Jeremy L. Dillon
RW Monitor
8/29/2014
The Nuclear Regulatory Commission unanimously approved this week the final rule for the “Continued Storage of Spent Nuclear Fuel,” formerly known as the Waste Confidence rulemaking, and General Environmental Impact Statement in a vote that paved the way for the resumption of nuclear plant licensing and re-licensing decisions. The commissioners’ votes changed only minor language details in the final rule as presented by the Staff in late July, while praising the Staff’s methodology to determine that the continued storage of nuclear fuel on-site for 60 years and beyond a reactor site’s operating life would have a limited environmental impact. “Specifically, I agree that the revised rule is the best means to preserve the efficiency of the NRC’s licensing process by adopting generic determinations of the environmental impacts of the continued storage of spent nuclear fuel beyond the licensed life for the operation of reactors,” Commissioner William Ostendorff said in his voting record. “The statement of considerations carefully explains that the rule does not authorize any licensing action. Instead, the GEIS will contribute, along with numerous other evaluations, to future licensing actions.”
The NRC’s proposed waste confidence ruling, released last year, found that spent fuel can be stored on site for 60 years past a reactor’s licensed life. When the NRC first issued a revised waste confidence rule in 2010, the Commission extended the length of time assumed to be safe for storage of spent fuel at a reactor site from 30 to 60 years. In 2012, though, a federal court found the NRC’s rule deficient and mandated an updated version, along with an environmental impact statement. In response, the NRC based its draft revised rule on a generic environmental impact statement that found the environmental impact of storing spent fuel on-site was small in most categories. This final rulemaking, though, removed language concerning a timeline for the availability of a repository after the Commission determined that was outside the NRC’s regulation jurisdiction.
The Commission concurrently passed a Memorandum and Order to lift the licensing decision suspension it passed when it undertook the court’s order to update the rule. In total, 24 licensing actions were affected by the suspension, but only two are awaiting final decisions. “Upon consideration of the final Continued Storage Rule and associated GEIS, we lift the suspension on all final licensing decisions for affected applications as of the effective date of the final rule,” the Commission Order said. “To be sure, the results of the continued storage proceeding must be accounted for before finalizing individual licensing decisions. But once the Staff has otherwise completed its review of the affected applications and has implemented the Continued Storage Rule as appropriate for each affected application, it may make decisions regarding final license issuance.”
Macfarlane Concerned about Indefinite Storage
Although NRC Chair Allison Macfarlane voted to approve the rule, she called for further environmental analysis of indefinite storage to address a loss of institutional control in the future, but the Commission ultimately decided against the additional analysis. Macfarlane’s concerns stem from the scenario where a political impasse in a repository construction would result in the indefinite storage of spent fuel on the surface. “Consistent with my previous vote, I do not fully approve the final GEIS without a formal analysis of indefinite storage to fully address a loss of institutional controls as one scenario,” Macfarlane wrote in her voting record. “While I acknowledge that NEPA does not require consideration of worst case scenarios, I find that this is a unique and unprecedented review: the task of examining the impacts of indefinitely storing spent fuel on the surface without a repository— which would require millennia of active human oversight. Other power industries (e.g. coal or gas) may not be required to predict and disclose the indefinite impacts of their waste products (e.g., carbon pollution, heavy metals in coal ash) with the same rigor as considered her in this GEIS. But we must.”
Macfarlane also called for an update to the GEIS every 10 years to update the rule with the latest developments in technology and research. “For effectiveness, openness, and in the spirit of public participation in the NEPA process, a periodic review of the GEIS is warranted,” Macfarlane wrote. “On a ten year periodic basis, the staff should examine the GEIS, including: (1) the fundamental assumptions that underpin the impact findings for all three storage scenarios, (2) changes in the U.S. national policy or direction on long-term spent fuel management, and (3) experience gained through licensing proceedings that implement the revised rule.” The Chair also recommended the Staff provide on a three-year basis an information paper to the Commission on any significant events, major research activities, and licensing proceedings that affect the rule.
House Lawmakers, Industry Praise Commission Vote
The NRC’s vote was praised by House Republican lawmakers for its ability to get licensing decisions back on track. House Energy and Commerce Chairman Fred Upton (R-Mich.), along with other House Energy leaders, sent the NRC a letter in July inquiring about the timetable of the Waste Confidence decision-making and how the delays have affected the timeliness of license renewals in an effort to draw urgency to the decision-making. They welcomed the NRC’s decision this week. “This action is a welcome step in getting our nuclear future back on track. The NRC can resume fulfilling its core function of issuing licenses, and the commission’s first priority should be completing all pending licenses safely and as soon as possible,” Upton, Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), and Environment and the Economy Subcommittee Chairman John Shimkus (R-Ill.) said in a joint statement.
The House lawmakers’ celebration was echoed by industry. “Industry supports the commission’s decision to continue its longstanding and court-sanctioned practice of considering long-term used fuel storage issues generically,” Nuclear Energy Institute Vice President, Secretary and General Counsel Ellen Ginsberg said in a statement. “Issuance of this rule will maximize efficiency in the licensing and relicensing processes while ensuring the agency complies with the requirement of the National Environmental Policy Act to disclose the environmental impacts of used fuel storage. The D.C. Circuit and other courts have specifically approved this approach, which avoids duplicative and inefficient site-specific reviews.”
NRDC Disagrees with Commission Decision
The Natural Resources Defense Council, one of the parties that brought the case to the courts for review, was not pleased with the NRC’s attempt to follow the court’s order. “The Nuclear Regulatory Commission failed to analyze the long-term environmental consequences of indefinite storage of highly toxic and radioactive nuclear waste; the risks of which are apparent to any observer of history over the past 50 years,” said Geoffrey Fettus, NRDC’s senior project attorney for its nuclear program, in a statement. “The Commission failed to follow the express directions of the Court.”
The NRDC has been arguing that the rulemaking does not address the court’s demand at all. By making the issue an administrational decision on whether or not to complete an EIS, the NRC failed to actually look at the real problems of the environmental impact of indefinite storage, especially if more and more waste is being produced without a final resting place. The slight changes in the final rule would amount to “superficial” changes, Fettus said in an interview with RW Monitor earlier this month. Fettus also indicated that litigation could be upcoming should the rule pass the Commission. “We are going to have to see what if anything the Commission requires as far as changes,” he said. “We will certainly examine all of our options going forward. If the draft final as we see it today goes forward in this form, I think there is certainly potential for litigation.”
