D.C. Circuit hears oral arguments on long-term on-site spent fuel storage

The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments Feb. 22 on whether the Nuclear Regulatory Commission (NRC) has done enough study of long-term storage of spent nuclear fuel at commercial nuclear reactors for decades.

This latest nuclear litigation to be heard before a three-judge panel at the D.C. Circuit is an outgrowth of the so-called “waste confidence” findings by the D.C. Circuit in 2012. That case forced NRC to suspend issuance of new permits until it did an evaluation of long-term impacts of on-site storage.

Attorneys from the Natural Resources Defense Council (NRDC) along with the State of New York and various Native American tribes argued that NRC has not done enough to comply with the prior legal mandate.  This should be not be a “one size fits all” solution, said attorney Andrew Amend, who appeared on behalf of New York and the tribal governments.

Amend said NRC has drafted its “generic” environmental impact statement, which concluded that nuclear waste from power reactors could be stored on-site for 60 years.

NRC relied too heavily on fuel storage at plants like the Dominion (NYSE:D) Surry station in rural Virginia. Some plants, like the Entergy (NYSE:ETR) Indian Point units are located in more urban areas with heavy population density.

Unless they are rejected by the appeals court, the NRC generic findings will be a de facto environmental impact statement for nuclear plants nationwide. Amend and NRDC attorney Geoffrey Fettus argued that NRC has not met its obligations under the National Environmental Policy Act (NEPA).

Amend said that NRC failed to do a proper analysis on negatives consequences such as leaks or fires, because the chances of such things happening are greater than “zero.”  

“If there is a non-zero chance of this happening … they have to at least consider what the consequences might be,” Amend said. “Another leak was just found at the Indian Point plant, so this is not hypothetical stuff,” Amend said.

NRC Andrew Averbach said that the NRC findings don’t amount to a “licensing” decision. NRC, under NEPA, is always compelled to consider new and significant information.

NRDC attorney Geoffrey Fettus countered, saying that “as far as I know, there has never been a wavier petition granted.”

But Nuclear Energy Institute (NEI) attorney David Repka suggested that criticism of NRC handling of long-term on-site storage is overblown.

NRC has indeed “taken a hard look” at on-site storage issues, Repka said. NRC devoted much study to the likelihood of leaks and serious fires, the NEI attorney said.

NRC is also well aware of the population around the Indian Point nuclear units, the industry lawyer added.

The case, 14-1210 State of New York v. NRC, was heard by U.S. Appeals Court Judges Brett Michael Kavanaugh, Harry Edwards, and David Sentelle.

An audio webcast of the oral arguments is available on the D.C. Circuit’s website.

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 wayneb@pennwell.com.