NRC Issues Final Rule to Replace Waste Confidence Decision, Ends Licensing Suspension

The Nuclear Regulatory Commission (NRC) today issued a final rule on continued spent nuclear fuel storage and terminated a two-year suspension of final licensing actions for nuclear power plants and renewals. 

The federal regulatory body’s new rule revises the Waste Confidence Decision—which the D.C. Circuit vacated in June 2012—and renames it the “Continued Storage of Spent Nuclear Fuel Rule.”

The Aug. 26–issued rule adopts findings from a supporting generic environmental impact statement (GEIS) and concludes that spent nuclear fuel can be safely managed in dry casks during short-term (up to 60 years), long-term (100 years after the initial 60 years), and indefinite timeframes.

However, the NRC stresses, “The rule does not authorize, license or otherwise permit nuclear power plant licensees to store spent fuel for any length of time.”

Heeding the appeals court’s order to the NRC to consider the possibility that a geologic repository for permanent disposal of spent fuel might never be built, the new rule does not retain a timeline on repository availability. The GEIS, however, contains an analysis of spent fuel pool leaks and fires, as required by the court.

“In this rule, there is no end point to the temporal scope of the NRC’s analysis of the environmental impacts of continued storage, Further, there is no legal requirement to include a timeline in the rule,” NRC staff reasoned in a recommendation submitted to commissioners last month. “Although future repository availability remains an important consideration because it provides an eventual disposition path for spent fuel, it is no longer needed to provide a time limit for the environmental impacts analysis because the GEIS evaluates the environmental impacts of indefinite storage.”

Resolving Environmental Violations

The D.C. Circuit in June 2012 vacated the NRC’s 2010-issued Waste Confidence Decision, finding that an NRC ruling that said spent nuclear fuel from the nation’s power plants could be stored as long as 60 years after a plant’s operating license expires violated the National Environmental Policy Act. That court also ordered the agency to consider the potential environmental consequences of the federal government’s failure to build a permanent repository and required it to analyze the environmental impacts of potential leaks and fires in used fuel storage pools. 

The case was widely regarded as a victory for the four states (New York, New Jersey, Connecticut, and Vermont) and a number of environmental groups that had petitioned the court for a review of the NRC’s temporary storage rule.

Following the federal court’s decision, the NRC in August 2012 put on hold all final licensing decisions on new reactors, reactor license renewals, and spent fuel storage facility renewals until a new rule was finalized.

In September 2013, the federal body issued a proposed rule concluding that storage in used fuel pools is feasible for 60 years after the licensed life of a reactor and in dry casks for indefinite periods, assuming that dry storage systems can be replaced every 100 years.

An Industry Friendly Rule?

The NRC on Tuesday in a separate order also approved lifting suspensions and “provided direction on the resolution of related contentions in 21 adjudications before the commission and the Atomic Safety and Licensing Boards.” That order also allows the NRC to issue final licensing decisions, as needed, once the final rule becomes effective after publication in the Federal Register.

Nuclear industry group the Nuclear Energy Institute (NEI) lauded the NRC’s affirmation of the final rule, claiming “it supports the nuclear energy industry’s position that used nuclear fuel from commercial reactors can be safely managed in specially designed fuel pools in the short term and in steel and concrete storage containers for longer timeframes.”

“Industry supports the commission’s decision to continue its longstanding and court-sanctioned practice of considering long-term used fuel storage issues generically,” said Ellen Ginsberg, NEI vice president, secretary, and general counsel.

“Issuance of this rule will maximize efficiency in the licensing and relicensing processes while ensuring the agency complies with the requirement of the National Environmental Policy Act to disclose the environmental impacts of used fuel storage. The D.C. Circuit and other courts have specifically approved this approach, which avoids duplicative and inefficient site-specific reviews.”

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)