By Edward Davis and David C. Blee
The United States Nuclear Regulatory Commission’s (NRC) August 7, 2012 order to defer any final agency action approving the issuance of new reactor licenses or to grant new license renewals for existing operating reactors — in response to a Federal Appeals Court remand of the agency’s existing waste confidence rule — does not represent the draconian “Full-Stop” that the some of the industry’s opponents claim.
Under the order, the agency will continue with its technical and licensing reviews while holding any final decisions in abeyance until the NRC has developed and completed its work responsive to the Court’s remand. Accordingly, the Order could impact very few, if any, near-term combined license (COL) applications. Moreover, under the NRC’s rules for license renewals, no operating plant would be directly affected where a timely renewal license application has already been submitted to NRC. Current spent fuel storage is certainly safe and not in question.
Notwithstanding, there have been only rare occasions where similar orders have been issued by the NRC. Among them was the Calvert Cliffs Federal Appeals Court Decision in 1971 to require compliance with the newly enacted National Environmental Policy Act (NEPA) and the preparation of environmental impact statements to accompany new reactor licensing and following the Three Mile Accident (TMI).
Moreover, any failure to resolve the waste confidence issue in a timely manner has the potential to delay new-term COLs, cloud license renewals and chill investor confidence in U.S. nuclear energy at a pivotal time.
As such, the NRC’s Order and the Court’s remand are matters to be taken seriously. At the same time, they offer a window of opportunity to chart a path-forward to resolve the back-end of the fuel cycle dilemma, which has plagued U.S. nuclear energy since its infancy. The Reid-Jaczko four-year walk-in-the-wilderness prescription of just-leave-the waste-where-it-is was myopic at best. Given the stakes involved, a head-in-the-sand approach in light of this new challenge would be equal folly.
For over four decades, the industry has operated under a series of interlocking court and regulatory decisions that have benefited and fostered the continued use and development of nuclear energy in the U.S. Starting in the early 1970s, a number a significant legal actions were taken to force the NRC to make a determination when licensing new plants that the spent fuel and nuclear waste could be disposed of safely and permanently. In a 1979 Court of Appeals decision, known as Minnesota vs. NRC, it was found that the NRC was not required to find that such disposal capacity actually existed at the time of licensing of a new plant, only that a finding was necessary that NRC had “confidence” that a permanent repository would eventually be available when needed.
The Court in the Minnesota decision referenced the NRC's 1977 order denying a National Resources Defense Council (NRDC) petition for a "confidence" rulemaking:
"It is neither necessary nor reasonable for the Commission to insist on proof that a means of permanent waste disposal is on hand at the time reactor operation begins, so long as the Commission can be reasonably confident that permanent disposal (as distinguished from continued storage under surveillance) (emphasis added) can be accomplished safely when it is likely to become necessary. Reasonable progress towards the development of permanent disposal facilities is presently being accomplished. Under these circumstances a halt in licensing of nuclear power plants is not required to protect public health and safety."
However, the Minnesota Court case did give rise to what has been enshrined as the Waste Confidence Rule, which the NRC updates from time to time. The significance of this generic rule is that interveners cannot raise any questions in individual licensing proceedings as to whether the nuclear plant with its accumulation of spent fuel might one day become a de facto repository after its license expired because the Federal Government failed to successfully develop a repository.
In addition, by virtue of another generic rule, the so-called Uranium Fuel Cycle Rule and its related Table S-3, one that was challenged all the way to the Supreme Court, opponents cannot question the environmental releases assumed from a repository in individual plant environmental impact statements because NRC has assumed a “zero release” assumption as part of these assessments.
Despite these regulatory protections, the NRC under pressure did concede, as it does today, that the NRC will not continue to license reactors if it does not have reasonable confidence that spent fuel and nuclear waste can and will in due course be disposed of safely. And, specifically, this codified policy commitment relates to permanent disposal and not temporary surface storage.
