Jeremy L. Dillon
RW Monitor
3/20/2015
PHOENIX, Ariz.—The legal challenge to the Nuclear Regulatory Commission’s Continued Storage of Spent Nuclear Fuel Rule, formerly known as Waste Confidence, will not see major action until the fall of 2015, two attorneys involved in the dispute said here this week at this year’s Waste Management conference. A coalition of states and environmental groups filed a suit earlier this year against the rulemaking in the U.S. Court of Appeals for the D.C. Circuit, alleging that the NRC failed to address the court’s 2010 demands to strengthen its Waste Confidence assertion. “We are still waiting on a briefing schedule from the court, and there may be some additional lawsuits associated with the Commission’s recent decision to reject the petition,” said Jonathan Rund, Assistant General Counsel with the Nuclear Energy Institute, who has joined as an intervener with the NRC. “It’s not exactly clear what the schedule is going to be, but I think as we move forward we will have briefings later this year.” Geoffrey Fetus, lead nuclear attorney for the Natural Resources Defense Council, also echoed Rund’s timeline: “Third or fourth quarter is about when it will take place. The briefing schedule will come from the court, in my guess, sometime in May.”
Challengers Focusing on NEPA Concerns
Although the challengers have yet to lay out their formal court argument, it is widely believed to center on an alleged failure on NRC’s part to fully consider all the things needed for a National Environmental Policy Act review, including a thorough alternatives analysis. The challengers argued that the NRC’s use of a cost/benefit study for the alternatives analysis failed to fully investigate the consequences of each alternative, leading to an incomplete NEPA analysis. “We have a problem with a cost/benefit comparison of alternative procedural pathways for a NEPA analysis substituting for actually looking at what alternatives are,” Fettus said. The NRC argued that the risk assessment was low enough for the alternatives that they did not warrant further analysis.
The challengers include many of the parties involved in the original suit that required the NRC to re-do its Waste Confidence rulemaking with a stricter look at environmental effects of continued storage of spent nuclear fuel, including: a state coalition of New York, Vermont, and Connecticut; the Prairie Island Indian Community; a group of nine environmental groups; and the Natural Resources Defense Council.
NRC Says On-Site Storage Is Safe
The NRC determined in its response rulemaking to the court’s order that spent fuel could be safely stored on site well past a reactor’s lifespan. 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 years to 60 years. In its new update, the NRC based its rule on a generic environmental impact statement that found the environmental impact of storing spent fuel on-site was small in most categories, including an indefinite timeframe. This final rulemaking, though, removed language concerning a timeline for the availability of a repository after the Commission determined that was a policy decision outside the NRC’s regulation jurisdiction.
NRC Commissioner William Ostendorff, meanwhile, echoed the Continued Storage Rule’s safety finding during a panel on International Used Fuel Strategies at this week’s conference. Ostendorff’s comments came in light of the momentum for a consolidated storage facility for spent fuel. “Consolidated interim storage is not required to ensure safety or security of spent fuel,” Ostendorff said. “It’s my strong belief, the Commission’s belief, and our staff’s belief with some of the best experts in the world that spent fuel today is being safely and securely stored on-site in spent fuel pools or dry casks. So, the concern about safety or security should not be a reason to go forward with a consolidated storage proposal.”
