Dan Kane; Denial of Petition for Rulemaking, 10805-10810 [2011-4347]
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Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules
amended, 3 CFR, 1995 Comp., p. 333; E.O.
12968, 3 CFR, 1995 Comp., p.391.
43. Section 54.27 is revised to read as
follows:
§ 52.27
Hearings.
A notice of an opportunity for a
hearing will be published in the Federal
Register in accordance with 10 CFR
2.105 and 2.309. In the absence of a
request for a hearing filed within 60
days by a person whose interest may be
affected, the Commission may issue a
renewed operating license or renewed
combined license without a hearing
upon a 30-day notice and publication in
the Federal Register of its intent to do
so.
Dated at Rockville, Maryland, this 22nd
day of February 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011–4345 Filed 2–25–11; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 51
[Docket No. PRM–51–13; NRC–2010–0088]
Dan Kane; Denial of Petition for
Rulemaking
Nuclear Regulatory
Commission.
ACTION: Petition for rulemaking; Denial.
AGENCY:
The Nuclear Regulatory
Commission (NRC) is denying a petition
for rulemaking (PRM) submitted by Dan
Kane. Mr. Kane requested that the NRC
rescind the Waste Confidence Rule,
suspend all ongoing reactor licensing
proceedings, and phase out operations
at all operating nuclear power plants.
The NRC is denying the petition
because, contrary to the assertions made
in the PRM, the Commission’s Waste
Confidence Decision and Rule consider
the political uncertainty discussed in
the petition and do not depend on the
availability of a repository at Yucca
Mountain, Nevada.
ADDRESSES: You can access publicly
available documents related to this
petition for rulemaking 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
20852.
• NRC’s Agencywide Documents
Access and Management System
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SUMMARY:
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(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 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 petition for rulemaking
can be found at https://
www.regulations.gov by searching on
Docket ID: NRC–2010–0088. Address
questions about NRC dockets to Carol
Gallagher 301–492–3668; e-mail
Carol.Gallagher@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Tison Campbell, Office of the General
Counsel, U.S. Nuclear Regulatory
Commission, Washington, DC 20555,
telephone: 301–415–8579, e-mail:
tison.campbell@nrc.gov; or Lisa London,
Office of the General Counsel, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555, telephone: 301–
415–3233, e-mail: lisa.london@nrc.gov.
SUPPLEMENTARY INFORMATION:
The Petition
Title 10 of the Code of Federal
Regulations (10 CFR), Section 2.802,
Petition for rulemaking, provides an
opportunity for any interested person to
petition the Commission to issue,
amend, or rescind any regulation. On
February 2, 2010, Dan Kane submitted
a PRM requesting that the NRC rescind
10 CFR 51.23, Temporary storage of
spent fuel after cessation of reactor
operation—generic determination of no
significant environmental impact, also
known as the Waste Confidence Rule.
(ADAMS Accession No. ML100570095
(Petition)).
Mr. Kane believes that rescinding 10
CFR 51.23 would require the NRC to
cease licensing new nuclear power
plants and to suspend the licenses of
existing power plants. He argues that
the Waste Confidence Rule is no longer
valid because the Department of Energy
has filed a motion to withdraw its
application for a spent nuclear fuel
(SNF) and high-level waste (HLW)
disposal facility at Yucca Mountain and
because he believes that the
Commission must ‘‘adequately
anticipate and address future political
considerations with regard to waste
disposal’’ as part of its Waste Confidence
Decision and Rule. (Petition at 3). The
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NRC reviewed Mr. Kane’s petition and
determined that the petition met the
minimum sufficiency requirements of
10 CFR 2.802. Accordingly, the NRC
docketed the request as PRM–51–13 on
February 25, 2010; the NRC notified the
public of the opportunity to submit
comments on the petition in the Federal
Register notice announcing the
docketing of the petition. (75 FR 16360;
April 1, 2010). The NRC received 10
comments on the PRM: five comments
supported granting the petition, one
asked the NRC to provide additional
information on the basis for the Waste
Confidence Decision and Rule, and four
argued that the petition should be
denied.
Background
In his February 2, 2010 PRM, Dan
Kane requested that the NRC ‘‘[c]ease
licensing of new nuclear power plants
and begin an orderly phase out of
existing operating nuclear power plants
until the Commission can be assured
not only of the technical and economic
certainties of a waste disposition
decision, but also of the political
certainties associated with that
disposition.’’ (Petition at 3). Mr. Kane
believes that the uncertainty regarding
the licensing of a nuclear waste
repository at Yucca Mountain
undermines the basis for the NRC’s
regulations at 10 CFR 51.23, which he
believes provide the basis for the
continued operation and licensing of
nuclear power plants. (Id.) He contends
that the then proposed revisions to
Finding 2 (of the five findings in the
Waste Confidence Decision), which
provides part of the basis for 10 CFR
51.23, ‘‘was grounded in the belief that
the Yucca Mountain repository would
become available within the first quarter
of the twenty-first century or perhaps a
few years later.’’ (Id. at 2). Mr. Kane also
believes that the NRC has not complied
with its obligations under the National
Environmental Policy Act (NEPA)
because ‘‘[t]he spirit of NEPA
compliance cannot be satisfied by
assuming some unknown future
solution to an existing challenge.’’ (Id.)
As discussed above, Mr. Kane believes
that this existing challenge is political.
(Id. at 2–3). Further, Mr. Kane argues
that the deficiency in the Waste
Confidence Decision and Rule results
from the inability of the Commission to
‘‘adequately anticipate and address
future political considerations with
regard to waste disposal.’’ (Id. at 3).
NRC Evaluation
The NRC does not agree with Mr.
Kane that 10 CFR 51.23 should be
rescinded.
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Whether the Withdrawal of the Yucca
Mountain Application Necessitates the
Revocation of the Waste Confidence
Decision and Rule
The basis for Mr. Kane’s petition to
revoke the Waste Confidence Rule is the
Department of Energy’s motion to
withdraw the Yucca Mountain license
application and the Obama
Administration’s decision not to seek
further funding for the program.
(Petition at 2). Despite Mr. Kane’s
assertions to the contrary, the
Commission has stated on numerous
occasions that the Waste Confidence
Decision and Rule are not based on an
assumption that Yucca Mountain will
become available. In fact, the Waste
Confidence Decision and Rule assume
that Yucca Mountain will not be built.
(See, e.g., 55 FR 38494; September 18,
1990, 75 FR 81040; December 23, 2010).
Therefore, Mr. Kane’s argument that the
Waste Confidence Decision and Rule
should be revoked because they relied
upon the eventual availability of Yucca
Mountain must be rejected because it
does not accurately consider the basis
for the Decision and Rule.
Mr. Kane is correct that the
Commission cannot speculate when the
political and societal obstacles to the
successful completion of a repository
program will be overcome. The
Commission has acknowledged these
difficulties in the recently published
update to its Waste Confidence Decision
and Rule. (See, 75 FR 81048 and 81063).
However, it does not follow from the
Commission’s acknowledgement of the
societal and political obstacles to a
successful repository program that the
Commission cannot have reasonable
assurance that disposal capacity will be
available when needed as expressed in
the Waste Confidence Decision and
Rule. Although the Commission cannot
specifically predict when a repository
will become available, the Commission
can have reasonable assurance that a
repository will become available when
necessary and that the SNF and HLW in
on-site and off-site storage facilities can
be stored safely and without significant
environmental impacts for at least 60
years after the licensed life of operation
for any reactor. (Id. at 81048, 81063, and
81069–81074). As discussed in the
analysis of Finding 2 of the Waste
Confidence Decision, the Commission
continues to have reasonable assurance
that a repository can be licensed,
opened, and in operation within 25–35
years of a Federal decision to begin a
repository program. (Id. at 81063).
