NRC Votes Unanimously To Halt New Nuclear Licensing Amid Storage Debate

[FBaggins]

A little longer than normal, but it's a government release (and presumably free from copywrite issues)

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

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. The court
vacated both the Decision and the Rule, and remanded the case for further proceedings consistent with the court’s opinion.

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.

Waste confidence undergirds certain agency licensing decisions, in particular new reactor licensing and reactor license renewal. 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. This determination extends just to final license issuance; all licensing reviews and proceedings should continue to move forward.

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


http://www.nucleartownhall.com/wp-content/uploads/2012/08/document_gw_02_NRC-vote.pdf

[OKIsItJustMe]

1. Here it is on the NRC web site

http://www.nrc.gov/reading-rm/doc-collections/commission/orders/2012/2012-16cli.pdf

[PamW]

2. Appeal?

As stated above; the real time consuming and "heavy lifting" of the analysis by NRC staff can and will continue; the NRC just won't give final issuance of a license.

Additionally, the ruling by the DC Court appears to me to be out of step with the holding of the US Supreme Court in Baltimore Gas and Electric v. Natural Resources Defense Council 462 US 87:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=462&invol=87

Perhaps the US Supreme Court could take this up in the next term.

PamW

[FBaggins]

3. I'm not sure that there's any need.

The court ruling wasn't that the NRC couldn't have a waste confidence ruling absent Yucca (or similar storage), it was just that they couldn't just assume that some storage would eventually arrive and had to do an assessment of the environmental impact of storage.

They could make a ruling on a case-by-base basis that the on-site storage is acceptable, or they could even make a broad determination that storage pools and dry casks are adequate (and remove any reliance on an imagined future storage site).

They could do either relatively quickly... and there doesn't have to be any rush. As you no doubt know, there aren't any final approvals due for new reactors in the near future, and only a handful of 20-year extension decisions in the next few years. Even those are in little danger of having to shut down because they already have their applications in (in a "timely" manner). So they can continue to operate past the end of their current liscense and just wait for the NRC to get their act together.

On edit - I suppose a few up-rates could be delayed.

On further edit - Up-rates usually don't involve changing fuel load-outs do they? If so, then it wouldn't change the amount of waste being created and thus might not fall under "licenses dependent on waste confidence" - so perhaps they wouldn't be impacted after all.

And yet again - no, I guess that's wrong. Higher-enrichment would probably mean quicker burn-up and thus marginally more waste.

[PamW]

4. Stare decisis = It has already been decided..

FBaggins wrote:

..it was just that they couldn't just assume that some storage would eventually arrive and had to do an assessment of the environmental impact of storage.

Actually, that's exactly what the US Supreme Court ruled in Baltimore Gas and Electric v. Natural Resources Defense Council, 462 US 87 (1983) that the NRC could do!! The Supreme Court stated it is up to the Congress and the NRC to decide the safety of spent fuel and when the US will need a repository.

This decision will be very easy for the NRC to have reversed.

The way Congress wrote the laws for regulation of nuclear power plants; namely the Atomic Energy Act of 1954, for the now defunct AEC, and its successor agency the NRC created in by the Energy Reorganization Act of 1974; Congress intended that the Courts can review the procedures used by the NRC, but the Courts can not substitute their judgment for the NRC and its technical staff in matters of policy and technical decisions.

This Congressional mandate has been affirmed by the US Supreme Court in the decisions:

Baltimore Gas and Electric v. Natural Resources Defense Council, 462 US 87 (1983):

http://laws.findlaw.com/us/462/87.html

Vermont Yankee v. Natural Resources Defense Council 435 US 519 (1978):

http://laws.findlaw.com/us/435/519.html

The NRC has concluded that for the purposes of licensing and NEPA environmental impact statements, that the environmental impact of spent fuel and its storage is ZERO, since at some point determined by Congress and the NRC, nuclear waste will be properly disposed of.

The US Supreme Court held in Baltimore that determination was well within the powers vested by Congress in the NRC, and the Supreme Court stated unanimously:

It is not the task of this Court to determine what decision it would have reached if it had been the NRC. The Court's only task is to determine whether the NRC had considered the relevant factors and articulated a rational connection between the facts found and the choice made. Under this standard, the zero-release assumption, within the context of Table S-3 as a whole, was not arbitrary or capricious.

In Vermont Yankee, also decided without dissent, the US Supreme Court chided the lower Court:

2. The Court of Appeals in these cases has seriously misread or misapplied such statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress, and moreover as to the Court of Appeals' decision with respect to agency action taken after full adjudicatory hearings, it improperly intruded into the agency's decision-making process.

The Supreme Court stated that when Congress has authorized the creation of a specialized regulatory agency in order to regulate a highly technical activity such as nuclear power or aviation; then the Courts are not to substitute their judgment for that of the agency and/or its technical staff.

The DC Court has done just that. It didn't limit itself to a review of the NRC's procedures. The DC Court substituted its judgment for that of the NRC on a highly technical matter - something both Congress and the US Supreme Court have forbidden the lower courts to do. Other Courts have previously disobeyed the US Supreme Court's mandate and their decisions have been swiftly reversed.

A bit of commentary on the matter from the Harvard Environmental Law Review:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.jo...

The Baltimore Gas decision is significant since Justice O'Connor, writing for a unanimous Court, seized the opportunity to caution lower federal courts from becoming overly involved in the technical determinations of expert agencies.

This is a clear case of "stare decisis" which means that "it has already been decided". The problem is that lower court didn't heed the decision. In such cases, that lower court decision is easily reversed and remanded.

It's telling that the NRC told its staff to keep working on the cases while the NRC follows the lower court's ruling for the time being. However, in just a few weeks, the NRC lawyers will be in front of a US Supreme Court Justice and having this decision summarily reversed and overturned.

PamW