The U.S. Nuclear Regulatory Commission (NRC) on Tuesday put a hold on all final licensing decisions—include those for 19 construction and operating licenses (COLs), 12 license renewals, and one operating license—until the federal body can hash out how it will deal with spent nuclear fuel. The order comes on the heels of an Aug. 3 federal court ruling that puts off a decision on whether to force the NRC to act on the Yucca Mountain permanent nuclear waste repository’s long-pending license application. 

License Decisions Frozen

The NRC’s five members voted 5-0 on Tuesday to suspend final issuance of license renewals and new operating licenses. The order does not stop hearing or other work on licensing activity, and no license decisions were imminent. "Essentially, the Order represents a regulatory agency taking a deep breath while trying to decide the best way to satisfy the Court," NRC spokesperson Dave McIntyre said.  

“Because of the recent court ruling striking down our current waste confidence provisions, we are now considering all available options for resolving the waste confidence issue, which could include generic or site-specific NRC actions, or some combination of both,” the commission said in the Order. “We have not yet determined a course of action.” In the meantime, it said, “we will not issue licenses dependent upon [waste confidence] until the court’s remand is appropriately addressed.” Licensing reviews and proceedings should continue, it added.

It its order, the NRC directed the various Atomic Safety and Licensing Boards conducting hearings on the applications to shelve any new filing regarding waste confidence until the commission could issue more guidance on how to proceed. The ruling also applied to "several motions to reopen and new petitions pending before the Commission," McIntyre said.

The public will be able to participate in the process as the agency moves forward on waste confidence, the order said.  “The public will be afforded an opportunity to comment in advance on any generic waste confidence document that the NRC issues on remand–be it a fresh rule, a policy statement, an [Environmental Assessment] or an [Environmental Impact Statement],” it said.

Nineteen COL application decisions have been frozen by the order, including: Calvert Cliffs Unit 3; Detroit Edison’s Fermi Unit 3; Duke Energy’s William States Lee Units 1 and 2; Entergy’s Grand Gulf Unit 1; Florida Power & Light’s Turkey Point Units 6 and 7; Luminant’s Comanche Peak Units 3 and 4; South Texas Units 3 and 4; PPL’s Bell Bend plant; Progress Energy’s Shearon Harris Units 2 and 3 and Levy County Units 1 and 2; the Tennessee Valley Authority’s (TVA’s) Bellefonte Units 3 and 4; and Dominion’s North Anna Unit 3.

Final decisions have also been stalled for 12 license renewal applications, including: Entergy’s Indian Point Units 2 and 3 and the company’s Grand Gulf Unit 1; Exelon’s Limerick Units 1 and 2; FirstEnergy’s Davis-Besse Unit 1; NextEra’s Seabrook Unit 1; PG&E’s Diablo Canyon Units 1 and 2; South Texas Units 1 and 2; and Union Electric’s Callaway Unit 1.    The TVA’s application for an operating license at its Watts Bar Unit 2 has also been frozen.

The NRC’s actions on Tuesday were prompted by a June 18 petition filed by 24 environmental and anti-nuclear groups that urged the regulatory commission to respond to a landmark court ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck down the NRC’s so-called "waste confidence" provisions on June 8. 

In that case, the court ruled that the NRC violated the National Environmental Policy Act (NEPA) when it issued its 2010 update to the Waste Confidence Decision and accompanying Temporary Storage Rule and decided that spent nuclear fuel from the nation’s power plants could be stored as long as 60 years after a plant’s operating license expires. The court remanded the case for further consideration.

In hailing the NRC action, the petitioning groups also noted that most of the U.S. reactor projects were already "essentially sidetracked by the huge problems facing the nuclear industry, including an inability to control runaway costs, and the availability of far less expensive energy alternatives."  Diane Curran, an attorney representing some of the groups in the Court of Appeals case, said the NRC’s decision halts all final licensing decisions—but not the licensing proceedings themselves—until NRC completes a thorough study of the environmental impacts of storing and disposing of spent nuclear fuel.  “That study should have been done years ago, but NRC just kept kicking the can down the road." 

When the federal court ordered the NRC to stop and consider the impacts of generating spent nuclear fuel for which it has found no safe means of disposal, the agency could choose to appeal the decision by Aug. 22 or choose to analyze the environmental impacts over the next few years, Curran added.  "With today’s Commission decision, we are hopeful that the agency will undertake the serious work.”   

Prolonging the Yucca Mountain Saga 

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit on Aug. 3 issued a divided order holding in abeyance a case that had sought to compel the NRC to comply with a statutory mandate and resume consideration of the Yucca Mountain licensing proceedings. 

In that case, Aiken County, N.C. et al., v. NRC, several states, local government units, and companies had petitioned the court to force the NRC to continue review of the Department of Energy’s (DOE’s) June 2008-submitted application to license the Yucca Mountain facility. In 2010, the Obama administration’s opposition to the repository prompted the DOE to move to withdraw its application and terminate the project. The NRC’s Atomic Safety and Licensing Board had initially denied the motion, but under the direction of the commission, suspended the proceeding (though it preserved necessary records to abide by budgetary constraints). 

States and other petitioners argued that the NRC has a statutory duty under the Nuclear Waste Policy Act of 1982 (NWPA) to consider the application. The NRC told the court it could not comply on the grounds that it does not have sufficient congressionally appropriated funds to complete action on the license application (though it conceded it had $10.4 million to at least start the process). The federal court on Aug. 3 gave the NRC until Dec. 14 to report back whether or not Congress had allocated the funding. 

Circuit Judge Brett Kavanaugh, in a concurrence, said that Congress’s upcoming appropriations decisions could "well affect whether those expenditures are necessary." If Congress provided no "additional clarity" on the matter, the court would be compelled to act on the petition for mandamus, he wrote. 

Senior Circuit Court Judge A. Raymond Randolph dissented, writing, "Here, the Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward. There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law. Holding the case is abeyance indefinitely, based on the mere possibility of future legislative action, shirks this basic obligation and perpetuates the Commission’s unlawful delay."

Ellen Ginsberg, the Nuclear Energy Institute’s vice president and general counsel, said that the nuclear energy industry was "disappointed that the Court of Appeals did not take the opportunity to directly address the unambiguous statutory obligation imposed on the Nuclear Regulatory Commission by the Nuclear Waste Policy Act." She expressed optimisim, however, that that both the concurrence by Judge Kavanaugh and the dissent by Judge Randolph agree that the Nuclear Regulatory Commission has a clear statutory obligation under the Nuclear Waste Policy Act. Although he supported holding the case in abeyance, Judge Kavanaugh rejected the NRC’s bases for its action and opined the NRC ‘appears to have no legal authority to defy the law."

Attorneys at law firm VanNess Feldman said that the possibility that the court’s order could stimulate legislation providing guidance one way or the other concerning Yucca Mountain was "very unlikely at present." 

The firm points out that Democratic and Republican Senate leaders on July 31 struck a deal on a continuing resolution that would maintain the current funding levels for the federal government through March 2013. If Congress passes that resolution in September, and it is without changes to current program funding levels, then there would be no additional funding or congressional guidance regarding the Yucca Mountain license application.   

"In that event, it would appear likely that the Court would issue a writ of mandamus directing the NRC to resume the proceeding using the remainder of the funds Congress has appropriated," the attorneys suggest. 

Sources: POWERnews, NRC, D.C. Circuit, VanNess Feldman

—Sonal Patel, Senior Writer (@POWERmagazine)