Appeals court deals blow to NRC’s ‘waste confidence’ decision

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit has ruled that the Nuclear Regulatory Commission (NRC) has not done enough groundwork to conclude that spent nuclear fuel can be stored on-site at power plants for up to six decades after the plant stops operation.

The appeals court issued the order June 8 in a case involving NRC’s so-called “Waste Confidence Decision[WCD].” The litigation was brought by four states, a tribal community and several environmental groups.

“We hold that the rulemaking at issue here constitutes a major federal action necessitating either an environmental impact statement [EIS] or a finding of no significant environmental impact [FONSI],” the appeals court said.

The appeals court faulted NRC for saying only that a permanent storage facility would be available “when necessary.” It also faulted NRC’s finding that spent fuel can be safely stored on-site at nuclear plants for 60 years after expiration of a plant’s license. The court said NRC had not done enough analysis.

“We agree with petitioners that the WCD rulemaking is a major federal action requiring either a FONSI or an EIS. The Commission’s contrary argument treating the WCD as separate from the individual licensing decisions it enables fails under controlling precedent,” the appeals court said.

The appeals court said it shared the petitioners’ “considerable skepticism” as to whether a permanent storage facility can be built in the foreseeable future due to societal and political barriers.

But the court said it was not making its decision on that basis. “Instead, we hold the WCD is defective on far simpler grounds: As we have determined, the WCD is a major federal action because it is used to allow the licensing of nuclear plants,” the appeals court panel said.

In concluding that spent fuel can safely be stored in on-site storage pools for a period of 60 years after the end of a plant’s life, instead of 30, the NRC did “what it purports to be an EA,” which found that extending the time for storage would have no significant environmental impact, the appeals court said.

But this analysis was done in “generic fashion” and failed to do any site-by-site analysis of specific nuclear plants, the court added. “Nonetheless, whether the analysis is generic or site-by-site, it must be thorough and comprehensive,” the court said. The panel noted in its opinion that NRC “failed to conduct a thorough enough analysis to merit our deference.”

The Natural Resources Defense Council (NRDC) called the decision a “game changer” while the Nuclear Energy Institute (NEI) downplayed it. NEI said NRC will have to perform additional analysis upon remand.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at