purposes for which it was adopted. 
Under 10 CFR 51.20(a)(2), the Commission, in its discretion, may 
determine that a proposed action involves a matter that should be 
covered by an EIS. Further, 10 CFR 2.335(b) provides that a party to an 
adjudicatory proceeding may petition for the waiver of the application 
of the rule or for an exception for that particular proceeding. The 
sole grounds for a petition for waiver or exception is that special 
circumstances with respect to the subject matter of the particular 
proceeding exist so that the application of the rule would not serve 
the purposes for which it was adopted.
    More fundamentally, as the Commission clarified in its SRM 
authorizing publication of this decision and final rule in the Federal 
Register, the changes to the Waste Confidence Decision and Rule are not 
intended to support indefinite storage. If the time frame for safe and 
environmentally sound storage included in Finding 4 approaches without 
the availability of sufficient repository capacity, the Commission will 
revisit the Waste Confidence Decision and Rule.
    Comment 5: Riverkeeper asserts that the NRC made its finding of no 
significant impact in its initial 1984 decision ``without performing an 
environmental review pursuant to NEPA, explicitly stating that an [EIS] 
was not necessary,'' and then has continued to make this finding 
without appropriate environmental review.
    NRC Response: Riverkeeper is correct that the NRC concluded in 1984 
that Finding 4--that SNF could be safely stored without significant 
environmental impacts for at least 30 years beyond the expiration of 
the reactor's operating license--did not require the support of an EIS 
(See 49 FR 34666; August 31, 1984). This does not mean that this 
finding was made without performing the required environmental review 
under NEPA. The Commission explained that the Waste Confidence Decision 
itself considered the environmental aspects of spent fuel storage and 
did comply with NEPA. Id. No EIS was conducted because the fourth 
finding concluded that the environmental impacts from extended storage 
of SNF are so insignificant as not to require consideration in an EIS. 
The NRC has explained in its response to Comment 1 why an EIS is 
unnecessary to support the expansion of its generic determination.

Issue 2: Compliance of the Waste Confidence Decision With the Atomic 
Energy Act (AEA)

    Comment 6: Several commenters asserted that the updates to the 
Waste Confidence Decision and Rule do not comply with the AEA. They 
stated that that the AEA precludes NRC from licensing any new NPP or 
renewing the license of any existing NPP if it would be ``inimical * * 
* to the health and safety of the public.'' 42 U.S.C. 2133(d) (2006). 
They note that the Commission continues to state that it would not 
continue to license reactors if it did not have reasonable confidence 
that the wastes can and will in due course be disposed of safely. These 
commenters assert that Finding 1 effectively constitutes a licensing 
determination that spent fuel disposal risks are not inimical to public 
health and safety, and that Findings 3, 4, and 5 effectively constitute 
a licensing determination that spent fuel storage risks are not 
inimical to public health and safety. Because the commenters believe 
that the NRC has presented no well-documented safety findings 
supporting its findings, they contend that the NRC's revisions of its 
findings are in violation of the AEA.
    NRC Response: As explained in the response to Comment 1, the NRC's 
update to the Waste Confidence Decision and Rule are not licensing 
decisions. They are not determinations made as part of the licensing 
proceedings for NPPs or ISFSIs or the renewal of those licenses. They 
do not authorize the storage of SNF in spent fuel pools or ISFSIs. The 
revised findings and generic determination are conclusions of the 
Commission's

[[Page 81045]]

environmental analyses, under NEPA, of the foreseeable environmental 
impacts stemming from the storage of SNF after the end of reactor 
operation.
    As long ago as 1978, the U.S. Court of Appeals for the Second 
Circuit considered the question ``whether NRC, prior to granting 
nuclear power reactor operating licenses, is required by the public 
health and safety requirement of the AEA to make a determination * * * 
that high-level radioactive wastes can be permanently disposed of 
safely.'' Natural Resources Defense Council v. NRC, 582 F. 2d 166, 170 
(1978) (emphasis in original). The court found that the NRC was not 
required to make a finding under the AEA that SNF could be disposed of 
safely at the time a reactor license was issued, but that it was 
appropriate for the Commission to make this finding in considering a 
license application for a geologic repository. Similarly, the U.S. 
Court of Appeals for the District of Columbia Circuit did not vacate 
amendments to NPP operating licenses permitting the reracking of spent 
fuel storage pools because it was concerned about the availability of 
storage or disposal facilities at the end of licensed operation. State 
of Minnesota v. NRC, 602 F. 2d 412 (DC Cir. 1979). Rather, that court 
was concerned that the Commission's confidence in these matters had not 
been subjected to public scrutiny, so it directed the Commission to 
conduct a rulemaking proceeding to assess its degree of confidence on 
these issues, leading to the original Waste Confidence proceeding.
    The Commission will make the safety finding with respect to SNF 
disposal envisioned by the commenters in the context of a licensing 
proceeding for a geologic repository. The Commission does make the 
safety findings with respect to storage of SNF envisioned by the 
commenters in the context of licensing proceedings for NPPs and ISFSIs 
for the terms of those licenses.

Issue 3: What is the meaning of ``reasonable assurance'' in the waste 
confidence Findings?

