Attorneys general in four northeastern states are weighing options after a defeat in federal court last week, in which the D.C. Circuit Court of Appeals denied their request to vacate a Nuclear Regulatory Commission rule allowing indefinite storage of nuclear waste at American power plants.
The court on June 3 rejected a petition from Vermont, New York, Massachusetts, and Connecticut against NRC’s continued storage rule, formerly known as the waste confidence rule. The petitioners argued that the rule’s “one-size-fits-all” generic environmental impact statement (GEIS) fails to address site-specific safety concerns at plants like New York’s Indian Point, which presents a unique set of circumstances given its proximity to New York City.
Vermont Assistant Attorney General Kyle Landis-Marinello said by email Thursday that his office is disappointed with the decision, and that the group has not yet decided how to proceed. One positive, he said, is that the court recognized “that the NRC will give due consideration to waiver petitions raising non-frivolous site-specific challenges to reactor licensing.”
The court ruled that the GEIS “thoroughly considers essentially common risks to reactor sites,” particularly risks concerning spent fuel pool fires and leaks. The three-judge panel noted that the NRC “waiver” process allows the regulator to consider site-specific issues. The ruling acknowledged “the political discord surrounding our nation’s evolving nuclear energy policy,” but ultimately the three-judge panel disagreed with petitioners that the NRC rule is “arbitrary or capricious.”
“To the extent that the petitioners disagree with the NRC’s current policy for the continued storage of spent nuclear fuel, their concerns should be directed to Congress,” the ruling states.
Doug Cohen, spokesman for New York Attorney General Eric Schneiderman, wrote in an email Monday: “We are pleased the court recognized the importance of our claims regarding the risks of on-site nuclear waste storage, and look forward to raising them at a later date.” He said he could not comment on any potential for appeal.
Rob Blanchard, spokesman for Connecticut Attorney General George Jepsen, said by email Friday that the office is “continuing to evaluate the decision and consider available options.”
Introduced in 1984, NRC’s waste confidence rule was amended in 2010, extending the length of time assumed to be safe for storage of spent fuel at reactor sites from 30 to 60 years. Two years later the D.C. Circuit Court of Appeals found the rule to be deficient, and directed NRC to consider that the United States might never site a permanent repository for nuclear waste.
The latest ruling denies the petitioners’ claim that NRC did not adequately evaluate the possibility of repository failure in formulating the new rule, stating that the Natural Resources Defense Council, a co-petitioner that joined the four states, “provides no indication of how the NRC can or should otherwise assess the risk of failure to site a repository.” The decision also denies the petitioners’ claim that the storage rule fails to address cumulative impacts of waste storage, and that it ignores short-term, high-volume leaks.
“We are gratified the court recognized the caliber of work performed by the NRC staff on the continued storage rule,” NRC spokesman David McIntyre said by email Monday. “The court’s decision reflects the careful, conscientious effort by the staff on a complex, controversial issue performed under a tight deadline and intense public scrutiny, as well as their dedication to meeting the requirements of the law and the Commission’s direction.”