Further, the political obstacles
associated with the licensing of Yucca
Mountain or any other repository are
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not fatal to the Commission’s Waste
Confidence Decision and Rule. As stated
above, the Commission assumed that
Yucca Mountain would not be licensed
in both the proposed and final updates
to the Waste Confidence Decision and
Rule. (See, e.g., 75 FR 81040). As also
discussed above, the Commission’s
analysis in the Waste Confidence
Decision—which serves as the
Environmental Assessment (the NEPA
analysis) for the Waste Confidence
Rule—does consider and acknowledge
the political difficulties associated with
the successful completion of a project to
license and operate a nuclear waste
repository. These difficulties informed
the Commission’s decision to remove a
target date from Finding 2 and 10 CFR
51.23, and to adopt the ‘‘when
necessary’’ standard in the current
Finding 2 and 10 CFR 51.23. The
Commission also acknowledged that if a
repository is not available as the end of
the 60-years of post-licensed life storage
nears, it will be necessary to revisit the
Waste Confidence Decision and Rule (if
a subsequent update has not occurred
by that time). (75 FR 81035). Further, in
its September 15, 2010 Staff
Requirements Memorandum approving
the final update to the Waste
Confidence Decision and Rule, the
Commission directed the NRC staff to
begin a separate longer-term rulemaking
(to be supported by an Environmental
Impact Statement) to assess the longterm storage of SNF and HLW. (ADAMS
Accession No. ML102580229).
Contrary to Mr. Kane’s assertions that
the NRC has neglected its
responsibilities under NEPA ‘‘by
assuming some unknown future
solution to an existing challenge,’’ the
NRC has not assumed some unknown
future solution. The Waste Confidence
Decision and Rule demonstrate that a
solution—deep geologic disposal—does
exist and is technically feasible. (See,
e.g., 75 FR 81058–81060). The unknown
that prevents the Commission from
providing a target date is the political
and societal uncertainty surrounding
the nuclear waste disposal program; the
Commission addressed this uncertainty
in its update to the Waste Confidence
Decision. (75 FR 81062–81067). Further,
the U.S. government as a whole has
demonstrated its continued
commitment to finding a long-term
solution to the nuclear waste disposal
problem. The NRC continues to have
confidence that SNF and HLW can be
stored safely until a disposal solution
becomes available. The United States is
actively examining potential solutions.
The Blue Ribbon Commission on
America’s Nuclear Future is assessing
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disposal options and is expected to
publish a report with recommendations
at the beginning of 2012. Just because
the Obama Administration has
expressed a desire to abandon one
specific option for SNF and HLW
disposal does not mean that progress is
not being made toward an ultimate
disposal solution.
Whether Rescinding 10 CFR 51.23
Would Require the Cessation of Reactor
Licensing
Even if the Commission were to
rescind 10 CFR 51.23, it does not follow
that the operation and licensing of
nuclear power plants would have to
cease. The Waste Confidence Rule
satisfies the Commission’s NEPA
responsibilities for the period of time
after the expiration of a license. Without
the generic determination in the Waste
Confidence Rule, the NRC could satisfy
its NEPA obligations by including the
post-licensed-life storage of SNF in the
NEPA analysis for each nuclear power
plant or ISFSI licensing action.
Further, the Commission’s Waste
Confidence Decision and Rule are not
dependent on the NRC’s ability to
predict when the political and societal
obstacles that stand in the way of
opening a disposal site will be resolved.
Rather, as discussed by the Court of
Appeals for the DC Circuit in Minnesota
v. NRC, 602 F.2d 412 (1979), the
question that has to be considered by
the NRC is ‘‘whether there is reasonable
assurance that an off-site storage
solution will be available by the years
2007–09 1, * * * and if not, whether
there is reasonable assurance that the
fuel can be stored safely at the sites
beyond those dates.’’ (Id. at 418
(emphasis added)). The Court further
‘‘agree[d] with the Commission that it
may proceed in these matters by generic
determinations.’’ (Id. at 419). The first
Waste Confidence Decision and Rule
were issued in 1984, and updated in
1990 and 2010. The Commission
continues to use the Decision and Rule
to satisfy both the direction of the Court
(to determine whether there is
reasonable assurance that fuel can be
stored safely beyond the expiration of
the license) and to provide a generic
determination of its obligations under
NEPA to assess the environmental
impacts of the storage of SNF and HLW
waste after the expiration of a license.
Based upon its analysis of Mr. Kane’s
petition, the NRC has concluded that
the petition should be denied. The
petition does not provide sufficient
justification to support the assertion that
1 The licenses of the two plants at issue in this
case would have expired in 2007 and 2009.
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10 CFR 51.23 should be rescinded
because the Commission’s analysis does
not consider political issues and
because the Yucca Mountain repository
program is no longer being funded. As
discussed above, the NRC has shown
that the Commission’s analysis
supporting the Waste Confidence
Update and Rule does not depend on
the availability of Yucca Mountain and
does consider the political issues
associated with a repository program.
The NRC has also demonstrated that
both the 1990 and 2010 updates to the
Waste Confidence Decision and Rule
assumed that Yucca Mountain would
not be built. The cessation of the Yucca
Mountain program, whether for
political, technical, or other reasons, is
irrelevant to the continued viability of
the Waste Confidence Decision and Rule
because, for the purposes of the Waste
Confidence Decision and Rule, the NRC
has consistently assumed that Yucca
Mountain would not be built. The NRC
is therefore denying Mr. Kane’s petition
for rulemaking.
Public Comments on the Petition
The NRC received 10 comments on
this petition for rulemaking.
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Comment 1
Neal Hunemuller submitted a
comment asking that the NRC address
the laws that provided the basis for the
Waste Confidence Decisions (49 FR
34658; August 31, 1984, 55 FR 38474;
September 18, 1990, and 75 FR 81037).
NRC Response
The Commission developed the Waste
Confidence Decision and Rule as a
result of several cases that set out the
NRC’s obligations with respect to safe
storage and disposal of SNF and HLW
under the Atomic Energy Act of 1954,
Public Law 83–703, 68 Stat. 26 (codified
as amended in scattered sections of 42
U.S.C.) (AEA) and NEPA. The AEA
requires the NRC to establish standards
to govern the civilian use of nuclear
material and facilities, as the
Commission may deem necessary to
protect public health and safety and the
common defense and security; and
NEPA directs Federal agencies to
evaluate the environmental impacts of
major Federal actions that significantly
affect the quality of the human
environment. In 1978, the Court of
Appeals for the Second Circuit held that
the NRC was not required to withhold
action on pending or future applications
for nuclear power reactor operating
licenses until it makes a determination
that high-level radioactive wastes can be
permanently disposed of safely. (NRDC
v. NRC, 582 F.2d 166, 175 (2d Cir.
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1978)). In 1979, the Court of Appeals for
the DC Circuit considered whether the
NRC ‘‘must take into account the safety
and environmental implications of
maintaining the reactor site as a nuclear
waste disposal site after the expiration
of the license term’’ if no off-site interim
storage facility or ultimate disposal
solution is available. (State of
Minnesota v. NRC, 602 F.2d 412, 416
(1979)). The Court remanded the issue
to the NRC and instructed the agency to
consider ‘‘whether there is reasonable
assurance that an off-site storage
solution will be available by the years
2007–09 * * * and if not, whether there
is reasonable assurance that the fuel can
be stored safely at the sites beyond those
dates.’’ (Id. at 418). Further, the Court
held that this finding could be made by
a generic determination (Id. at 419).
This generic determination was
promulgated as the NRC’s 1984 Waste
Confidence Decision and Rule (49 FR
34658 and 34688).
Comment 2
Jason Hout submitted a comment
opposing the petition. He argued that
because operating nuclear power plants
can safely store SNF, their operation
should not be directly tied to the
availability of SNF disposal.
NRC Response
The NRC agrees that the petition
should be denied. As noted above,
recent developments regarding the
development and licensing of the
repository at Yucca Mountain, including
the Department of Energy’s motion to
withdraw its application, do not mean
that the recent Waste Confidence
Decision and Rule are invalid; the Waste
Confidence Decision and Rule assume
that the repository at Yucca Mountain
will not be built.
