By: Allison In, Associate

In 1979, the D.C. Circuit ordered the Nuclear Regulatory Commission (“NRC”) to generically determine whether a permanent offsite disposal solution for spent nuclear fuel (“SNF”) would be available at the expiration of two nuclear reactors’ operating licenses, which had been scheduled for 2007 and 2009, and, if not, whether SNF could be safely stored at those reactors until such solution became available.[1] As a result, in 1984, NRC published the Waste Confidence Decision (“WCD”), codified at 10 C.F.R. 51.23.[2] Along with an Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”) pursuant to the National Environmental Policy Act (“NEPA”), the 1984 WCD made five findings.[3] 

In 2010, shortly after the Department of Energy abandoned the Yucca Mountain project as a permanent SNF repository, NRC published its WCD update, which revised the second and fourth findings.[4] As for the second finding in the 2010 WCD, NRC eliminated a set deadline by which a permanent disposal facility, i.e., mined geologic repository, will be available—the deadline had already been extended in 1990 from 2007–2009 to the first quarter of the twenty-first century.[5] Instead, NRC determined that the sufficient capacity of such a permanent repository will be available “when necessary” instead of “within 30 years beyond the [reactor’s] licensed life for operation.”[6] As for the fourth finding, NRC determined that the safe temporary storage of SNF in a combination of storage at reactor’s site or independent spent fuel storage installations (“ISFSIs”) will be possible for “at least 60 years beyond the [reactor’s] licensed life for operation,” which is revised from the previous “at least 30 years” beyond such life either at reactor’s site or ISFSIs.[7]  

In 2012, the same Circuit in Minnesota vacated the NRC’s 2010 WCD. The D.C. Circuit held that NRC did not comply with the NEPA because: (1) NRC failed to evaluate the environmental effects of failing to secure permanent disposal in concluding that permanent disposal with sufficient capacity will be available “when necessary” in the second finding;[8] and (2) NRC, in extending the period of safe temporary storage from 30 to 60 years beyond the reactor’s licensed life, failed to examine the risk of storage leakage in a forward-looking fashion and did not examine the consequences of pool fires.[9] 

In a response, on September 13, 2013, NRC published a proposed rule based on the general environmental impact statement (“EIS”) of the continued SNF storage beyond a reactor’s licensed life, instead of its traditional EA and FONSI, but otherwise maintained the same conclusion as in the vacated 2010 WCD in New York.[10] In the proposed 2013 WCD, NRC appears to address each failure that the D.C. Circuit found as being insufficient to meet the NEPA requirements. In the EIS, NRC evaluated environmental impacts of the continued storage in three timeframes: 60 years, 160 years, and indefinite years after a reactor’s licensed life.[11] NRC also considered the risk of storage leakage and pool fires in a forward-looking manner.[12] But in doing so, NRC relied on what they claimed were “reasonably foreseeable assumptions,” including: the first construction of an ISFSI of sufficient size to hold all SNF before the end of the licensed life; handling and transfer of all SNF from spent fuel pools to ISFSIs by the end of the short-term period; and replacement of spent fuel canisters and casks, and construction, operation, and replacement of ISFSIs and its transfer system facility, all of which occur every 100 years after the end of the short-term period without a permanent repository.[13] 

After the recent government shutdown, NRC resumed holding its series of nationwide public meetings to gather comments on its proposed 2013 WCD and EIS.[14] As such, we should soon be able to find out whether NRC will face another New York v. NRC challenge based on the NEPA and whether challenges against its heavy and optimistic assumptions about safe “temporary” storage of SNF for 60 years of post-licensed life will arise.