Court Challenges NRC Decision to Extend Onsite SNF Storage

A three-judge panel of the U.S. Court of Appeals for the District of Columbia, Circuit ruled unanimously on Friday that the Nuclear Regulatory Commission (NRC) erred in deciding that spent nuclear fuel (SNF) from the nation’s power plants could be stored as long as 60 years after a plant’s operating license expires.

The petitioners—four states (N.Y., N.J., Vt., and Conn.), the Prairie Island Indian Community, and a number of environmental groups—challenged a 2010 update to the NRC’s Waste Confidence Decision (WCD), which was a result of a 1979 decision by the same court of appeals remanding the NRC’s decision to allow the expansion of spent-fuel pools at two nuclear plants. SNF storage for the Prairie Island Nuclear Plant in Red Wing, Minn., is on ancestral land of the Prairie Island tribe.

The original WCD, published in 1984, included five “Waste Confidence Findings” that included the assumption that a permanent geologic waste storage facility would be available by 2007–2009 and that SNF could be safely stored onsite for at least 30 years beyond a plant’s licensed life.

The NRC updated the WCD in 1990 “to reflect new understandings about waste disposal and to predict the availability of a repository by 2025,” the court’s decision noted.

The NRC’s 2010 revision of the WCD states that a suitable repository will be available “when necessary,” rather than by a date certain. In revising a second finding in 2010, which changed the period of time that onsite storage was permissible from 30 to 60 years, the NRC examined the potential environmental effects from temporary storage, such as leakages from the spent-fuel pools and fires caused by the SNF becoming exposed to the air. Concluding that previous leaks had only a negligible near-term health effect and that recent regulatory enhancements will further reduce the risk of leaks, it determined that leaks do not pose the threat of a significant environmental impact. Petitioners challenged both revisions.

The court on Friday found that the NRC “did not conduct a sufficient analysis of the environmental risks. In so holding, we do not require, as petitioners would prefer, that the Commission examine each site individually. However, a generic analysis must be forward looking and have enough breadth to support the Commission’s conclusions.” The court also ordered the NRC to conduct a “true” environmental assessment, as required by the National Environmental Policy Act of 1969 (NEPA), regarding the extension of temporary storage.

The backdrop of this case is the federal government’s continuing failure to establish a long-term nuclear waste repository. Without such a facility, onsite storage is the most obvious alternative. However, that course of inaction is not without its dangers. Even though SNF cannot be used to generate power, it “poses a dangerous, long-term health and environmental risk,” the court noted in its decision. “Determining how to dispose of the growing volume of SNF, which may reach 150,000 metric tons by the year 2050, is a serious problem.”

The court noted that “the Commission is in a difficult position given the political problems concerning the storage of spent nuclear fuel. Nonetheless, the Commission’s obligations under NEPA require a more thorough analysis than provided for in the WCD Update. We note that the Commission is currently conducting an EIS regarding the environmental impacts of SNF storage beyond the sixty-year post-license period at issue in this case, and some or all of the problems here may be addressed in such a rulemaking. In any event, we grant the petitions for review, vacate the WCD Update and TSR, and remand for further proceedings consistent with this opinion.”

The NRC had no immediate comment. Spokespersons for nuclear utilities and the petitioners noted that the decision underscores the need for a permanent waste storage facility.

Earlier this month, a federal court ruled that fees collected from nuclear utilities by the Department of Energy for construction and operation of a permanent waste storage facility were “legally defective” because development of the Yucca Mountain permanent spent fuel waste facility had been discontinued.

Sources: POWERnews, Court of Appeals, D.C. Circuit

—Dr. Gail Reitenbach, POWER managing editor (@POWERmagazine)