Policy Briefs

June 2013
Key Points

  • The Nuclear Regulatory Commission, as part of its regulatory oversight of the nuclear energy industry, is charged with making a broad determination that used nuclear fuel can be safely stored at nuclear energy facilities between the end of a plant’s license term and the time the fuel is shipped offsite for storage or disposal. This is generally referred to as a “waste confidence” finding. Originally issued in 1984, waste confidence findings have been used by the NRC to meet the requirements of the National Environmental Policy Act when licensing nuclear power plants and independent spent fuel storage installations.
  • In 2012, a federal appeals court overturned the NRC’s 2010 waste confidence decision and the associated temporary storage rule. The court directed the NRC to provide further explanation of the potential environmental impacts if the government fails to develop a repository for the disposal of used nuclear fuel. The court also directed the NRC to provide more detailed analyses of the environmental impacts of potential fires and leaks in used fuel storage pools at nuclear power plants.
  • The NRC is developing a generic environmental impact statement to address the court’s ruling and to support the issuance of a new temporary storage rule.  The agency expects to complete this work by August 2014. Until then, the NRC has suspended issuance of reactor licenses and renewals.
  • The nuclear energy industry supports the NRC’s schedule and believes the agency’s use of existing analyses to the extent possible is appropriate in responding to the court’s ruling.

NRC’s Waste Confidence Ruling—What It Means
The NRC’s waste confidence decision has included five findings and a supporting environmental analysis of used fuel storage. The temporary storage rule codified the agency’s conclusions on the safety and environmental impacts of used fuel storage (see 10 C.F.R. § 51.23).

The NRC uses the decision and rule to meet the requirements of the National Environmental Policy Act of 1969, which requires government agencies to evaluate the environmental effects of major federal actions. In the NRC’s case, these actions include licensing and relicensing nuclear energy facilities and used fuel storage facilities at nuclear power plant sites. Importantly, because the NRC considers the environmental impacts of used fuel storage as part of a rulemaking, the issue is not subject to challenge in the individual licensing proceedings the agency conducts. This generic approach avoids litigation ofthe same issue before multiple licensing boards.

The NRC’s most recent update of the waste confidence decision, published in 2010, concluded that used fuel can be stored safely and without significant environmental impact at nuclear reactor sites for at least 60 years beyond the operation of a reactor, and that a permanent repository for fuel disposal will be available.

Appeals Court Overturns NRC’s Finding
In 2012, the U.S. Court of Appeals for the District of Columbia Circuit found that some aspects of the 2010 decision did not satisfy the NRC’s obligations under the National  Environmental Policy Act and overturned the New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). The court directed the NRC to evaluate the potential environmental impacts of a permanent failure by the federal government to provide a repository—despite the Nuclear Waste Policy Act’s requirement and the Department of Energy’s repeated commitment to meet that obligation. The court also directed the NRC to provide more explanation of the environmental impacts of potential leaks and fires in reactor used fuel pools.

The NRC commissioners in September 2012 directed agency staff to develop a generic environmental impact statement that would support an updated waste confidence decision and temporary fuel storage rule. The commissioners asked the staff to focus on addressing the issues identified by the court and to use existing assessments and analyses as much as possible.

The commission also directed the staff to establish a schedule that would allow for publication of a final temporary storage rule and environmental impact statement within 24 months. Until then, the NRC will not issue final reactor licenses, license renewals, or site-specific licenses for used fuel storage capacity. Other licensing activity will continue as normal. Notably, if the operator of a nuclear power plant has filed an application for license renewal within five years of expiration of the existing license, the company may continue to operate the reactor under its existing license until a final decision is reached on its license renewal application.

After public meetings on the generic environmental impact statement, NRC staff in March issued a scoping summary report. Drafts of the statement and temporary storage rule are expected to be published in the Federal Register in late summer or early fall, after which the agency will receive written and oral comments.

Industry Supports NRC Schedule for Waste Confidence Decision
The Nuclear Energy Institute supports the NRC’s 24-month schedule for publishing the final environmental impact statement and rule. NEI believes the schedule allows for a full review of the issues identified by the court as well as a timely resolution of comments on the drafts.

The industry also supports the NRC’s decision to continue its longstanding and court-approved practice of addressing waste confidence as a generic issue that applies to all facilities rather than as a site-specific issue.

The generic environmental impact statement on waste confidence is one aspect of broader environmental analyses the NRC uses in issuing reactor licenses or renewals. As such, the agency should limit the scope of the process to the proposed action. The NRC should not assess the environmental impacts of used fuel storage during the original or renewed term of reactor licenses, as site-specific licensing actions are major federal actions accompanied by their own generic or site-specific environmental analyses.

NEI believes the NRC staff’s assessment of a “no repository” scenario, as required by the court, should adopt or incorporate the “no action alternative” in the EIS prepared for DOE’s Yucca Mountain license application. This scenario appropriately bounds the analysis needed to evaluate potential environmental impacts of a failure of the federal government to provide a repository for used fuel disposal.
The NRC staff also should use existing data and analyses to evaluate the impact of potential used fuel storage pool leaks and fires. The industry’s operational experience and a substantial record of technical studies show that the likelihood of used fuel storage pool fires is very low and diminishes to zero as the used fuel cools.