After Court Win, Groups Challenge Nuclear “Waste Confidence” Review

ROCKVILLE, Md. – Watchdog groups are challenging several steps the Nuclear Regulatory Commission is taking after it lost a civil case that charged the agency with assuming the United States will eventually establish a secure storage site for nuclear waste even though no plans today exist.

Prior to the lawsuit, the commission had made a regulatory decision that a long-term storage facility will be available “when necessary,” despite the Obama administration’s cancelation of the controversial Yucca Mountain project in Nevada and uncertainty surrounding a potential replacement.

Had the decision survived court scrutiny, the commission could have continued licensing nuclear power plants. Instead, it has put on hold the licensing of new plants and the repermitting of aging facilities until it can satisfy the terms of the June 8 federal court ruling in favor of the plaintiffs – several state governments and nongovernmental organizations.

In the case New York v. NRC, the U.S. Court of Appeals for the D.C. Circuit found the commission did not consider the environmental impacts that a lack of a secure, permanent storage facility could create.

The commission also failed to properly examine the potential consequences of fires in spent fuel pools at reactor sites – where nuclear waste has been piling up in the absence of a permanent disposal facility, the court ruled. Among watchdog groups’ concerns is the such fires could result from acts of terrorism and subsequently could cause massive radiation releases.

In response to the court ruling, the commission last month began taking steps toward developing a new environmental impact statement that would support its so-called “waste confidence” decision. In an Oct. 25 notice, the commission asked the public by Jan. 2 to offer recommendations on the scope of the environmental review

Potential scenarios that could be looked at as part of the review include a repository becoming available in the middle of the 21st century, the end of the 21st century or not at all, according to the notice. All environmental impacts resulting from the storage of spent nuclear fuel are potentially subject to such a review.

In a Nov. 8 letter to the commission, a coalition of 25 watchdog groups argued that the notice violates NRC rules. The commission should withdraw the notice and start the process over, says the letter, signed by Geoffrey Fettus, a lawyer with the Natural Resources Defense Council, and Diane Curran, an attorney who represented some of the groups in the suit against the commission.

The lawyers said the notice fails to clearly explain that the regulatory action that leads to potential environmental impacts is the licensing of nuclear reactors, and that one way to mitigate these impacts is to stop granting such licenses.

The notice “is likely to mislead commenters into viewing the proposed action and its alternatives as some combination of methods for storing spent fuel.” This range of scenarios is too narrow to satisfy federal law “because it would not address the original agency action that causes the production of spent reactor fuel” in the first place, the letter suggests.

Commission spokesman David McIntyre on Thursday said that NRC staff is working on a response to the letter and would not comment on the specific complaints until the official statement is approved by NRC Chairwoman Allison Macfarlane.

During a public meeting at NRC headquarters here on Wednesday, representatives of several watchdog groups asked that the commission at least extend the comment deadline until Jan. 30. They said it would be difficult to provide thorough, technically detailed advice sooner than that date, particularly because of the upcoming holiday season.

Industry representatives encouraged NRC officials to stick to the current deadline for comments, along with a planned two-year schedule for completing its work in response to the court ruling, which includes wrapping up the environmental analysis and the new waste confidence rule. They also encouraged the commission to use an environmental impact review that the Energy Department had already conducted for the canceled Yucca Mountain repository to inform the current review.

Watchdog groups argued use of the Yucca Mountain documents was improper, in part because the commission had never ruled on their validity.

“I would suggest that it would not be legitimate for you to rely on the Yucca Mountain EIS for anything,” Arjun Makhijani, president of the Institute for Energy and Environmental Research, told the NRC waste confidence directorate on Wednesday. “You will omit going to the beginning of every issue and doing your own analysis.”

Makhijani also said the commission should add to its list of potential scenarios for environmental impacts one that involves a repository not becoming available for 200 to 300 years. This is because, at that point in time, radiation levels from spent fuel would be reduced enough so that terrorists would be able to steal the fuel and use it to construct weapons, he said.

“You can’t steal fuel today because of the radiation barrier,” Makhijani said. “The radiation barrier is the main barrier to preventing mischief from spent fuel whether it’s bombs or radiation mischief.”

Makhijani argued that the commission does not currently have enough information available about such impacts to complete its work within a two-year time frame. He said he was surprised by a statement by NRC lawyer Tison Campbell suggesting that confidence that a repository will become available has not been shaken.

“The court explicitly said that you can’t just assume that,” Makhijani said. “You can’t construct a path to a waste confidence decision by hanging onto that idea.”

November 15, 2012

ROCKVILLE, Md. – Watchdog groups are challenging several steps the Nuclear Regulatory Commission is taking after it lost a civil case that charged the agency with assuming the United States will eventually establish a secure storage site for nuclear waste even though no plans today exist.