The linkage between progress towards permanent disposal and continued reactor licensing is at the heart of today’s nuclear waste confidence impasse — one that cannot be resolved through efforts to site temporary storage facilities, notwithstanding how desirable those efforts may be in terms of moving spent fuel from nuclear power plant sites.
When the Obama Administration disbanded and defunded the DOE’s nuclear repository program while seeking to terminate the Yucca Mountain project, former NRC Chairman Gregory Jazcko pushed through an update of the Waste Confidence Rule based on the flawed premise that despite the Administration's efforts to terminate the only repository program that the nation has had over the past 30 years, the NRC still had "confidence” that somehow, some way a repository would materialize precisely when needed. In the meantime, the NRC found that spent fuel could be stored onsite safely for a total of 120 years — 60 years during operations followed by an additional 60 years after license expiration for the repository to become available.
Two states seeking to block license renewals and anti-nuclear groups who have had a long running feud with NRC over this issue saw an opportunity and pounced on this update and its “predicative” finding of confidence as a bridge too far and sued the NRC over the revised rule.
As a result of the Federal Appeals Court’s June 8th remand, the NRC must now go back and develop an environmental assessment of the implications of not having a repository. Based on oral arguments, Petitioners are seeking an expansive, multi-century analysis of the uncertainties, costs and effects of a repository and its potential failure and related consequences as well as the onsite effects of indefinitely storing spent fuel at reactor sites across the country. Such an assessment is analogous to the Environmental Protection Agency’s one-million-year repository dose standard for Yucca Mountain that took nearly a decade to address.
Ironically, the DOE in its 2002 Yucca Mountain EIS submitted to the NRC in connection with its license application did in fact make such an assessment of the potential environmental effects in its “No Action” Alternative and found that potential consequences of not having a repository could be quite significant.
This confluence is manifest destiny for the anti-nuclear community, which now believes it has finally opened up a Pandora’s Box that will force the NRC’s hand not to license new nuclear plants without a repository or even with just the reasonable prospect of one.
In writing the Court’s unanimous opinion in the Waste Confidence case, Chief Judge David B. Sentelle summed-up the paradox:
“The Commission apparently has no long-term plan other than hoping for a geologic repository. If the government continues to fail in its quest to establish one, then SNF will seemingly be stored on site at nuclear plants on a permanent basis. The Commission can and must assess the potential environmental effects of such failure.”
He also highlighted this dilemma during oral argument in responding to a suggestion by an NRC lawyer that the Blue Ribbon Commission (BRC) recommendations were a basis of renewed confidence that there would be a repository sometime in the not too distant future:
“You just related the history of the law, the Congressional resolutions had required the construction of the Yucca Mountain site, and then you tell me that we should reason from the fact that the President killed the Yucca Mountain site and put in some other Commission that therefore there’s going to be a solution. If anything it sounds like this is one more time that the frustration of the Petitioners reflected reality. “
In short, without a repository, there can be no nuclear energy resurgence. What is required now is a concerted action not only by the NRC but also the Administration and the Congress to address the root cause of the waste confidence impasse and put the U.S. nuclear waste program back on track.
A good start would be for the NRC to restart the Yucca licensing process and not wait for a Court mandamus order to do so. Such action is supported by the recent vote 326 members of the House of Representatives to provide additional funding for the Yucca licensing process. In addition, the DOE should re-standup the Office of Civilian Radioactive Waste Management in order to refocus efforts and develop a repository restart plan. Congress should appropriate the necessary funding to put the program back on track.
Progress on these fronts and on Yucca Mountain provides confidence that a repository can and will be available. It also provides a demonstration that there is a political will to resolve the siting issues and to carry out the law that Congress established
Mr. Davis is President of the Pegasus Group and a former President of the American Nuclear Energy Council. Mr. Blee is a former U.S. Deputy Assistant Secretary of Energy and Executive Director of the U.S. Nuclear Infrastructure Council.