Guest Blog by Diane Curran,
partner in the firm of Harmon, Curran, Spielberg, & Eisenberg, L.L.P. and representative of BREDL, Riverkeeper, and SACE in the court appeal of the waste confidence rule.
Waste Confidence: What you need to know
On June 8, 2012, the US District Court of Appeals threw out the Nuclear Regulatory Commission’s (NRC) so-called ‘waste confidence’ decision. The lawsuit, brought by the state of New York and four environmental groups (Natural Resources Defense Council, Blue Ridge Environmental Defense League, Riverkeeper, and Southern Alliance for Clean Energy) will fundamentally impact NRC licensing proceedings and environmental analysis as well as any future decisions on nuclear waste management.
What is ‘Waste Confidence’– In 1984 the NRC issued its first ‘waste confidence’ decision, which stated that permanent nuclear waste storage was technically feasible and will eventually be made available. The decision conveyed the NRC's confidence that until disposal is available, the material can be safely managed under the NRC's oversight. The original ruling addressed the safe management of spent fuel for 30 years beyond what was then the initial 40-year licensed lifespan of reactors. The NRC updated the rule in 1989, and 2010, each time further extended the predicted date when a repository would be sited. Finally, in 2012, the NRC stopped putting a date on its prediction and simply said that a repository would become available “when necessary.”
What the Court did – The Court threw the NRC’s rule that permitted licensing and re-licensing of nuclear reactors based on the supposition that (a) the NRC will find a way to dispose of spent reactor fuel to be generated by reactors at some time in the future when it becomes “necessary” and (b) in the meantime, spent fuel can be stored safely at reactor sites.
Why the Court did it– After decades of failure to site a repository, including twenty years of working on the now-abandoned Yucca Mountain repository, the NRC “has no long-term plan other than hoping for a geologic repository.” Therefore it is possible that spent fuel will be stored at reactor sites “on a permanent basis.” Under the circumstances, the NRC must examine the environmental consequences of failing to establish a repository when one is needed. (p. 13).
What Does This Mean?– For decades the NRC has licensed and re-licensed reactors without knowing what to do with the highly radioactive spent fuel they will generate. Now, for the first time, the NRC will be required to consider the environmental effects and costs if a repository is never found, i.e., what will be the costs and risks of storing spent fuel at reactor sites for decades, or even hundreds of years? Will spent fuel become an enormous public health hazard? Equally important, the NRC will be required to consider whether there are better ways to provide electricity than using a technology that generates tons of highly radioactive waste and that poses a hazard of environmental contamination and catastrophic fires during storage.
The Court also found that the Waste Confidence Rule is an essential component of all NRC decisions to license new reactors or re-license existing reactors for additional 20-year terms. By vacating the rule, the Court ensures that no new licenses or renewed licenses will be granted until the NRC has conducted a thorough environmental analysis of spent fuel storage and disposal issues.
What Does This Mean for Groups in Licensing Interventions? – For years, environmental and citizen groups have petitioned the NRC to justify the licensing of these reactors in the face of unresolved spent fuel disposal issues, but the NRC has consistently rebuffed their efforts. The Court’s decision will effectively force the NRC to address public concerns about spent fuel disposal before the reactors near their homes may be licensed or re-licensed. Given the large number of existing reactors that have been re-licensed in the past 15 years and the promoting of the so-called “Renaissance” of new reactors, such a reckoning is long overdue. The petitioning groups have since filed another petition to stop final licensing decisions on over 3 dozen nuclear reactors in the US.