By Michael Mariotte

There are 43 dry casks--neither hardened nor secure--sitting outside at the shuttered Connecticut Yankee reactor.

There are 43 dry casks–neither hardened nor secure–sitting outside at the shuttered Connecticut Yankee reactor.

On June 8, 2012, a federal court threw out the Nuclear Regulatory Commission’s “waste confidence” policy, setting into motion a chain of events that still hasn’t stopped rattling the commission and the entire nuclear power industry.

The court ruled that with the shutdown of the proposed Yucca Mountain, Nevada, radioactive waste repository and no new repository on the horizon, the NRC had no basis to say that it had confidence that radioactive waste would always be managed safely.

Since the Atomic Energy Act requires that the NRC have such confidence in order to issue reactor licenses (and license renewals), the NRC was forced to institute a moratorium on issuance of all reactor licenses.

At the time, the NRC staff said a thorough job on a new policy to replace the “waste confidence” policy would take seven years of work. But the NRC Commissioners decided to rush the job and this summer issued a Generic Environmental Impact Statement (GEIS) that it said functions as a substitute for the policy.

There are a couple (well, at least a couple) problems with this approach. First, from a legal perspective, a GEIS is a document normally prepared to meet the requirements of the National Environmental Policy Act (NEPA)–not the Atomic Energy Act (AEA). And on this issue, the two Acts have differing goals and requirements. Simply put, a GEIS cannot be construed as a policy-level finding that the NRC has the requisite confidence that radioactive waste will always be managed safely.

Second, from a technical perspective, the GEIS falls short: its basic argument is that the NRC already has determined that storing high-level radioactive waste in dry casks at reactor sites is safe. But the GEIS takes a giant leap in logic and assumes that means dry cask storage always will be safe–even if into eternity.

If dry casks were licensed and proven safe for millenia, perhaps that position would make sense. But they’re not and indeed always have been seen as a temporary measure to cope with the growing amount of irradiated fuel that have overfilled reactor fuel pools in recent years. Most environmentalists agree that dry cask storage–if hardened to protect against extreme weather events and potential terrorist attacks–is the best temporary measure that can be taken right now. But dry casks as a permanent solution to the radioactive waste problem? Hardly.

Yet ten days ago, on September 19, 2014, the NRC lifted its moratorium on reactor licensing and said the GEIS is sufficient to allow it to do so.

Today, in the first step of a process that almost certainly will end up back in federal court, clean energy advocates filed new contentions in licensing and license renewal cases involving 23 reactors at 14 sites (groups involved in one license renewal case, at Indian Point, intend to file a similar petition later) and a new petition to the NRC Commissioners to reinstate its licensing moratorium.

Diane Curran, the lead attorney for the groups, explained,

“NRC has long acknowledged that before licensing a reactor, the Atomic Energy Act requires it to make Waste Confidence findings that spent fuel can be safely disposed of in a geologic repository at some point in the future. The NRC even said it would not license a reactor if it could not make such a finding. Yet, the NRC has now arbitrarily dropped those findings from its regulations, claiming they are not necessary. The absence of Waste Confidence findings is a significant safety issue that should concern the public because spent fuel poses a serious public health and environmental hazard from which the public and environment can only be protected long-term with a geologic repository. Yet there is no repository in sight today.”

Dr. Mark Cooper, a senior fellow for Economic Analysis at the Institute for Energy and the Environment at Vermont Law School, added that with a real waste confidence policy in effect, the economics of radioactive waste disposal could well force the NRC not to approve new licenses or renewals:

“The costs of managing spent nuclear fuel are likely to be quite large in absolute value, running to hundreds of billions of dollars (in constant 2012 dollars) and in the range of $10 to $20 per MWH ($0.01 to $0.02 per kWh). These costs could be high enough to materially affect energy choices when the costs of new reactors or extension of the operating life of existing reactors are compared with energy efficiency and alternative energy sources. Therefore, if the NRC were to include the costs of spent fuel storage and disposal in its cost-benefit analyses for reactor licensing and re-licensing decisions, these costs easily could tip the balance of the analysis away from licensing or re-licensing the reactors and in favor of other alternatives or the no-action alternative.”

With two new Commissioners just installed, the NRC’s response is perhaps not as predictable as it would have been in the past. Still, it doesn’t seem likely that the NRC Commissioners will voluntarily choose to put the agency out of the reactor licensing business, nor that the new Commissioners will send the issue back to the staff for years more work–even if both the legal and technical arguments would justify that.

So expect to see the issue end up back in federal court, where judges will have to determine whether the NRC’s unwillingness to adopt an actual waste “confidence” policy, instead relying on an assertion that current waste practice is good enough, meets the requirements of the Atomic Energy Act.

The contention filed in each of the proceedings is available here.

The petition filed with the Commissioners is available here.

For background information and technical documents on the waste confidence issue, visit NIRS’ waste confidence page here.

Michael Mariotte

September 20, 2014


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Filed under: Radioactive waste Tagged: Atomic Energy Act, dry casks, waste confidence

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