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Legal Battle Against Rule Crucial To All U.S. Reactor Licenses Rages On

By Douglas P. Guarino

Global Security Newswire

A woman and child eat lunch at a riverside park before the Indian Point Nuclear Power Plant on the banks of New York's Hudson River in 2011. New York state officials and others continue to oppose a proposed federal nuclear waste rule that could enable the plant, and others like it, to continue operating (Don Emmert/AFP/Getty Images). A woman and child eat lunch at a riverside park before the Indian Point Nuclear Power Plant on the banks of New York's Hudson River in 2011. New York state officials and others continue to oppose a proposed federal nuclear waste rule that could enable the plant, and others like it, to continue operating (Don Emmert/AFP/Getty Images).

WASHINGTON -- The leading plaintiffs in a lawsuit that put all licensing decisions for U.S. nuclear power plants on ice a year ago have been hinting in recent weeks that the legal battle over the Nuclear Regulatory Commission’s so-called “waste confidence” rule is far from finished.

In a 2012 ruling, a federal appeals court found that the commission – the federal entity through which all commercial reactors must seek permission to operate --  had not done enough analysis to justify the “confidence” it professed that radioactive waste generated by U.S. plants ultimately would be disposed of safely.

The court said that the commission had not adequately considered the prospect of catastrophic, terrorism-instigated spent-fuel pool fires at reactor sites in the interim. Nor did it thoroughly weigh the fact that the Obama administration had canceled the Yucca Mountain repository project in Nevada without yet identifying a replacement, according to the appeals bench.

NRC officials in September proposed a new waste-confidence rule that they assert addresses the court’s concerns. They published the proposal despite warnings from plaintiffs earlier this year that the scope of an environmental review supporting the rule was not broad enough. Criticism has since continued.

During an Oct. 30 public meeting in Tarrytown, N.Y., a representative of the New York Attorney General’s office -- which led the legal charge last year -- called the proposed new rule “critically flawed.” This, Assistant Attorney General Janice Dean said, is because the supporting environmental review looks at the potential consequences of spent-fuel fires through the lens of nuclear power plants “located in rural or less populated areas.”

Of chief concern to New York officials is spent fuel stored at the Indian Point nuclear power plant, located in Westchester County, just north of New York City.

“The Westchester storage site has the highest surrounding population of any site in the nation,” said Dean, according to a transcript of the late-October meeting. “More than 17 million people live within 50 miles of Indian Point, and there are critical water resources and infrastructure developments close to the site.”

According to Dean, either “the NRC must conduct site-specific analysis of environmental impacts of a severe accident at the Indian Point spent-fuel pools or use the Indian Point site -- and not less populated sites -- as its baseline for spent-fuel pool accident risk nationwide.”

In the proposed rule, however, NRC officials reject the idea that the waste confidence issue cannot be considered generically. They say the federal appeals court, in the same ruling that rejected other aspects of the prior waste confidence proposal, validated the generic approach.

“Although the environmental impacts of spent nuclear fuel storage during the licensed life for operation may be site specific, the impacts of continued storage may be assessed generically,” the proposed rule says. “Changes in the environment around spent fuel storage facilities are sufficiently gradual and predictable to be addressed generically.”

Dean also charged that NRC officials “assumed, with no factual basis,” that all nuclear waste would be gone from spent-fuel pools by 60 years after the licensed life of a nuclear power plant.”

Given that offsite storage locations have not yet been identified, the commission “fails to meet the requirements of the [court’s] ruling by making decisions based on an unsubstantiated hope that the waste will be gone by then,” Dean said.

Industry officials, meanwhile, are looking to shift the focus of the debate away from the question of when the waste will be disposed of in a permanent, underground repository -- and toward the question of whether the commission can be satisfied that the radioactive material will remain safely where it is for the foreseeable future.

During a Nov. 14 public meeting at NRC headquarters in Rockville, Md., Ellen Ginsberg, vice president and general counsel for the Nuclear Energy Institute, said industry “strongly supports discontinuing the term ‘waste confidence.’

“It’s a historical artifact and it doesn’t provide any useful description of the agency’s analysis and conclusions on repository availability and the continued safe and environmentally sound storage of used fuel,” Ginsberg said.

“While the record amply supports a continued finding of reasonable confidence that disposal will become available," she said, "to avoid confusion … the rule should be retitled to something along the lines of ‘storage of spent nuclear fuel for the period after the licensed term of reactor operation.’”

Critics have argued previously that shifting the debate away from the question of when a permanent repository will become available would be improper.

During an Oct. 1 public meeting at NRC headquarters, Janet Phelan Kotra, who worked for the commission for more than 28 years and served as project manager for the waste confidence issue for 14 years, said the proposed rule is erroneously based on the idea that the commission has confidence in the long-term safety of storage at reactor sites.

“NRC is dodging the question the public cares most about when it says disposal will become available ‘when necessary,’” Kotra said.

The commission is accepting public comment on the proposed rule through Dec. 20.

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