Comment 3
Paul M. Krishna submitted a comment
supporting the petition, which stated
that the Secretary of Energy’s direction
to the Blue Ribbon Commission (BRC) to
not consider mined geologic disposal
flies in the face of the Waste Confidence
Rule. He argued that the DOE’s motion
to withdraw the Yucca Mountain
licensing application potentially results
in nuclear power plant licenses
violating the Waste Confidence Rule
and that this violation should affect the
granting of any construction permits,
operating licenses, or combined
construction permit and operating
licenses for any future nuclear power
plants. Mr. Krishna stated that the NRC
needs to either grant DOE’s motion to
withdraw the Yucca Mountain license
application and stop licensing all future
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nuclear power plants, or deny the
motion and continue the licensing
process for Yucca Mountain. Finally,
Mr. Krishna questioned whether the
NRC was planning to ‘‘come up with
another waste confidence rule which
states that on-site storage of SNF and
HLW is safe and secure for another 100
years, by which time we might have a
repository,’’ which he claims ‘‘will not
work.’’
NRC Response
The NRC believes that Mr. Krishna
has misinterpreted the Secretary of
Energy’s direction to the BRC; the BRC
was not directed to refrain from
considering geologic disposal. Instead,
the BRC charter specifically directs it to,
‘‘provide advice, evaluate alternatives,
and make recommendations for a new
plan to address these issues, including
* * * Options for permanent disposal
of used fuel and/or high-level nuclear
waste, including deep geologic disposal
* * *’’ (emphasis added) See, https://
brc.gov/pdfFiles/BRC_Charter.pdf.
The NRC also disagrees with Mr.
Krishna’s assertion that the withdrawal
of the Yucca Mountain license
application would result in current or
future power plant licenses violating the
Waste Confidence Rule. As discussed
above, the Waste Confidence Rule is a
generic determination of the
environmental impacts of post-licensed
life storage, which does not depend on
a disposal site at Yucca Mountain.
Further, both the Waste Confidence
Decision and Rule assume that Yucca
Mountain will not be built. For the
purposes of the update to the Waste
Confidence Decision and Rule, the
Commission has consistently assumed,
in both the proposed and final Rule and
Decision, that Yucca Mountain would
not be built (73 FR 59556; October 9,
2008 and 75 FR 81040). The Waste
Confidence Decision and Rule are based
on technological developments,
increased scientific understanding, and
a review of international experience and
progress with repositories, not the
ultimate availability of the Yucca
Mountain repository (75 FR 81032 and
81037).
As noted previously, the Waste
Confidence Decision and Rule are
separate from the Yucca Mountain
licensing decision—they assume that a
repository is not constructed at the
Yucca Mountain site. It does not follow
from the NRC’s pending decision on the
DOE’s motion to withdraw the Yucca
Mountain application that the licensing
of new nuclear power plants would
have to cease if the DOE’s motion is
granted. Whatever decision the
Commission eventually makes in the
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Yucca Mountain proceeding will have
no direct effect on the Waste Confidence
Decision and Rule.
Mr. Krishna also questioned whether
the NRC plans to conduct another Waste
Confidence rulemaking to look at
storage for more than 60 years after the
end of licensed life. In the Staff
Requirements Memorandum for the
recent update to the Waste Confidence
Decision and Rule, the Commission
instructed the staff to prepare a plan for
a longer-term rulemaking that would
update the Waste Confidence Decision
and Rule to address the impacts of
storing SNF for more than the 120 years
considered in the current Waste
Confidence Rule. (ADAMS Accession
No. ML102580229). Mr. Krishna’s
assertion that a longer-term Waste
Confidence Rule would not work is
speculative. NRC rulemakings are
conducted in a manner to ensure that
the agency’s actions comply with
applicable laws (e.g., the AEA, the
Administrative Procedure Act, and
NEPA). NRC rulemaking procedures
will provide an opportunity for public
comment when Mr. Krishna can
comment on the actual substance of a
proposed rule once it is developed.
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Comment 4
James Blaylock commented that
continued nuclear power generation is
based on a solution to nuclear waste
disposal, and that without a defined
program the Federal government has
now invalidated that commitment. Mr.
Blaylock stated that long-term storage is
not an acceptable approach, and that he
supports the petition.
NRC Response
As noted in Finding 4 of the
Commission’s Waste Confidence
Decision, the Commission finds
reasonable assurance that SNF
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 SNF storage basin and
either onsite or offsite independent
spent fuel storage installations.
The Commission does not agree that
the Federal government has invalidated
its commitment to provide for SNF
disposal. The Federal government
continues to evaluate options for the
ultimate disposal of SNF and HLW; the
Waste Confidence Decision does not
consider the indefinite storage of SNF;
disposal is still the ultimate goal (75 FR
81041); and the Nuclear Waste Policy
Act is still the law. The Act continues
to mandate disposal in a repository, the
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collection of funds for the Nuclear
Waste Fund, and that the Federal
Government ‘‘has the responsibility to
provide for the permanent disposal of’’
HLW and SNF. (42 U.S.C. 10131 (2006)).
Concurrent with its recent motion to
withdraw the Yucca Mountain
application, the Secretary of Energy
created the Blue Ribbon Commission on
America’s Nuclear Future to evaluate,
assess, and advise on possible
alternatives for storage, management,
and ultimate disposal of SNF and HLW
(part of this evaluation will explore the
need for additional or amended
legislation). (https://brc.gov/pdfFiles/
BRC_Charter.pdf). These measures
demonstrate the Federal government’s
continued commitment to addressing
the nuclear waste disposal problem
even in the absence of the development
of a repository at Yucca Mountain.
Comment 5
David Hathcock submitted a
comment, which stated in full: ‘‘I agree
with this Proposed Rule change. I am a
concerned individual.’’
NRC Response
Although Mr. Hathcock expressed
support for the petition, the NRC
believes that its decision to deny the
petition is correct. As stated above:
(1) The Department of Energy’s
decision to withdraw its application for
a repository at Yucca Mountain does not
mean that the Waste Confidence
Decision and Rule should be revoked.
The Waste Confidence Decision and
Rule assume that Yucca Mountain will
not be built.
(2) Revocation of 10 CFR 51.23 would
not result in the end of reactor licensing
or relicensing. Without the Waste
Confidence Decision and Rule, the
NEPA evaluation of post-licensed life
storage of SNF would be included in
each individual licensing action.
Comment 6
Winston Hamilton Jr., P.E. submitted
a comment opposing the petition. Mr.
Hamilton argued that cutting the
funding to the Yucca Mountain project
is not directly related to the nuclear
industry. He also stated that he was
‘‘surprised’’ to see such a notice
published in the Federal Register by the
NRC.
NRC Response
The NRC agrees that the petition
should be denied. As noted above, the
Waste Confidence Decision and Rule
assume that a repository is not built at
Yucca Mountain.
The NRC also agrees that cutting the
funding for the Yucca Mountain project
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does not immediately affect operating
reactor performance. As noted in
Finding 3 of the Waste Confidence
Decision, 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. (75 FR 81067).
With respect to publication of the
PRM, the NRC published the PRM
because, in accordance with 10 CFR
2.802(e), the NRC found that the
petition satisfied the requirements of
§ 2.802(c).
Comment 7
Noah Miska submitted a comment
supporting the petition. Mr. Miska
expressed support for the ultimate goal
of the petition—the cessation of new
reactor licensing and the phasing out of
existing plants—because he believes
that granting the petition is ‘‘necessary
to make up for the loss of the proposed
Yucca Mountain nuclear waste storage
facility.’’ Further, Mr. Miska argued that
granting the petition would result in the
end of the production of new SNF and
HLW, which he believes represents ‘‘too
great a risk to the public’s well being to
justify their existence.’’ Mr. Miska also
noted that the reduction in nuclear
power capacity could be offset by
‘‘investments in wind and/or solar
infrastructure, which could potentially
create many thousands of new jobs.’’
NRC Response
As noted in the response to Mr.
Kane’s petition, the revocation of the
Waste Confidence Rule would not result
in the end of nuclear reactor licensing
or relicensing. Rather, the NEPA
evaluation of post-licensed-life storage
would shift from the generic
determination in the Waste Confidence
Rule to individual licensing
proceedings.
Mr. Miska is correct that reaching the
ultimate goal of the petition—the
cessation of new reactor licensing and
the phasing out of existing plants—
would result in the end of the
production of civilian SNF. But as
discussed generically in the Waste
Confidence Decision and specifically in
each licensing decision, the NRC has
evaluated the risks of licensing these
facilities and has determined that the
facilities can be licensed in accordance
with its regulations. To the extent that
Mr. Miska believes that no risk from
nuclear power is acceptable, Congress
has spoken otherwise: The NRC has
been directed by Congress in the AEA
to establish regulations that allow for
the licensing of nuclear power plants
and provide reasonable assurance of the
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Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules
protection of the public health and
safety and common defense and
security.
