Why the Nuclear Regulatory Commission (NRC) is trying to get the public’s confidence in nuclear waste management: NRC lost an appeal in 2012. Southern Company’s new nukes at Plant Vogtle scraped by before this happened, but there’s still no place for nuke waste even from the existing Vogtle 1 and 2 reactors to go. NRC has a revised Environmental Impact Statement (EIS) scheduled to be finished October 2014.

Here’s U.S. DC Circuit Court of Appeals decision No. 11-1045 NY v. NRC 8 June 2012, on the Court’s website and on NIRS’ website.

David Erickson and Mark Anstoetter wrote for Lexology 17 August 2012, NRC suspends issuance of nuclear power plant licenses,

In response to the D.C. Circuit Court of Appeals’ decision to vacate its rule regarding long-term storage of nuclear waste, New York v. Nuclear Regulatory Commission, No. 11-1045 (D.C. Cir. 6/8/12), the Nuclear Regulatory Commission (NRC) has agreed to suspend issuance of licenses until it resolves the issues the court identified. In re Calvert Cliffs Nuclear Project, LLC, No. 52-016-COL (NRC 8/7/12). Given the U.S. Department of Energy’s abandonment of the proposed Yucca Mountain storage site, the court vacated NRC ‘s determinations that permanent safe storage for spent nuclear fuel would be available “when necessary” in the future and that spent fuel could be stored safely beyond a reactor’s life using a spent fuel pool and on- or off-site dry cask systems.

NRC’s decision to suspend issuance of permits covers more than 20 pending permit actions. It does not suspend processing of applications for new nuclear plants or renewal licenses for existing plants, but does prevent issuance of a final permit in those matters for the time being. According to the commission, it is considering all available options to resolve issues of waste confidence and may pursue a generic approach or implement site-specific actions relating to waste confidence. NRC has also confirmed that it will solicit public comments for any generic determinations, which would be made in an environmental assessment or an environmental impact statement. Any case-by-case decisions could be challenged using existing NRC appeal mechanisms.

NRC 7 August 2012, Memorandum and Order CLI-12-16,

We have received a series of substantively identical petitions to suspend final licensing decisions, and requesting additional related relief, in the captioned matters.¹ As discussed below, we grant the requests in part and deny the requests in part.

¹ See, e.g., Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings (June 18, 2012) (Petition). In addition, Friends of the Earth, and Eric Epstein, on behalf of Three Mile Island Alert, Inc., submitted the identical petition to the Commission, without identifying a particular docket. For convenience, page references in today’s decision correspond to the Petition filed by Mindy Goldstein of the Turner Environmental Law Clinic, in the Turkey Point combined license (COL) matter. In response to the June 19, 2012, Order of the Secretary, we received answers from the NRC Staff, the applicants in all captioned matters, and a letter from the Nuclear Energy Institute (seeking to participate as amicus curiae). As we did in the Callaway matter, we consider the petitions, and take action, as an exercise of our inherent supervisory authority over agency proceedings. We need not, therefore, address procedural issues that would merit further consideration in adjudications. See Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC __, __ (Sept. 9, 2011) (slip op. at 18-19 & n.65).

Recently, the U.S. Court of Appeals for the District of Columbia Circuit found that the NRC had violated the National Environmental Policy Act (NEPA) in issuing its 2010 update to the Waste Confidence Decision and accompanying Temporary Storage Rule.² The court vacated both the Decision and the Rule, and remanded the case for further proceedings consistent with the court’s opinion.³ In response to the court’s decision, the petitioners request that we: (1) suspend final licensing decisions in reactor licensing cases, pending the completion of our action on the remanded Waste Confidence proceeding; (2) provide an opportunity for public comment on any generic determinations that we may make in either an environmental assessment (EA) or environmental impact statement (EIS); and (3) provide at least sixty days to seek consideration in individual licensing cases of any site-specific concerns relating to the remanded proceedings.⁴

² New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). See generally Final Rule, Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010); Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).

³ In particular, the court struck down the Waste Confidence Decision’s “Finding 2,” (reasonable assurance exists that sufficient geologic repository capacity will be available for disposal of highlevel waste and spent nuclear fuel “when necessary”), and “Finding 4” (reasonable assurance exists that, if necessary, spent fuel can be stored safely without significant environmental impacts beyond a reactor’s licensed life for operation, in a combination of storage in its spent fuel pool and either an onsite or offsite dry cask storage system).

⁴ See Petition at 3-4, 10-12.

Waste confidence undergirds certain agency licensing decisions, in particular new reactor licensing and reactor license renewal.⁵ 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. We have not yet determined a course of action. But, in recognition of our duties under the law, we will not issue licenses dependent upon the Waste Confidence Decision or the Temporary Storage Rule until the court’s remand is appropriately addressed.⁶ This determination extends just to final license issuance; all licensing reviews and proceedings should continue to move forward.⁷

The petitioners seek assurance that they will be able to participate in future NRC proceedings on waste confidence. We hereby provide that assurance. 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 EA, or an EIS.⁸

⁵ See 10 C.F.R. § 51.23(b).

⁶ See NRC Staff’s Answer to Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings (June 25, 2012), at 4 (Staff Answer) (pointing to a number of factors that bear upon consideration of the requested relief but also stating that no final decision to grant a combined license, or initial or renewed operating license should be made “until the NRC has appropriately dispositioned the issues remanded by the court”).

