D.C. Circuit upholds NRC handling of spent fuel storage at reactor sites

The U.S. Court of Appeals for the District of Columbia Circuit on June 3 rejected a legal challenge brought by critics of Nuclear Regulatory Commission (NRC) policy surrounding continued storage of spent fuel at nuclear reactor sites.

A Native American community, and numerous environmental groups had filed petitions for review of a rule and generic environmental impact statement (EIS) promulgated by the NRC concerning the continued, and possibly indefinite, storage of spent fuel from nuclear power plants.

Petitioners in the case, State of New York et al v. NRC, argued that the NRC has failed to comply with its obligations under the National Environmental Policy Act (NEPA).

“Specifically, the petitioners contend that the NRC did not consider alternatives to and mitigation measures for the continued storage of spent nuclear fuel, miscalculated the impacts of continued storage, and relied on unreasonable assumptions in its environmental impact statement,” noted the three-judge panel for the D.C. Circuit.

“Because we hold that the NRC did not engage in arbitrary or capricious decision-making, we deny the petitions for review,” the court held.

The case, No. 14-1210, was argued before the D.C. Circuit on Feb. 22.

The litigation is the latest in a number of cases that have come before the appeals court over the years that relate to spent fuel storage – as well as the U.S. Department of Energy (DOE)’s failure to provide a central waste repository in Yucca Mountain, Nevada, or elsewhere, for the spent fuel.

After the Obama administration took office, the DOE withdrew its application for a waste facility at Yucca Mountain in 2010. So “there is not even a prospective site for a repository,” the court noted.

Absent a permanent repository, the majority of spent nuclear fuel remains stored on-site at reactors. Spent fuel is typically held in an on-site “spent fuel pool” for at least five years of cooling before being moved to another on-site facility, a steel and concrete container known as a “dry cask.”

After an earlier ruling on NRC’s so-called “waste confidence” policy, NRC prepared a generic EIS and a “Continued Storage Rule” to codify its analysis of continued on-site storage of nuclear fuel.

“But unlike in New York I, the NRC has done exactly what NEPA requires for major federal actions; it prepared an environmental impact statement,” the D.C. Circuit held in its June 3 decision.

“Furthermore, contrary to the petitioners’ claims, the GEIS discusses mitigation measures for pool fires,” the court added. The NRC also evaluated measures such as the expedited transfer of spent fuel to dry storage casks, the court said.

The D.C. Circuit also rejected the Natural Resources Defense Council (NRDC) argument that the regulator had failed to properly consider the likelihood that a permanent repository might not be developed. “The agency provided a qualitative analysis of the likelihood of failure to site a repository,” the court said.

“We acknowledge the political discord surrounding our nation’s evolving nuclear energy policy,” the appeals court said.

“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency,” the appeals court noted.

“To the extent that the petitioners disagree with the NRC’s current policy for the continued storage of spent nuclear fuel, their concerns should be directed to Congress,” the court concluded.

Senior Circuit Judge David Sentelle wrote the court’s opinion. The two other judges on the panel were Judge Brett Kavanaugh and Judge Harry Edwards.

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.