Finally, the NRC acknowledges that a
reduction in nuclear power capacity
could be offset by increased use of wind
or solar power (although the amount to
which the base-load power provided by
nuclear power could be offset by solar
and wind power is still uncertain).
These matters, however, are matters of
national energy policy and are not
within the NRC’s jurisdiction to
consider. The NRC does not promote the
use of nuclear power or any other means
of producing power. Rather, NRC is
charged with making sure that as long
as national energy policy includes
nuclear power, nuclear power plants are
operated safely and securely and in
compliance with regulatory
requirements.
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Comment 8
The Nuclear Energy Institute (NEI)
submitted comments opposing the
petition on several grounds. NEI first
argued that any NRC consideration of
the impacts of recent developments in
the Yucca Mountain project should be
considered within the then ongoing
Waste Confidence proceeding. Second,
NEI argued that as rulemakings consider
issues generically, it is inappropriate to
consider Mr. Kane’s request for
cessation of new plant licensing and the
phase-out of currently operating plants.
NRC Response
The NRC agrees that the petition
should be denied. As noted previously,
the Waste Confidence Decision and Rule
do not depend upon the availability of
the repository at Yucca Mountain.
Although the NRC agrees with NEI that
separate consideration of an ongoing
rulemaking on individual dockets is
inappropriate, Entergy Nuclear
Operations (Indian Point, Units 2 and
3), CLI–10–19, 72 NRC __ (July 8, 2010)
(slip op. at 2–3) (‘‘Under longstanding
NRC policy, licensing boards should not
accept in individual license proceedings
contentions which are (or are about to
become) the subject of general
rulemaking by the Commission’’
(citation omitted)), Mr. Kane has not
requested that his petition be
considered in individual dockets, but
has instead requested generic relief.
Thus, the NRC does not agree with
NEI’s suggestion that the petition should
be denied because it seeks resolution of
a generic issue on individual dockets.
Comment 9
The DOE submitted comments
opposing the petition. The Department
argued that the issues raised in the
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17:28 Feb 25, 2011
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petition fall squarely within the
Commission’s recently concluded Waste
Confidence rulemaking, and that the
Waste Confidence rulemaking is not
dependent upon the availability of
Yucca Mountain for waste disposal. The
DOE also noted that dry storage
technology provides DOE with
sufficient time to meet its obligations for
a permanent waste disposal under the
Nuclear Waste Policy Act.
NRC Response
The NRC agrees that the petition
should be denied. As noted previously,
the Waste Confidence Decision and Rule
do not depend upon the availability of
the repository at Yucca Mountain.
Further, both the Waste Confidence
Decision and Rule assume that Yucca
Mountain will not be built. In its recent
Waste Confidence Decision and Rule,
the Commission affirmed its position on
the temporary storage of SNF pending
the construction of a repository.
Whether DOE has met its obligations
under the Nuclear Waste Policy Act is
outside the scope of the Commission’s
Waste Confidence Decision and Rule.
Comment 10
J. Russell Dyer submitted a comment
supporting the petition. He raised two
concerns: intergenerational equity and
the effect of social and political stability
on the long-term storage and eventual
disposal of SNF and HLW. Mr. Dyer
argued that without a ‘‘considered
national policy to replace the Nuclear
Waste Policy Act’’ the United States
should cease generating the hazardous
burden of SNF and HLW. Mr. Dyer
urged the NRC to suspend existing
reactor licenses, curtail license
extension actions, and refrain from
granting new construction or operating
licenses.
NRC Response
Mr. Dyer is correct that
intergenerational equity was considered
in the Nuclear Waste Policy Act and the
Commission’s Waste Confidence
Decision. (42 U.S.C. 10131 (2006) and
75 FR 81048). But intergenerational
equity does not dictate that a disposal
facility must be available when a
nuclear power plant is licensed; as
noted in the Waste Confidence Decision:
‘‘The Commission’s approach in
Findings 2 and 4 acknowledges the need
for permanent disposal, and for the
generations that benefit from nuclear
energy to bear the responsibility for
providing an ultimate disposal for the
resulting waste.’’ (75 FR 81048). Further,
this concern was evaluated by the Court
of Appeals for the Second Circuit in
NRDC v. NRC. In that case, the Court
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
10809
held that the AEA did not require the
NRC to make a finding that safe
permanent disposal was available when
a license is issued. (NRDC v. NRC, 582
F.2d 166, 175 (2d Cir. 1978)). Consistent
with that decision, in the Waste
Confidence Decision and Rule, the NRC
found reasonable assurance of safe
storage of SNF for at least 60 years
beyond the licensed life for operation of
any reactor and that repository capacity
will be available when necessary. (75 FR
81067).
The Federal government continues to
evaluate options for the ultimate
disposal of SNF and HLW. Although the
Waste Confidence Decision does not
consider the indefinite storage of SNF,
disposal in a geologic repository is still
the ultimate goal (75 FR 81041). The
Nuclear Waste Policy Act is still the
law: The Act continues to mandate
disposal in a repository, the collection
of funds for the Nuclear Waste Fund,
and that the Federal Government ‘‘has
the responsibility to provide for the
permanent disposal of’’ HLW and SNF.
42 U.S.C. 1013 (2006). Concurrent with
its recent motion to withdraw the Yucca
Mountain application, the Department
of Energy created the Blue Ribbon
Commission on America’s Nuclear
Future to evaluate, assess, and advise on
possible alternatives for storage,
management, and ultimate disposal of
SNF and HLW (part of this evaluation
will explore the need for additional or
amended legislation). (https://brc.gov/
pdfFiles/BRC_Charter.pdf). These
measures demonstrate the Federal
government’s continued commitment to
addressing the nuclear waste disposal
problem in this generation.
Mr. Dyer’s comment links political
and social stability with the ability to
determine and implement a final
disposal solution. As explained in the
Waste Confidence Decision and Rule,
the Commission has confidence that the
political and institutional hurdles to
determining a path forward can be
overcome. (75 FR 81049). This
conclusion is supported by a review of
international progress on licensing a
deep geologic repository. (See 75 FR at
81065–81066). In addition to benefiting
from international experience, any new
repository program would benefit from
the lessons learned through the
preparation and review of the Yucca
Mountain license application. Although
the Commission recognizes the need for
broad public support before a successful
repository program can be achieved (75
FR 81066), the ongoing efforts of the
NRC and other Federal entities provide
reasonable assurance that this
generation will deal with the ultimate
disposal of SNF and HLW.
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Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / Proposed Rules
Determination of Petition
For reasons discussed above, the NRC
denies PRM–51–13.
Dated at Rockville, Maryland, this 16th day
of February 2011.
For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2011–4347 Filed 2–25–11; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 61
[NRC–2011–0043]
Public Workshop to Discuss Low-Level
Radioactive Waste Management
Nuclear Regulatory
Commission.
ACTION: Public Workshop and Request
for Comment.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC), in coordination
with the U.S. Department of Energy
(DOE), plans to conduct a workshop to
discuss possible approaches to revising
the regulatory framework for the
management of commercial low-level
radioactive waste (LLW). The purpose of
this workshop is to gather information
from a broad spectrum of stakeholders
concerning the NRC’s proposed options
for a comprehensive revision to NRC’s
and DOE’s waste regulations and to
discuss possible options.
DATES: The workshop will be on March
4, 2011, in Phoenix, Arizona. To
participate online, see Section II of the
SUPPLEMENTARY INFORMATION section of
this notice. Comments on the issues and
questions presented in Section III of the
SUPPLEMENTARY INFORMATION section of
this notice are due March 30, 2011.
ADDRESSES: The public workshop will
be held on March 4, 2011, from 8:30
a.m. to 5:30 p.m. at the Hyatt Regency
Phoenix Hotel, 122 North Second Street,
Phoenix, AZ 85004. The NRC will
accept public comments at the public
workshop. You may also submit
comments by any one of the following
methods. Please include Docket ID
NRC–2011–0043 in the subject line of
your comments. Comments submitted in
writing or in electronic form will be
posted on the NRC Web site and on the
Federal rulemaking Web site, https://
www.regulations.gov. 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
srobinson on DSKHWCL6B1PROD with PROPOSALS
SUMMARY:
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17:28 Feb 25, 2011
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you do not want to be publicly
disclosed.
