Court rejects NRC used fuel ruling

The US Nuclear Regulatory Commission (NRC) did not conduct a sufficiently detailed analysis of issues related to its decision to extend the time that used nuclear fuel can be temporarily stored onsite at power plants, an appeals court has ruled. The NRC must now conduct additional environmental studies and reissue the ruling.

The US Nuclear Regulatory Commission (NRC) did not conduct a sufficiently detailed analysis of issues related to its decision to extend the time that used nuclear fuel can be temporarily stored onsite at power plants, an appeals court has ruled. The NRC must now conduct additional environmental studies and reissue the ruling.

The used fuel pool at the Shearon Harris plant (Image: Progress Energy)

In December 2010, the NRC announced its decision to double the time that US nuclear power utilities can store used fuel onsite to 60 years after plant shutdown. This period had previously been limited to 30 years. The revised regulations came into effect in January 2011. The commission noted in its final ruling that it will be developing a plan for longer-term storage and will conduct a full assessment of the environmental impact of storage beyond the 60 year period.

However, environmental groups and four north-eastern US states - Connecticut, New Jersey, New York and Vermont - jointly filed a lawsuit in February 2011 against the NRC claiming that in making the changes it "acted arbitrarily, abused its discretion, and violated the National Environmental Policy Act, the Administrative Procedure Act (NEPA), the Atomic Energy Act, the Commission's policies and regulations" and other federal laws and regulations. The NRC should have performed site-by-site environmental impact studies before extending the temporary storage rule, they said.

The petitioners also noted that the NRC had found "reasonable assurance" that sufficient, licensed, off-site storage capacity will be available to dispose of radioactive waste "when necessary." However, they pointed out that efforts to site a national radioactive waste repository at Yucca Mountain, Nevada, were suspended in 2010 and no replacement facility has yet been identified.

The US Court of Appeals for the District of Columbia Circuit has now ruled in favour of the petitioners, saying that "the rulemaking at issue here constitutes a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact." It added, "Nonetheless, whether the analysis is generic or site-by-site, it must be thorough and comprehensive. For these reasons, we grant the petitions for review, vacate the commission's orders, and remand for further proceedings."

In addition, the court said that the NRC's evaluation of the risks of used fuel storage was deficient in two ways: "Firstly, in concluding that permanent storage will be available 'when necessary,' the commission did not calculate the environmental effects of failing to secure permanent storage - a possibility that cannot be ignored; and secondly, in determining that spent fuel can safely be stored onsite at nuclear plants for 60 years after the expiration of a plant's licence, the commission failed to properly examine future dangers and key consequences."

The court, while "recognizing that the commission is in a difficult position given the political problems concerning the storage of spent nuclear fuel," concluded that the NRC's obligations under NEPA require a more thorough analysis than it had provided. However, it noted that the NRC is conducting an environmental impact statement of used fuel storage beyond 60 years and that "some or all of the problems here may be addressed in such a rulemaking."

The Washington DC-based Nuclear Energy Institute (NEI) said that it was disappointed by the court's ruling as it believed that the NRC "supported its conclusions in the waste confidence decision." Ellen Ginsberg, NEI's vice president and general counsel, commented: "Nonetheless, we urge the commission to act expeditiously to undertake the additional environmental analysis identified by the court in the remand. We also encourage the agency to reissue the rule as soon as possible."

She added, "We are pleased that the court specifically affirmed the agency's discretion to address the environmental issues in a generic fashion using an environmental impact statement or an environmental assessment with a finding of no significant impact."

Researched and written
by World Nuclear News