    Comment 7: One commenter expressed the view that the NRC should 
continue to take a position of suspending the licensing of reactors if 
it does not have confidence beyond a reasonable doubt that wastes can 
and will be disposed of safely. Another commenter criticized the NRC 
for ``fail[ing] to define the standard for reasonable assurance--what 
level of assurance that they found in making their determination--90%, 
51%, 5%.''
    NRC Response: The ``reasonable assurance'' standard is not 
equivalent to the ``beyond a reasonable doubt'' standard used in the 
criminal law. North Anna Environmental Coalition v. NRC, 533 F.2d 655, 
667 (DC Cir. 1976) (North Anna).\7\ It is more akin to a ``clear 
preponderance of the evidence'' standard, and what constitutes 
``reasonable assurance'' depends on the particular circumstances of the 
issue being examined. In a 2009 decision affirming the license renewal 
of the Oyster Creek NPP, the Commission explained: ``Reasonable 
assurance is not quantified as equivalent to a 95% (or any other 
percent) confidence level, but is based on sound technical judgment of 
the particulars of a case and on compliance with our regulations * * * 
.'' In re Amergen Energy Co. (License Renewal for Oyster Creek Nuclear 
Generating Station), CLI-09-07, 69 NRC 235 (April 1, 2009).
---------------------------------------------------------------------------

    \7\ In North Anna, the court considered whether the Commission's 
``reasonable assurance'' standard required an applicant for a NPP 
license to prove beyond a reasonable doubt that an earthquake fault 
under the proposed site was not capable. The court found that 
neither the AEA nor the pertinent regulations required the 
Commission to find, under its reasonable assurance standard, that 
the site was totally risk-free. See also Power Reactor Development 
Co. v. International Union of Electrical, Radio and Machine Workers, 
367 U.S. 396, 414 (1961), where the Supreme Court rejected a claim 
that the Commission's finding of reasonable assurance needed to be 
based on ``compelling reasons'' when a construction permit for a 
reactor sited near a large population center was being considered.
---------------------------------------------------------------------------

    Thus, the Commission's 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 of that reactor is based on a clear 
preponderance of the technical and scientific evidence described in the 
discussion of Finding 4. The Commission's reasonable assurance in 
Finding 2, that sufficient repository capacity will be available when 
necessary, is somewhat different; it does not include a specific date 
for when a repository will be available and is supported by an analysis 
that considers how long it may take to successfully complete the 
process to select a site, license, and build a repository. This 
analysis is not purely scientific, and thus the evidence has more 
qualitative content than evidence considered for strictly scientific or 
technical issues.

Issue 4: Whether the Commission Has an Adequate Basis for Reaffirming 
Finding 1

    Comment 8: TSEP believes that the Commission lacks a sound basis 
for reaffirming Finding 1: that there is reasonable assurance that safe 
disposal of HLW and SNF in a mined geologic repository is technically 
feasible. In support of its view, TSEP provides the comments of the 
Institute for Energy and Environmental Research (IEER) by Dr. Arjun 
Makhijani. IEER stated that ``the Waste Confidence Decision presents a 
safety finding, under the Atomic Energy Act, that the NRC has 
reasonable assurance that disposal of spent fuel will not pose an undue 
risk to public health and safety. It does so via the finding that 
disposal is technically feasible and can be done in conformity with the 
assumption of zero releases in Table S-3 * * *.'' IEER believes that 
the NRC has failed to address available information, which shows that 
the NRC currently does not have an adequate technical basis for a 
reasonable level of confidence that spent fuel can be isolated in a 
geologic repository.
    IEER defines ``safe disposal'' as involving ``(i) the safety of 
building the repository, putting the waste in it, and backfilling and 
sealing it, and (ii) the performance relative to health and 
environmental protection standards for a long period after the 
repository is sealed * * *. [I]t is essential to show a reasonable 
basis for confidence that the public and the environment far into the 
future will be adequately protected from the effects of disposal at a 
specific site and a specific engineered system built there.'' Further, 
IEER believes that ``reasonable assurance'' requires ``a statistically 
valid argument based on real-world data that would show (i) that all 
the elements for a repository exist and (ii) that they would work 
together as designed, as estimated by validated models. The evidence 
must be sufficient to provide a reasonable basis to conclude that the 
durability of the isolation arrangements would be sufficient to meet 
health and environmental standards for long periods of time * * * with 
a high probability.'' IEER believes that the NRC does not have the 
requisite reasonable assurance because the NRC ``has not taken into 
account a mountain of data and analysis'' derived from the YM 
repository program and from the French program at the Bure site, which 
illustrate the problems these programs have encountered and thus show, 
in IEER's view, ``that it is far from assured that safe disposal of 
spent fuel in a geologic repository is technically feasible.'' IEER 
also cites to the historical difficulty the EPA has had in formulating 
radiation protection standards and notes that ``[w]ithout a final 
standard that is clear of court challenges, performance assessment

[[Page 81046]]

must necessarily rest on guesses about what it might be; this is not a 
basis on which `reasonable assurance' of the technical feasibility of 
`safe disposal' can be given, for the simple reason that there is no 
accepted definition of safe in relation to Yucca Mountain as yet.''
    NRC Response: IEER confuses the safety finding that the NRC must 
make under the AEA when considering an application for a license to 
construct and operate a repository at an actual site with the Waste 
Confidence Findings made under NEPA, including the finding that there 
is reasonable assurance that safe di