The NRC requests that any party
soliciting or aggregating comments
received from other persons for
submission to the NRC inform those
persons that the NRC will not edit their
comments to remove any identifying or
contact information, and therefore, they
should not include any information in
their comments that they do not want
publicly disclosed.
Federal rulemaking Web site: Go to
https://www.regulations.gov and search
for documents filed under Docket ID
NRC–2011–0043. Address questions
about NRC dockets to Ms. Carol
Gallagher, telephone: 301–492–3668,
e-mail: Carol.Gallagher@nrc.gov.
Mail comments to: Ms. Cindy Bladey,
Chief, Rules, Announcements and
Directives Branch (RADB), Division of
Administrative Services, Office of
Administration, Mail Stop: TWB–05–
B01M, U.S. Nuclear Regulatory
Commission, Washington, DC. 20555–
0001, or by fax to RADB at 301–492–
3446.
You can access publicly available
documents related to this notice 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
20852–2738.
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 notice can be found at
https://www.regulations.gov by searching
on Docket ID: NRC–2011–0043.
FOR FURTHER INFORMATION CONTACT:
Michael P. Lee, Ph.D., Office of Federal
and State Materials and Environmental
Management Programs, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001; telephone: 301–415–
6887; e-mail: Mike.Lee@nrc.gov; Donald
B. Lowman, Office of Federal and State
Materials and Environmental
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
Management Programs, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001; telephone: 301–415–
5452; e-mail: Donald.Lowman@nrc.gov;
or Antoinette Walker-Smith, Office of
Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555–0001; telephone:
301–415–6390; e-mail:
Antoinette.Walker-Smith@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission’s licensing
requirements for the disposal of LLW in
near-surface [approximately the
uppermost 30 meters (100 feet)]
facilities reside in part 61. These
regulations were published in the
Federal Register on December 27, 1982
(47 FR 57446). The rule applies to any
near-surface LLW disposal technology,
including shallow-land burial,
engineered land disposal methods such
as below-ground vaults, earth-mounded
concrete bunkers, and augered holes.
The regulations emphasize an integrated
systems approach to the disposal of
commercial LLW, including site
selection, disposal facility design and
operation, minimum waste form
requirements, and disposal facility
closure. To lessen the burden on society
over the long periods of time
contemplated for the control of the
radioactive material, and thus lessen
reliance on institutional controls, part
61 emphasizes passive rather than
active systems to limit and retard
releases to the environment.
Development of the part 61 regulation
in the early 1980s was based on several
assumptions as to the types of wastes
likely to go into a commercial LLW
disposal facility. To better understand
what the likely inventory of wastes
available for disposal might be, the NRC
conducted a survey of existing LLW
generators. The survey, documented in
Chapter 3 of NUREG–0782—the Draft
part 61 Environmental Impact Statement
(DEIS)—revealed that there were about
36 distinct commercial waste streams
consisting of about 24 radionuclides of
potential regulatory interest. The
specific waste streams in question were
representative of the types of
commercial LLW being generated at the
time. Waste streams associated with
DOE’s nuclear defense complex were
not considered as part of the survey,
since disposal of those wastes, at that
time, was to be conducted at the DOEoperated sites. Over the last several
years there have been a number of
developments that have called into
question some of the key assumptions
E:\FR\FM\28FEP1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10805-10810]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4347]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 51
[Docket No. PRM-51-13; NRC-2010-0088]
Dan Kane; Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; Denial.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking (PRM) submitted by Dan Kane. Mr. Kane requested that the
NRC rescind the Waste Confidence Rule, suspend all ongoing reactor
licensing proceedings, and phase out operations at all operating
nuclear power plants. The NRC is denying the petition because, contrary
to the assertions made in the PRM, the Commission's Waste Confidence
Decision and Rule consider the political uncertainty discussed in the
petition and do not depend on the availability of a repository at Yucca
Mountain, Nevada.
ADDRESSES: You can access publicly available documents related to this
petition for rulemaking 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 20852.
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
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 petition for rulemaking can be
found at https://www.regulations.gov by searching on Docket ID: NRC-
2010-0088. Address questions about NRC dockets to Carol Gallagher 301-
492-3668; e-mail Carol.Gallagher@nrc.gov.
FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone: 301-415-8579, e-mail: tison.campbell@nrc.gov; or Lisa
London, Office of the General Counsel, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, telephone: 301-415-3233, e-mail:
lisa.london@nrc.gov.
SUPPLEMENTARY INFORMATION:
The Petition
Title 10 of the Code of Federal Regulations (10 CFR), Section
2.802, Petition for rulemaking, provides an opportunity for any
interested person to petition the Commission to issue, amend, or
rescind any regulation. On February 2, 2010, Dan Kane submitted a PRM
requesting that the NRC rescind 10 CFR 51.23, Temporary storage of
spent fuel after cessation of reactor operation--generic determination
of no significant environmental impact, also known as the Waste
Confidence Rule. (ADAMS Accession No. ML100570095 (Petition)).
Mr. Kane believes that rescinding 10 CFR 51.23 would require the
NRC to cease licensing new nuclear power plants and to suspend the
licenses of existing power plants. He argues that the Waste Confidence
Rule is no longer valid because the Department of Energy has filed a
motion to withdraw its application for a spent nuclear fuel (SNF) and
high-level waste (HLW) disposal facility at Yucca Mountain and because
he believes that the Commission must ``adequately anticipate and
address future political considerations with regard to waste disposal''
as part of its Waste Confidence Decision and Rule. (Petition at 3). The
NRC reviewed Mr. Kane's petition and determined that the petition met
the minimum sufficiency requirements of 10 CFR 2.802. Accordingly, the
NRC docketed the request as PRM-51-13 on February 25, 2010; the NRC
notified the public of the opportunity to submit comments on the
petition in the Federal Register notice announcing the docketing of the
petition. (75 FR 16360; April 1, 2010). The NRC received 10 comments on
the PRM: five comments supported granting the petition, one asked the
NRC to provide additional information on the basis for the Waste
Confidence Decision and Rule, and four argued that the petition should
be denied.
Background
In his February 2, 2010 PRM, Dan Kane requested that the NRC
``[c]ease licensing of new nuclear power plants and begin an orderly
phase out of existing operating nuclear power plants until the
Commission can be assured not only of the technical and economic
certainties of a waste disposition decision, but also of the political
certainties associated with that disposition.'' (Petition at 3). Mr.
Kane believes that the uncertainty regarding the licensing of a nuclear
waste repository at Yucca Mountain undermines the basis for the NRC's
regulations at 10 CFR 51.23, which he believes provide the basis for
the continued operation and licensing of nuclear power plants. (Id.) He
contends that the then proposed revisions to Finding 2 (of the five
findings in the Waste Confidence Decision), which provides part of the
basis for 10 CFR 51.23, ``was grounded in the belief that the Yucca
Mountain repository would become available within the first quarter of
the twenty-first century or perhaps a few years later.'' (Id. at 2).
Mr. Kane also believes that the NRC has not complied with its
obligations under the National Environmental Policy Act (NEPA) because
``[t]he spirit of NEPA compliance cannot be satisfied by assuming some
unknown future solution to an existing challenge.'' (Id.) As discussed
above, Mr. Kane believes that this existing challenge is political.
(Id. at 2-3). Further, Mr. Kane argues that the deficiency in the Waste
Confidence Decision and Rule results from the inability of the
Commission to ``adequately anticipate and address future political
considerations with regard to waste disposal.'' (Id. at 3).
NRC Evaluation
The NRC does not agree with Mr. Kane that 10 CFR 51.23 should be
rescinded.
