By: Scott Farnin, Associate
More than two years ago, the D.C. Circuit vacated and remanded the Nuclear Regulatory Commission’s (“NRC”) Waste Confidence rule in New York v. NRC. As a result of that decision, the NRC suspended all licensing issuances for commercial nuclear power plants until the court’s remand was appropriately redressed. On September 19th, 2014 the NRC issued its Final Rule on Waste Confidence, addressing the concerns of D.C. Circuit. Now, licensing issuances are set to start up again after a two-year hiatus.
As of December 2013, there are an estimated 72,000 metric tons of commercial spent fuel in storage at commercial nuclear power plants. Spent fuel from commercial reactors is currently held on-site at nuclear power plants in 34 states. Originally, the fuel was meant to be held on-site temporarily, while the federal government was going to build a permanent, geological repository for the spent fuel at Yucca Mountain. However, after decades of political roadblocks, the repository at Yucca has yet to open, resulting in spent fuel accumulating on-site at commercial nuclear power plants.
In 1984, the NRC concluded a generic rulemaking proceeding, known as the Waste Confidence Rule, which allowed the NRC to proceed with environmental reviews of commercial reactor licenses without considering the site-specific effects of on-site spent fuel in its environmental analysis. The NRC reached this conclusion because they felt there was a reasonable assurance that a geological repository for spent fuel would be available by 2007-2009 and that the spent fuel from decommissioned plants would be stored there, limiting its environmental impact. After decades of producing and storing radioactive spent fuel on-site, the D.C. Circuit forced the NRC to look at the environmental impacts of on-site storage of spent fuel with the possibility that there would never be a geologic repository built.
In New York v. NRC, the D.C. Circuit held that the rulemaking for the 2010 update to NRC’s Waste Confidence Rule required either an environmental impact statement or a finding of no significant environmental impact under the National Environmental Policy Act. The court felt that the Commission’s evaluation of the risks of spent nuclear fuel stored on-site was deficient. The Court held that the Commission’s conclusion that permanent storage will be available “when necessary” ignored the possibility that a permanent geological repository for spent nuclear fuel would ever become a reality. The Court also determined that the Commission failed to properly examine future dangers and consequences of storing spent nuclear fuel on-site at nuclear plants for sixty years after the expiration of a plant’s license.
As a result of the D.C. Circuit’s decision, the NRC suspended all license issuances, pending completion of the remanded waste confidence proceedings. The suspension of licensing issuances lasted from August 2012 until October 2014, after the Final Rule on Continued Storage of Spent Nuclear Fuel was published. The Final Rule addressed the issues the court raised in New York v. NRC and cleared the way for licensing issuances to resume at the NRC after a two-year halt.
The significance of the new rule lies with the licensing implications. Nuclear reactors seeking renewal of their leases may now be issued licenses to extend their life cycle by an additional 30 years. It also brings some stability in licensing proceedings at a time when energy utilities are facing business decisions with regard to whether they should apply for license renewal or even subsequent license renewal for their commercial reactors.
The fight over Waste Confidence and continued storage of highly radioactive spent fuel is far from over, however, even after the issuance of this rule. Environmental groups have promised legal action against the NRC if it resumes licensing activity because they claim that without a geological repository, nuclear waste can never be safely disposed of. Even with the risk of litigation hanging over the Final Rule, commercial nuclear reactor licensing has hurdled the obstacle that stopped it in its tracks more than two years ago.
 New York v. Nuclear Regulatory Comm’n, 681 F.3d 471 (D.C. Cir. 2012).
 U.S. Nuclear Regulatory Commission, Memorandum and Order, CLI-12-16 at 4 (Aug. 7 2012).
 U.S. Nuclear Regulatory Commission, “2014-2015 Information Digest,” NUREG-1350, Vol. 26, at 87, June 2014.
 Id. at 93.
 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).
 See New York, 681 F.3d 478-79.
 Id. at 473.
 See CLI-12-16 (Aug. 7 2012); NRC Staff’s Answer to Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings at 4, (June 25, 2012) (“the Staff agrees that no final decision to grant a combined license (“COL”), operating license, or renewed operating license should be made in the captioned proceedings until the NRC has appropriately dispositioned the issued remanded by the court”).
 Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (to be codified at 10 C.F.R. pt. 51).
 See Id.
 Timonthy Cama, Green groups threaten lawsuit over nuke waste rules, The Hill, Sept. 29, 2014.