NRC Withholds “Waste Confidence” Finding, Citing Yucca Decision

In a potentially troublesome development for the Obama administration and the nuclear industry, a majority of the Nuclear Regulatory Commission (NRC) in late September declined to formally declare that the nation has adequate plans to manage spent fuel from nuclear reactors. The commissioners said the question should be re-visited as a result of the administration’s decision to abandon the planned Yucca Mountain waste repository in Nevada.

In the NRC votes, the two Republican members of the commission refused to approve an update to the agency’s so-called “waste confidence” declaration, even though the commission approved the same opinion in draft form last October. Because the Obama administration has not been able to replace vacancies on the NRC, the five-member commission now consists of one Democrat, Chairman Gregory Jaczko, and two Republicans, former Chairman Dale Klein and Kristine Svinicki, a former aide to former Idaho Republican Senator Larry Craig.

The NRC’s proposed assertion of waste confidence a year ago was based on the belief that the Yucca Mountain repository—or another repository—would be open within 50 to 60 years of the time that any U.S. reactor closes. But since the draft waste confidence rule was approved last October, the Obama administration has declared the Yucca Mountain project dead and said it will appoint a blue-ribbon panel to broadly re-evaluate the nation’s high-level radioactive waste management options.

The NRC’s declaration of “waste confidence” is more than academic. It is legally required before U.S. utilities can proceed with plans to build new nuclear plants, which they are considering for the first time in more than two decades.

Justifying their votes, Klein and Svinicki issued lengthy opinions saying that due to the administration’s plan to kill Yucca, the issue of waste confidence should be re-opened for public comment. Technically, both voted to “partially” approve a rule that would have updated the commission’s previous waste confidence assertion, issued in 1990. Both said the issue should be re-opened only on the matter of the administration’s policy change on Yucca, which was the core of U.S. spent fuel disposal plans for more than two decades.

Chairman Jaczko a day later said he would approve the earlier waste confidence decision, despite the administration’s views on Yucca Mountain. He said that the waste confidence vote “is not based on the Yucca Mountain program, but rather that safe disposal for high-level waste and spent fuel in a mined geological repository is technically feasible.” That remains the case, Jaczko argued.

Jaczko’s vote is unlikely to substantially change the commission’s ultimate position on the need to solicit more public comment, unless two vacant Democratic seats are filled on the commission. That looks unlikely, so it appears that the 2-1 vote on waste confidence will stand for at least a while.

The commission’s turnaround on waste confidence is ironic on several levels, including that it has Svinicki and Klein—commonly viewed as industry-friendly commissioners—casting votes that create a temporary obstacle for construction of new nuclear plants that could become a lasting barrier.

By contrast, Jaczko, a former aide to Senate Majority Leader Harry Reid (D-Nev.), is viewed warily by industry due to his ties to Reid, who has worked ceaselessly to kill Yucca, an industry priority.

Thus, a Jaczko vote to usher through the waste confidence rule might briefly warm the hearts of the chairman’s pro-industry critics.

In calling for new public input on the waste confidence matter, Svinicki and Klein noted that the previous comment period on the proposed rule ended before Obama administration officials definitively declared Yucca dead this spring. “I strongly believe that the commission should give the public an opportunity to comment on whether and, if so, how the administration’s recent announcements of changes in the nation’s high-level waste repository program should affect the proposed update,” said Klein, NRC chairman under the pro-Yucca Bush administration.

Steve Kraft, senior director of used fuel management for the Nuclear Energy Institute, a nuclear industry lobbying arm, downplayed the waste confidence issue vote, saying it would likely have little impact on the industry’s new reactor construction plans. “It was not something we were expecting, but it is not the end of the world,” he said. Kraft predicted the NRC “will come up with maybe not exactly the same answer, but certainly an answer that satisfies the question, and have the rule in place fairly soon, hopefully sometime in the first quarter [of 2010].”

Depending on how the NRC re-crafts the waste confidence decision—and how long it takes—antinuclear groups could be emboldened to amplify claims that no new nuclear plants should be built until a clear disposal path is established for the reactors’ waste. This decision “may be handing the anti-nuclear groups the keys to crown jewels,” said one source who is not anti-nuclear.

A new public comment period also could force the administration to once again defend and explain its controversial decision to abandon Yucca. Administration officials say scientific studies show Yucca is not safe for long-term waste disposal. Many experts dispute that; and many political observers suggest the decision was a political payoff to Reid, who backed President Obama in the 2008 election.

Klein and Svinicki said that their votes were prompted strictly by the administration’s Yucca decision, and that they have no underlying concerns about the nation’s fundamental ability to manage high-level waste and spent nuclear fuel. “My comments here should not be interpreted as casting doubt on the commission’s prior and existing findings of waste confidence,” Svinicki wrote.

“I am confident that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impact in either the reactor spent fuel storage basin, or in dry cask storage on an onsite or offsite independent spent fuel storage installation….”

Both Klein and Svinicki explicitly invited the Obama administration to comment on the waste confidence update when the comment period is re-opened. That might pry a little more clarity from the Energy Department, which asserts that it supports new nuclear plants as part of a low-carbon energy portfolio—even while it did the industry no favors by scuttling Yucca.

—Jeff Beattie is a reporter for The Energy Daily, a sister publication of MANAGING POWER.