[[Page 10806]]
Whether the Withdrawal of the Yucca Mountain Application Necessitates
the Revocation of the Waste Confidence Decision and Rule
The basis for Mr. Kane's petition to revoke the Waste Confidence
Rule is the Department of Energy's motion to withdraw the Yucca
Mountain license application and the Obama Administration's decision
not to seek further funding for the program. (Petition at 2). Despite
Mr. Kane's assertions to the contrary, the Commission has stated on
numerous occasions that the Waste Confidence Decision and Rule are not
based on an assumption that Yucca Mountain will become available. In
fact, the Waste Confidence Decision and Rule assume that Yucca Mountain
will not be built. (See, e.g., 55 FR 38494; September 18, 1990, 75 FR
81040; December 23, 2010). Therefore, Mr. Kane's argument that the
Waste Confidence Decision and Rule should be revoked because they
relied upon the eventual availability of Yucca Mountain must be
rejected because it does not accurately consider the basis for the
Decision and Rule.
Mr. Kane is correct that the Commission cannot speculate when the
political and societal obstacles to the successful completion of a
repository program will be overcome. The Commission has acknowledged
these difficulties in the recently published update to its Waste
Confidence Decision and Rule. (See, 75 FR 81048 and 81063). However, it
does not follow from the Commission's acknowledgement of the societal
and political obstacles to a successful repository program that the
Commission cannot have reasonable assurance that disposal capacity will
be available when needed as expressed in the Waste Confidence Decision
and Rule. Although the Commission cannot specifically predict when a
repository will become available, the Commission can have reasonable
assurance that a repository will become available when necessary and
that the SNF and HLW in on-site and off-site storage facilities can be
stored safely and without significant environmental impacts for at
least 60 years after the licensed life of operation for any reactor.
(Id. at 81048, 81063, and 81069-81074). As discussed in the analysis of
Finding 2 of the Waste Confidence Decision, the Commission continues to
have reasonable assurance that a repository can be licensed, opened,
and in operation within 25-35 years of a Federal decision to begin a
repository program. (Id. at 81063).
Further, the political obstacles associated with the licensing of
Yucca Mountain or any other repository are not fatal to the
Commission's Waste Confidence Decision and Rule. As stated above, the
Commission assumed that Yucca Mountain would not be licensed in both
the proposed and final updates to the Waste Confidence Decision and
Rule. (See, e.g., 75 FR 81040). As also discussed above, the
Commission's analysis in the Waste Confidence Decision--which serves as
the Environmental Assessment (the NEPA analysis) for the Waste
Confidence Rule--does consider and acknowledge the political
difficulties associated with the successful completion of a project to
license and operate a nuclear waste repository. These difficulties
informed the Commission's decision to remove a target date from Finding
2 and 10 CFR 51.23, and to adopt the ``when necessary'' standard in the
current Finding 2 and 10 CFR 51.23. The Commission also acknowledged
that if a repository is not available as the end of the 60-years of
post-licensed life storage nears, it will be necessary to revisit the
Waste Confidence Decision and Rule (if a subsequent update has not
occurred by that time). (75 FR 81035). Further, in its September 15,
2010 Staff Requirements Memorandum approving the final update to the
Waste Confidence Decision and Rule, the Commission directed the NRC
staff to begin a separate longer-term rulemaking (to be supported by an
Environmental Impact Statement) to assess the long-term storage of SNF
and HLW. (ADAMS Accession No. ML102580229).
Contrary to Mr. Kane's assertions that the NRC has neglected its
responsibilities under NEPA ``by assuming some unknown future solution
to an existing challenge,'' the NRC has not assumed some unknown future
solution. The Waste Confidence Decision and Rule demonstrate that a
solution--deep geologic disposal--does exist and is technically
feasible. (See, e.g., 75 FR 81058-81060). The unknown that prevents the
Commission from providing a target date is the political and societal
uncertainty surrounding the nuclear waste disposal program; the
Commission addressed this uncertainty in its update to the Waste
Confidence Decision. (75 FR 81062-81067). Further, the U.S. government
as a whole has demonstrated its continued commitment to finding a long-
term solution to the nuclear waste disposal problem. The NRC continues
to have confidence that SNF and HLW can be stored safely until a
disposal solution becomes available. The United States is actively
examining potential solutions. The Blue Ribbon Commission on America's
Nuclear Future is assessing disposal options and is expected to publish
a report with recommendations at the beginning of 2012. Just because
the Obama Administration has expressed a desire to abandon one specific
option for SNF and HLW disposal does not mean that progress is not
being made toward an ultimate disposal solution.
Whether Rescinding 10 CFR 51.23 Would Require the Cessation of Reactor
Licensing
Even if the Commission were to rescind 10 CFR 51.23, it does not
follow that the operation and licensing of nuclear power plants would
have to cease. The Waste Confidence Rule satisfies the Commission's
NEPA responsibilities for the period of time after the expiration of a
license. Without the generic determination in the Waste Confidence
Rule, the NRC could satisfy its NEPA obligations by including the post-
licensed-life storage of SNF in the NEPA analysis for each nuclear
power plant or ISFSI licensing action.
Further, the Commission's Waste Confidence Decision and Rule are
not dependent on the NRC's ability to predict when the political and
societal obstacles that stand in the way of opening a disposal site
will be resolved. Rather, as discussed by the Court of Appeals for the
DC Circuit in Minnesota v. NRC, 602 F.2d 412 (1979), the question that
has to be considered by the NRC is ``whether there is reasonable
assurance that an off-site storage solution will be available by the
years 2007-09 \1\, * * * and if not, whether there is reasonable
assurance that the fuel can be stored safely at the sites beyond those
dates.'' (Id. at 418 (emphasis added)). The Court further ``agree[d]
with the Commission that it may proceed in these matters by generic
determinations.'' (Id. at 419). The first Waste Confidence Decision and
Rule were issued in 1984, and updated in 1990 and 2010. The Commission
continues to use the Decision and Rule to satisfy both the direction of
the Court (to determine whether there is reasonable assurance that fuel
can be stored safely beyond the expiration of the license) and to
provide a generic determination of its obligations under NEPA to assess
the environmental impacts of the storage of SNF and HLW waste after the
expiration of a license.
---------------------------------------------------------------------------
\1\ The licenses of the two plants at issue in this case would
have expired in 2007 and 2009.
---------------------------------------------------------------------------
Based upon its analysis of Mr. Kane's petition, the NRC has
concluded that the petition should be denied. The petition does not
provide sufficient justification to support the assertion that
[[Page 10807]]
10 CFR 51.23 should be rescinded because the Commission's analysis does
not consider political issues and because the Yucca Mountain repository
program is no longer being funded. As discussed above, the NRC has
shown that the Commission's analysis supporting the Waste Confidence
Update and Rule does not depend on the availability of Yucca Mountain
and does consider the political issues associated with a repository
program. The NRC has also demonstrated that both the 1990 and 2010
updates to the Waste Confidence Decision and Rule assumed that Yucca
Mountain would not be built. The cessation of the Yucca Mountain
program, whether for political, technical, or other reasons, is
irrelevant to the continued viability of the Waste Confidence Decision
and Rule because, for the purposes of the Waste Confidence Decision and
Rule, the NRC has consistently assumed that Yucca Mountain would not be
built. The NRC is therefore denying Mr. Kane's petition for rulemaking.
Public Comments on the Petition
The NRC received 10 comments on this petition for rulemaking.
Comment 1
Neal Hunemuller submitted a comment asking that the NRC address the
laws that provided the basis for the Waste Confidence Decisions (49 FR
34658; August 31, 1984, 55 FR 38474; September 18, 1990, and 75 FR
81037).
