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Court’s Waste Confidence Ruling


It Bolsters Nuclear Opponents’ Cause

Two recent decisions by the U.S. Court of Appeals for the District of Columbia show just how much time, money, and political capital have been wasted on developing a rational solution to the political problem of managing the nation’s spent fuel.

The first ruling, handed down by the Court of Appeals on June 1, categorically affirmed that the Department of Energy failed to adequately address the issue of the collection of fees for a spent fuel geologic repository—particularly since President Barack Obama shut down the Yucca Mountain program after he took office. In a sharply worded, unanimous ruling the court said DOE has six months to come up with a better method to calculate the amount of money it needs for the disposal program.

In its second nuclear waste decision in a week, the federal appeals court then ruled that the Nuclear Regulatory Commission “acted hastily” in concluding that spent fuel can be stored safely at reactor sites for the next 100 years in the absence of a national geologic repository. In a unanimous opinion, the court said the Waste Confidence rule’s premise that a repository will be available in the future and that individual utility storage situations can be treated generically does not hold water.

“The commission apparently has no long-term plan other than hoping for a geologic repository,” the court wrote. And it added, “Failing to establish a repository is a possibility that cannot be ignored.”

The court told the NRC it must reassess whether spent fuel can be stored at reactors for at least 60 years. The court said the agency failed to examine the “future dangers and key consequences” of spent fuel pools leaking or catching on fire.

In its ruling the court made a big deal out of the risks of wet storage. Many experts would dispute the judges’ fears about spent fuel pools catching fire, especially after the fuel has been out of the reactor for at least 12 to 18 months.

It also disagreed with NRC’s argument that the Waste Confidence rule did not equate to a major federal action, as defined by the National Environmental Protection Act, because it exists independently of any specific licensing action.

Instead, the court said the Waste Confidence rule failed as an environmental decision because it did not take into account what would happen if the government never opened a repository. The court insisted the NRC must take that possibility into account.

NRC’s Three Options

When decisions like this one are issued, people in Washington engage in parlor guessing games about what the affected parties will do. In the case of the NRC, the agency isn’t saying anything right now. However, there are some plausible options.

C.J. Milmoe, a D.C.-area attorney with long experience in the business side of the nuclear industry, told FCWin a telephone interview he sees three options for the agency.

The first is more or less business as usual. The NRC can take the position that there has to be a repository for spent fuel; therefore, eventually, there will be one. It doesn’t make sense, he says, for the NRC to conduct an impact assessment for long-term storage because reactor sites aren’t built to support it.

The second option is to rely on the existing statute. Under this scenario, the NRC could declare that the Nuclear Waste Policy Act of 1982 is the law of the land, pointing out that Congress has solved the issue, $30 billion is sitting in the Nuclear Waste Fund for program execution, and that implementation depends on the White House developing a mechanism to complete and use a repository.

The third option is a “do nothing” choice. Milmoe says the NRC isn’t obligated to reopen the rule vacated by the court. The prior rule is 10 years old and is the basis for all of the agency’s spent fuel-related licensing decisions to date.

Former NRC Chairman Dale Klein may be having the last laugh on the court’s ruling.

In a March 9, 2010, speech at the NRC’s annual Regulatory Information Conference, he said the agency was standing on shifting sands in an effort to update the Waste Confidence rule.

“What many people fail to understand is that the Waste Confidence rule is a real challenge for us because it is not simply based on the technical judgment of the NRC. Part of the commission’s ‘confidence’ underlying the rule must be based on events that are beyond the NRC’s control, and when those events are in flux, the commission has to be very careful in deciding whether it can credibly say that we have ‘confidence’ that a repository will be open on a given date or period of time.”

Antis Abetted

In an interview June 19, Klein told FCWthe appeals court ruling aids those who oppose nuclear energy by seeking to bottle up the licensing process—and he’s right on the money. The groups that brought the original lawsuit would like to halt the NRC’s licensing decisions for new plants and 20-year operating extensions.

John Sipos, in the New York State Attorney General’s office, told anyone who would listen that he hoped the ruling would require a new analysis of the spent fuel pools at Indian Point, where two operating reactors have pending license renewals in 2014 and 2016. The state of New York wants to shut down the reactors. The states of Connecticut, New Jersey, and Vermont also joined New York in the litigation.

For its part, Entergy, which owns and operates the plant, said there is no reason to believe that the court ruling will affect the current schedule for license renewal.

In the wake of the appeals court ruling, a 24-member coalition of environmental groups filed a petition on June 19 asking the NRC to halt final licensing decisions for 35 reactors. The groups want the agency to carry out the long term assessment called for in the appeals court decision.

Former NRC commissioner Peter Bradford, who issued a statement of support for the petition, said the agency was postponing important decisions that could lead to safety problems similar to those the Japanese experienced at Fukushima.