⁷ The petitioners expressly state that they do not seek suspension of ongoing adjudications. Petition at 4. Consistent with our ruling in Callaway, we agree that it is in the public interest for adjudications to proceed, except for contentions associated with waste confidence issues, as discussed infra. See Callaway, CLI-11-5, 74 NRC at __ (slip op. at 25-27). Petitioners also expressly state that they do not seek “any change in the schedules for the NRC Staff’s review of reactor license applications.” Petition at 4. Likewise, we see no need for the Staff to change its review schedules other than as may be necessary to address waste confidence issues.

⁸ See Pa’ina Hawaii, LLC, CLI-10-18, 72 NRC 56, 93 (2010). See generally 10 C.F.R. § 51.73 (requiring a comment period for draft EISs and supplemental EISs). See also Staff Answer at 4 & n.4.

To the extent that the NRC takes action with respect to waste confidence on a case-bycase basis, litigants can challenge such site-specific agency actions in our adjudicatory process.⁹ In this vein, we and the boards are now in receipt of a number of new contentions and associated filings concerning waste confidence.¹⁰

⁹ But see Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974) (“[L]icensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.”).

¹⁰ See Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Proposed Fermi 3 Nuclear Power Plant (July 9, 2012); Motion to Reopen the Record for William States Lee III Units 1 and 2, together with Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at William States Lee III Units 1 and 2 (dated July 9, 2012, filed July 10, 2012 (additional declarations filed July 11, 2012); Beyond Nuclear Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Grand Gulf Unit 1 (July 9, 2012); Beyond Nuclear Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Grand Gulf Unit 3 (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Davis-Besse Nuclear Power Station (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Turkey Point Nuclear Power Plant (July 9, 2012); Citizens Allied for Safe Energy, Inc. Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Turkey Point Nuclear Power Plant (dated July 9, 2012, filed July 10, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Comanche Peak Nuclear Power Plant (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Seabrook Station, Unit 1 (July 9, 2012); San Luis Obispo Mothers for Peace Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at Diablo Canyon Nuclear Power Plant (July 9, 2012); NC WARN’s Motion to Reopen the Record and Admit Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at the Shearon Harris Nuclear Power Plant (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at Levy Nuclear Power Plant (July 9, 2012); Petition for Intervention to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at STP Units 1 & 2 (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at South Texas Units 3 & 4 (July 9, 2012); Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Bellefonte (July 9, 2012); Southern Alliance for Clean Energy’s Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at Watts Bar Unit 2 (July 9, 2012); Intervenor’s Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Callaway Nuclear Power Plant (July 9, 2012); Motion to Reopen the Record for North Anna Unit 3, together with Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at North Anna Unit 3 (dated July 9, 2012, filed July 10, 2012).

The Petition was not filed in the Indian Point, Victoria County, or Limerick dockets. We have, however, received new contentions in those ongoing adjudications. See Hudson River Sloop Clearwater, Inc.’s Motion for Leave to Add a New Contention Based Upon New Information and Petition to Add New Contention (July 9, 2012); State of New York, Riverkeeper, and Clearwater’s Joint Motion for Leave to File a New Contention Concerning the On-Site Storage of Nuclear Waste at Indian Point, together with State of New York, Riverkeeper, Inc., and Hudson River Sloop Clearwater’s Joint Contention NYS-39/RK-EC-9/CW-EC-10 Concerning the On-Site Storage of Nuclear Waste at Indian Point (July 8, 2012); Texans for a Sound Energy Policy’s Motion to Reinstate Contentions TSEP-ENV-17 and TSEP-ENV-18, or in the Alternative for Leave to File a New Contention (July 9, 2012, amended July 10, 2012); Joint Motion to Dismiss Texans for a Sound Energy Policy’s Motion to Reinstate Contentions and for Leave to File a New Contention, and to Establish a Schedule for Future Submissions (July 13, 2012); NRDC’s Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Limerick, together with NRDC’s Waste Confidence Contention (July 9, 2012, errata filed July 9 and 10, 2012). These three cases have been added to the caption of this decision for the purpose of providing guidance on all new contentions that have been filed on this topic. Three licensing boards have issued case management orders relating to the new contentions. See Order (Extending Time to Answer Motion to Admit New Contention) (July 26, 2012) (unpublished) (Callaway license renewal); Order (Granting Joint Motion to Dismiss and Setting Schedule) (July 24, 2012) (unpublished) (Victoria County early site permit); Order (Extending Time to Answer Motion to Admit New Contention) (July 17, 2012) (unpublished) (Bellefonte COL).

In view of the special circumstances of this case, as an exercise of our inherent supervisory authority over adjudications, we direct that these contentions—and any related contentions that may be filed in the near term—be held in abeyance pending our further order.¹¹

¹¹ Should we determine at a future time that case-specific challenges are appropriate for consideration, our normal procedural rules will apply. See Callaway, CLI-11-5, 74 NRC at __ (slip op. at 32-36).

IT IS SO ORDERED.

For the Commission

NRC SEAL

Dated at Rockville, Maryland,
this 7th day of August,²⁰¹²

/RA/

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Annette L. Vietti-Cook
Secretary of the Commission

-jsq

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