NRC Response
The Commission developed the Waste Confidence Decision and Rule as
a result of several cases that set out the NRC's obligations with
respect to safe storage and disposal of SNF and HLW under the Atomic
Energy Act of 1954, Public Law 83-703, 68 Stat. 26 (codified as amended
in scattered sections of 42 U.S.C.) (AEA) and NEPA. The AEA requires
the NRC to establish standards to govern the civilian use of nuclear
material and facilities, as the Commission may deem necessary to
protect public health and safety and the common defense and security;
and NEPA directs Federal agencies to evaluate the environmental impacts
of major Federal actions that significantly affect the quality of the
human environment. In 1978, the Court of Appeals for the Second Circuit
held that the NRC was not required to withhold action on pending or
future applications for nuclear power reactor operating licenses until
it makes a determination that high-level radioactive wastes can be
permanently disposed of safely. (NRDC v. NRC, 582 F.2d 166, 175 (2d
Cir. 1978)). In 1979, the Court of Appeals for the DC Circuit
considered whether the NRC ``must take into account the safety and
environmental implications of maintaining the reactor site as a nuclear
waste disposal site after the expiration of the license term'' if no
off-site interim storage facility or ultimate disposal solution is
available. (State of Minnesota v. NRC, 602 F.2d 412, 416 (1979)). The
Court remanded the issue to the NRC and instructed the agency to
consider ``whether there is reasonable assurance that an off-site
storage solution will be available by the years 2007-09 * * * and if
not, whether there is reasonable assurance that the fuel can be stored
safely at the sites beyond those dates.'' (Id. at 418). Further, the
Court held that this finding could be made by a generic determination
(Id. at 419). This generic determination was promulgated as the NRC's
1984 Waste Confidence Decision and Rule (49 FR 34658 and 34688).
Comment 2
Jason Hout submitted a comment opposing the petition. He argued
that because operating nuclear power plants can safely store SNF, their
operation should not be directly tied to the availability of SNF
disposal.
NRC Response
The NRC agrees that the petition should be denied. As noted above,
recent developments regarding the development and licensing of the
repository at Yucca Mountain, including the Department of Energy's
motion to withdraw its application, do not mean that the recent Waste
Confidence Decision and Rule are invalid; the Waste Confidence Decision
and Rule assume that the repository at Yucca Mountain will not be
built.
Comment 3
Paul M. Krishna submitted a comment supporting the petition, which
stated that the Secretary of Energy's direction to the Blue Ribbon
Commission (BRC) to not consider mined geologic disposal flies in the
face of the Waste Confidence Rule. He argued that the DOE's motion to
withdraw the Yucca Mountain licensing application potentially results
in nuclear power plant licenses violating the Waste Confidence Rule and
that this violation should affect the granting of any construction
permits, operating licenses, or combined construction permit and
operating licenses for any future nuclear power plants. Mr. Krishna
stated that the NRC needs to either grant DOE's motion to withdraw the
Yucca Mountain license application and stop licensing all future
nuclear power plants, or deny the motion and continue the licensing
process for Yucca Mountain. Finally, Mr. Krishna questioned whether the
NRC was planning to ``come up with another waste confidence rule which
states that on-site storage of SNF and HLW is safe and secure for
another 100 years, by which time we might have a repository,'' which he
claims ``will not work.''
NRC Response
The NRC believes that Mr. Krishna has misinterpreted the Secretary
of Energy's direction to the BRC; the BRC was not directed to refrain
from considering geologic disposal. Instead, the BRC charter
specifically directs it to, ``provide advice, evaluate alternatives,
and make recommendations for a new plan to address these issues,
including * * * Options for permanent disposal of used fuel and/or
high-level nuclear waste, including deep geologic disposal * * *''
(emphasis added) See, https://brc.gov/pdfFiles/BRC_Charter.pdf.
The NRC also disagrees with Mr. Krishna's assertion that the
withdrawal of the Yucca Mountain license application would result in
current or future power plant licenses violating the Waste Confidence
Rule. As discussed above, the Waste Confidence Rule is a generic
determination of the environmental impacts of post-licensed life
storage, which does not depend on a disposal site at Yucca Mountain.
Further, both the Waste Confidence Decision and Rule assume that Yucca
Mountain will not be built. For the purposes of the update to the Waste
Confidence Decision and Rule, the Commission has consistently assumed,
in both the proposed and final Rule and Decision, that Yucca Mountain
would not be built (73 FR 59556; October 9, 2008 and 75 FR 81040). The
Waste Confidence Decision and Rule are based on technological
developments, increased scientific understanding, and a review of
international experience and progress with repositories, not the
ultimate availability of the Yucca Mountain repository (75 FR 81032 and
81037).
As noted previously, the Waste Confidence Decision and Rule are
separate from the Yucca Mountain licensing decision--they assume that a
repository is not constructed at the Yucca Mountain site. It does not
follow from the NRC's pending decision on the DOE's motion to withdraw
the Yucca Mountain application that the licensing of new nuclear power
plants would have to cease if the DOE's motion is granted. Whatever
decision the Commission eventually makes in the
[[Page 10808]]
Yucca Mountain proceeding will have no direct effect on the Waste
Confidence Decision and Rule.
Mr. Krishna also questioned whether the NRC plans to conduct
another Waste Confidence rulemaking to look at storage for more than 60
years after the end of licensed life. In the Staff Requirements
Memorandum for the recent update to the Waste Confidence Decision and
Rule, the Commission instructed the staff to prepare a plan for a
longer-term rulemaking that would update the Waste Confidence Decision
and Rule to address the impacts of storing SNF for more than the 120
years considered in the current Waste Confidence Rule. (ADAMS Accession
No. ML102580229). Mr. Krishna's assertion that a longer-term Waste
Confidence Rule would not work is speculative. NRC rulemakings are
conducted in a manner to ensure that the agency's actions comply with
applicable laws (e.g., the AEA, the Administrative Procedure Act, and
NEPA). NRC rulemaking procedures will provide an opportunity for public
comment when Mr. Krishna can comment on the actual substance of a
proposed rule once it is developed.
Comment 4
James Blaylock commented that continued nuclear power generation is
based on a solution to nuclear waste disposal, and that without a
defined program the Federal government has now invalidated that
commitment. Mr. Blaylock stated that long-term storage is not an
acceptable approach, and that he supports the petition.
NRC Response
As noted in Finding 4 of the Commission's Waste Confidence
Decision, the Commission finds reasonable assurance that SNF 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 SNF storage basin and either
onsite or offsite independent spent fuel storage installations.
The Commission does not agree that the Federal government has
invalidated its commitment to provide for SNF disposal. The Federal
government continues to evaluate options for the ultimate disposal of
SNF and HLW; the Waste Confidence Decision does not consider the
indefinite storage of SNF; disposal is still the ultimate goal (75 FR
81041); and the Nuclear Waste Policy Act is still the law. The Act
continues to mandate disposal in a repository, the collection of funds
for the Nuclear Waste Fund, and that the Federal Government ``has the
responsibility to provide for the permanent disposal of'' HLW and SNF.
(42 U.S.C. 10131 (2006)). Concurrent with its recent motion to withdraw
the Yucca Mountain application, the Secretary of Energy created the
Blue Ribbon Commission on America's Nuclear Future to evaluate, assess,
and advise on possible alternatives for storage, management, and
ultimate disposal of SNF and HLW (part of this evaluation will explore
the need for additional or amended legislation). (https://brc.gov/pdfFiles/BRC_Charter.pdf). These measures demonstrate the Federal
government's continued commitment to addressing the nuclear waste
disposal problem even in the absence of the development of a repository
at Yucca Mountain.
Comment 5
David Hathcock submitted a comment, which stated in full: ``I agree
with this Proposed Rule change. I am a concerned individual.''
NRC Response
Although Mr. Hathcock expressed support for the petition, the NRC
believes that its decision to deny the petition is correct. As stated
above:
(1) The Department of Energy's decision to withdraw its application
for a repository at Yucca Mountain does not mean that the Waste
Confidence Decision and Rule should be revoked. The Waste Confidence
Decision and Rule assume that Yucca Mountain will not be built.
(2) Revocation of 10 CFR 51.23 would not result in the end of
reactor licensing or relicensing. Without the Waste Confidence Decision
and Rule, the NEPA evaluation of post-licensed life storage of SNF
would be included in each individual licensing action.
Comment 6
Winston Hamilton Jr., P.E. submitted a comment opposing the
petition. Mr. Hamilton argued that cutting the funding to the Yucca
Mountain project is not directly related to the nuclear industry. He
also stated that he was ``surprised'' to see such a notice published in
the Federal Register by the NRC.
NRC Response
The NRC agrees that the petition should be denied. As noted above,
the Waste Confidence Decision and Rule assume that a repository is not
built at Yucca Mountain.
The NRC also agrees that cutting the funding for the Yucca Mountain
project does not immediately affect operating reactor performance. As
noted in Finding 3 of the Waste Confidence Decision, 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. (75 FR 81067).