Overall, the groups contend that the court ruling requires the NRC to suspend final reactor licensing decisions until the agency analyzes the effects of long-term storage of spent fuel at reactor sites.

Status Quo Ahead

These kinds of contentions illustrate the fact that despite the court’s ruling, U.S. nuclear waste policy remains in limbo.

First, Sen. Harry Reid (D-Nev.) will continue to do whatever it takes, politically speaking, to make sure the Yucca Mountain repository program is not resurrected. The Obama administration, which needs votes in Nevada, will do nothing, at least before the election, to deter Reid’s efforts.

Second, environmental groups who have argued against Yucca Mountain are delighted to see another court ruling that, if implemented, would add more “paralysis by analysis” to the spent fuel debate. More delays in crafting a permanent solution to managing nuclear waste further undermines the future of nuclear energy in the U.S.

Third, nuclear utilities will continue to sue to get their money back. When they get it their customers will have paid twice for no results—once as rate payers, and again as taxpayers.

The Nuclear Energy Institute called the court ruling “a disappointment.” It said it agrees with the NRC that on-site storage of spent fuel is safe. The trade association urged the NRC to complete the required environmental analysis soon and re-issue the waste confidence rule.

For its part, the NRC is unlikely to do anything for at least a couple of weeks. It’s controversial Chairman Gregory Jaczko has resigned and is awaiting replacement by Allison Macfarlane, an academic advisor to the Blue Ribbon Commission who has little industry experience.

Her nomination as chair is paired with the nomination for a full term of current commissioner Kristine Svinicki. Action by the Senate is expected before the end of the month.  At press time her nomination has been reported favorably by the Senate Environment & Public Works Committee along with Macfarlane’s.

Former NRC Chairman Talks “Plan B”

When he was a nuclear regulator, Dale Klein’s job was to determine whether the Yucca Mountain site was safe. In a telephone interview last week with FCW, he pointed out that the NRC never had the opportunity to make the determination and said this is still a decision the agency can make if it is funded to do so.

“It makes no sense to update the Waste Confidence rule if you don’t have an underpinning of science. This includes information on whether Yucca Mountain is safe or whether there are limits to dry cask storage.”

Klein doesn’t see any progress on spent fuel issues in an election year. When asked what a “Plan B” would look like relative to the current situation, he says there are three big steps the government could take:

  • Establish centralized above ground interim storage for spent fuel. Get it off reactor sites.
  • Invest in R&D for reprocessing of spent fuel to recover energy value in it
  • Develop a geologic repository similar to those in other nations, managed by a quasi-government entity that is above the political fray

The federal corporation model recommended by the Blue Ribbon Commission could be an effective response to the problem, Klein said. “We just need Congressional will to do it.”

U.S. DOE Has Six Months To Fix Nuclear Waste Fee

Under the Nuclear Waste Policy Act of 1982, the Energy Secretary is required to annually review the amount of fees to be collected. Yet after the Obama administration walked away from Yucca Mountain by withdrawing the related license application from the Nuclear Regulatory Commission, the agency kept right on collecting the money, at a rate of $750 million a year.

The court found this practice to be “legally defective” and salted its opinion with scathing criticisms of the agency’s methods. For instance, it called the government’s defense in the case “far-fetched, almost absurd,” and said DOE’s estimate pegging the cost of Yucca at $97 billion was “obviously inflated.” The court also dismissed the department’s contention that the number includes defense-related waste since civilian reactors don’t generate it.

The litigation was brought by the National Association of Regulatory Utility Commissioners (NARUC). Rob Thormeyer, a spokesman for the group, told FCWin an email statement the court’s decision “is an important victory for nuclear power consumers. The court made it clear the {DOE} has not justified continued payments to the Nuclear Waste Fund.”

The reasons, NARUC says, are that despite the fact that more than $30 billion has been paid into the fund, “there is nothing to show for the investment except political delays, bureaucratic red tape, and a hole in the Nevada desert.”

Thormeyer added, “Today’s decision will force the Energy Department to do its job and prove why it should continue fees for a nuclear-waste program that it says no longer exists.”

The court wrote that it is premature to suspend collection of the fees, and gave DOE six months to come up with an acceptable method.

In June 7 testimony to the Senate, NARUC President David Wright endorsed the recommendation by the DOE Blue Ribbon Commission to reform the way fees are assessed and collected under Nuclear Waste Fund.

Wright, a South Carolina utility regulator, complained that too many people are “content to pass the problem along to future generations.”

# # #

FCW_logo_smallImage Credit:Dirk Ercken/Shutterstock

This is my coverage as published in Fuel Cycle WeekV11:N478 June 21, 2012, by International Nuclear Associates, Washington, DC.


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