With respect to publication of the PRM, the NRC published the PRM
because, in accordance with 10 CFR 2.802(e), the NRC found that the
petition satisfied the requirements of Sec. 2.802(c).
Comment 7
Noah Miska submitted a comment supporting the petition. Mr. Miska
expressed support for the ultimate goal of the petition--the cessation
of new reactor licensing and the phasing out of existing plants--
because he believes that granting the petition is ``necessary to make
up for the loss of the proposed Yucca Mountain nuclear waste storage
facility.'' Further, Mr. Miska argued that granting the petition would
result in the end of the production of new SNF and HLW, which he
believes represents ``too great a risk to the public's well being to
justify their existence.'' Mr. Miska also noted that the reduction in
nuclear power capacity could be offset by ``investments in wind and/or
solar infrastructure, which could potentially create many thousands of
new jobs.''
NRC Response
As noted in the response to Mr. Kane's petition, the revocation of
the Waste Confidence Rule would not result in the end of nuclear
reactor licensing or relicensing. Rather, the NEPA evaluation of post-
licensed-life storage would shift from the generic determination in the
Waste Confidence Rule to individual licensing proceedings.
Mr. Miska is correct that reaching the ultimate goal of the
petition--the cessation of new reactor licensing and the phasing out of
existing plants--would result in the end of the production of civilian
SNF. But as discussed generically in the Waste Confidence Decision and
specifically in each licensing decision, the NRC has evaluated the
risks of licensing these facilities and has determined that the
facilities can be licensed in accordance with its regulations. To the
extent that Mr. Miska believes that no risk from nuclear power is
acceptable, Congress has spoken otherwise: The NRC has been directed by
Congress in the AEA to establish regulations that allow for the
licensing of nuclear power plants and provide reasonable assurance of
the
[[Page 10809]]
protection of the public health and safety and common defense and
security.
Finally, the NRC acknowledges that a reduction in nuclear power
capacity could be offset by increased use of wind or solar power
(although the amount to which the base-load power provided by nuclear
power could be offset by solar and wind power is still uncertain).
These matters, however, are matters of national energy policy and are
not within the NRC's jurisdiction to consider. The NRC does not promote
the use of nuclear power or any other means of producing power. Rather,
NRC is charged with making sure that as long as national energy policy
includes nuclear power, nuclear power plants are operated safely and
securely and in compliance with regulatory requirements.
Comment 8
The Nuclear Energy Institute (NEI) submitted comments opposing the
petition on several grounds. NEI first argued that any NRC
consideration of the impacts of recent developments in the Yucca
Mountain project should be considered within the then ongoing Waste
Confidence proceeding. Second, NEI argued that as rulemakings consider
issues generically, it is inappropriate to consider Mr. Kane's request
for cessation of new plant licensing and the phase-out of currently
operating plants.
NRC Response
The NRC agrees that the petition should be denied. As noted
previously, the Waste Confidence Decision and Rule do not depend upon
the availability of the repository at Yucca Mountain. Although the NRC
agrees with NEI that separate consideration of an ongoing rulemaking on
individual dockets is inappropriate, Entergy Nuclear Operations (Indian
Point, Units 2 and 3), CLI-10-19, 72 NRC ---- (July 8, 2010) (slip op.
at 2-3) (``Under longstanding NRC policy, licensing boards should not
accept in individual license proceedings contentions which are (or are
about to become) the subject of general rulemaking by the Commission''
(citation omitted)), Mr. Kane has not requested that his petition be
considered in individual dockets, but has instead requested generic
relief.
Thus, the NRC does not agree with NEI's suggestion that the
petition should be denied because it seeks resolution of a generic
issue on individual dockets.
Comment 9
The DOE submitted comments opposing the petition. The Department
argued that the issues raised in the petition fall squarely within the
Commission's recently concluded Waste Confidence rulemaking, and that
the Waste Confidence rulemaking is not dependent upon the availability
of Yucca Mountain for waste disposal. The DOE also noted that dry
storage technology provides DOE with sufficient time to meet its
obligations for a permanent waste disposal under the Nuclear Waste
Policy Act.
NRC Response
The NRC agrees that the petition should be denied. As noted
previously, the Waste Confidence Decision and Rule do not depend upon
the availability of the repository at Yucca Mountain. Further, both the
Waste Confidence Decision and Rule assume that Yucca Mountain will not
be built. In its recent Waste Confidence Decision and Rule, the
Commission affirmed its position on the temporary storage of SNF
pending the construction of a repository. Whether DOE has met its
obligations under the Nuclear Waste Policy Act is outside the scope of
the Commission's Waste Confidence Decision and Rule.
Comment 10
J. Russell Dyer submitted a comment supporting the petition. He
raised two concerns: intergenerational equity and the effect of social
and political stability on the long-term storage and eventual disposal
of SNF and HLW. Mr. Dyer argued that without a ``considered national
policy to replace the Nuclear Waste Policy Act'' the United States
should cease generating the hazardous burden of SNF and HLW. Mr. Dyer
urged the NRC to suspend existing reactor licenses, curtail license
extension actions, and refrain from granting new construction or
operating licenses.
NRC Response
Mr. Dyer is correct that intergenerational equity was considered in
the Nuclear Waste Policy Act and the Commission's Waste Confidence
Decision. (42 U.S.C. 10131 (2006) and 75 FR 81048). But
intergenerational equity does not dictate that a disposal facility must
be available when a nuclear power plant is licensed; as noted in the
Waste Confidence Decision: ``The Commission's approach in Findings 2
and 4 acknowledges the need for permanent disposal, and for the
generations that benefit from nuclear energy to bear the responsibility
for providing an ultimate disposal for the resulting waste.'' (75 FR
81048). Further, this concern was evaluated by the Court of Appeals for
the Second Circuit in NRDC v. NRC. In that case, the Court held that
the AEA did not require the NRC to make a finding that safe permanent
disposal was available when a license is issued. (NRDC v. NRC, 582 F.2d
166, 175 (2d Cir. 1978)). Consistent with that decision, in the Waste
Confidence Decision and Rule, the NRC found reasonable assurance of
safe storage of SNF for at least 60 years beyond the licensed life for
operation of any reactor and that repository capacity will be available
when necessary. (75 FR 81067).
The Federal government continues to evaluate options for the
ultimate disposal of SNF and HLW. Although the Waste Confidence
Decision does not consider the indefinite storage of SNF, disposal in a
geologic repository is still the ultimate goal (75 FR 81041). The
Nuclear Waste Policy Act is still the law: The Act continues to mandate
disposal in a repository, the collection of funds for the Nuclear Waste
Fund, and that the Federal Government ``has the responsibility to
provide for the permanent disposal of'' HLW and SNF. 42 U.S.C. 1013
(2006). Concurrent with its recent motion to withdraw the Yucca
Mountain application, the Department of Energy created the Blue Ribbon
Commission on America's Nuclear Future to evaluate, assess, and advise
on possible alternatives for storage, management, and ultimate disposal
of SNF and HLW (part of this evaluation will explore the need for
additional or amended legislation). (https://brc.gov/pdfFiles/BRC_Charter.pdf). These measures demonstrate the Federal government's
continued commitment to addressing the nuclear waste disposal problem
in this generation.
Mr. Dyer's comment links political and social stability with the
ability to determine and implement a final disposal solution. As
explained in the Waste Confidence Decision and Rule, the Commission has
confidence that the political and institutional hurdles to determining
a path forward can be overcome. (75 FR 81049). This conclusion is
supported by a review of international progress on licensing a deep
geologic repository. (See 75 FR at 81065-81066). In addition to
benefiting from international experience, any new repository program
would benefit from the lessons learned through the preparation and
review of the Yucca Mountain license application. Although the
Commission recognizes the need for broad public support before a
successful repository program can be achieved (75 FR 81066), the
ongoing efforts of the NRC and other Federal entities provide
reasonable assurance that this generation will deal with the ultimate
disposal of SNF and HLW.
[[Page 10810]]
Determination of Petition
For reasons discussed above, the NRC denies PRM-51-13.
Dated at Rockville, Maryland, this 16th day of February 2011.
For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2011-4347 Filed 2-25-11; 8:45 am]
BILLING CODE 7590-01-P
