Interim storage is possibility
Public interest in the decades-long failure of the federal government to meet its statutory responsibility of providing a permanent geologic repository for spent nuclear fuel (SNF) tends to rise and fall as investigations occur, reports are released, bills are proposed, and court cases concluded. A number of recent actions in Congress and the judiciary either point the best way toward resolving the matter or underline the contentiousness between the fed and other stakeholders. Here’s a summary of four such actions, two in Congress and two by the U.S. Court of Appeals for the D.C. Circuit, which highlight the complexity of both the problem and its potential solutions.
Blue Ribbon report
The Senate Subcommittee on Clean Air and Nuclear Safety recently held a hearing on a consent-based approach to siting nuclear waste storage and management facilities. Consent, in this context, refers to the willingness of a state and a community to allow the construction of an SNF repository in or near that community. Development and implementation of a consent-based approach is the number one recommendation of the Blue Ribbon Commission (BRC) that was formed by the Department of Energy (DOE) to develop a new strategy to manage the back end of the nuclear fuel cycle. BRC’s final report was issued in January 2012. The DOE formed an internal working group that is assessing BRC’s recommendations and developing a strategy.
In the hearing, one co-chairman joined the commissioner of the BRC to once again emphasize that “any attempt to force a top-down, federally mandated solution over the objections of a state or community–far from being more efficient–will take longer, cost more, and have lower odds of ultimate success.” This is precisely the mistake that was made with Yucca Mountain, the Nevada site where the DOE sought to establish a permanent underground SNF vault. In 2010, the DOE withdrew its application to obtain a license for Yucca Mountain, which, said the DOE, was found to be contrary to the public interest.
On the other hand, the BRC officials told the subcommittee that a consent-based approach can provide the flexibility and sustain the public trust and confidence needed to see controversial facilities through to completion. They referred to community cooperation with the Waste Isolation Pilot Plant (WIPP) for the disposal of low-level radioactive waste, which was sited about 26 miles east of Carlsbad, New Mexico. Reference was also made to good progress toward siting SNF repositories in Spain, Finland, and Sweden because of engagement with the prospective communities.
Generous incentives to those communities are an essential element to success, said the BRC officials. BRC’s report noted that besides financial incentives, benefits could include local preferences in hiring and in the purchase of goods and services by the waste management facility, infrastructure investments (such as new roads or rail lines), as well as the opportunity to host collocated research and demonstration facilities or other activities that would generate new employment opportunities and make a positive contribution to the local and regional economy.
Utilities that are now forced to store their SNF on-site generally have no objection to the consent-based approach but are concerned that writing legislation to establish the siting process and resolve other thorny question, including which entity or entities will exercise regulatory control, will be a prolonged and uncertain process. Hence, they recommend, as does the BRC, the prompt development of centralized interim storage facilities wherein SNF from multiple sites, and most especially from plants that have been shut down, can be consolidated and safely maintained until a permanent repository is completed.
BRC’s final report isathttp://brc.gov/sites/default/files/documents/brc_finalreport_jan2012.pdf.
Senate report
In direct response to BRC’s report, a bipartisan bill (S. 2465) was reported out of the Senate Committee on Appropriations to provide the DOE with the authority and funds to implement a pilot program to site, construct, and operate at least one consolidated SNF storage facility.
Under the bill, the DOE would solicit proposals for consolidated storage facilities within 120 days of enactment. In evaluating proposals, the DOE is directed to give priority to novel concepts, including consolidated storage facilities proposed to be collocated with potential permanent repositories. The bill would “encourage” the DOE to consider only those proposals submitted by parties working cooperatively with states, local jurisdictions, or affected Indian tribes, and further instructs the DOE not to expend resources to consider sites that are unlikely to obtain the support of these entities. The bill also notes that the BRC found that one or more consolidated storage facilities is required regardless of the ultimate location of a permanent repository and emphasizes that the DOE currently lacks authority to conduct these activities.
In a letter to Dianne Feinstein (D-CA) and Lamar Alexander (R-TN), the co-sponsors of the bill, the BRC expressed its appreciation for the contribution in “solving one of the nation’s most complex problems.” The letter also expressed hope that congressional leadership can ensure implementation of another of the BRC’s priority recommendations–formation of a “new nuclear waste management organization that is independent from the Department of Energy, has assured access to the nuclear waste fee and fund, and can provide the stability, focus, continuity, and credibility that are essential to get the nation’s nuclear waste program back on track.”
S. 2465 is available at http://thomas.loc.gov/home/thomas.php.
NARUC v. DOE
In this case heard by the D.C. Circuit, the National Association of Regulatory Utility Commissioners (NARUC) claimed that the DOE was obligated by law to cease collecting fees from utilities to cover the cost of long-term disposal of commercial SNF. The 1982 Nuclear Waste Policy Act (NWPA) requires that the DOE annually “evaluate whether collection of the fee will provide sufficient revenues” to offset costs of constructing and maintaining a permanent repository. The petitioners claimed that no such evaluation was provided in DOE’s 2010 determination that there was no basis for suspending or otherwise adjusting the fees, which total about $750 million a year. In the absence of such an evaluation, it was argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contended that the DOE is obliged to suspend the fees.
The DOE defended itself by claiming that NWPA’s only requirement is that the DOE review the fee annually, and the department has complete discretion as to the manner in which costs are identified and evaluated. If, in DOE’s judgment, there is insufficient information available to determine that the fee is either insufficient or excessive, the DOE is not obligated to call for an adjustment. As a fallback, the DOE insisted that Yucca Mountain’s costs can be used as a continuing proxy, thereby justifying DOE’s failure to make any new evaluations of potential costs juxtaposed against revenues.
A three-judge panel of the D.C. Circuit was generally won over by the argument made by the utilities. “There is certainly some discretion given to the Secretary [of Energy] in the manner in which he calculates costs, but the government’s argument suggests the Secretary has no affirmative obligation to conduct the sort of inquiry and analysis done in the past. He may, like an ostrich, put his head in the sand; so long as he is unaware of any information that questions the existing fee structure, he is not obliged to propose an adjustment. That interpretation is farfetched, almost absurd. The Secretary’s alternate justification that he can continue to rely on the FY 2008 assessment’s cost calculations for Yucca Mountain as a proxy, fares no better.”
The court ultimately ordered the DOE to comply with NWPA’s requirement to provide a nuclear waste fee evaluation within 6 months. The court added that it was not appropriate to suspend the fee at this time, as requested by the NARUC.
The D.C. Circuit’s opinion is at http://www.cadc.uscourts.gov/internet/opinions.nsf/4B11622F4FF75FEC85257A100050A681/$file/11-1066-1376508.pdf.
State of New York et al. v. NRC
Four states, an Indian community, and environmental groups challenged the Nuclear Regulatory Commission’s (NRC) 2010 Waste Confidence Decision (WCD), which is a determination of the risks and safety assurances associated the storage of SNF on-site at nuclear power plants. The NRC issued its original WCD in 1984 and, among its findings, indicated that SNF can be stored safety at nuclear plants for at least 30 years, and safe, independent storage will be made available if needed. The 2010 WCD amended the safe on-site storage window from 30 years to 60 years.
The petitioners contended that the 2010 WCD was a major federal action that under the National Environmental Policy Act (NEPA) triggered the requirement that the NRC either prepare an environmental impact statement (EIS) or conduct an environmental assessment (EA) and follow the EA with either an EIS or a finding of no significant impact (FONSI). The petitioners also argued that NRC’s “generic” findings in the WCD were based on past events and failed to identify future risks resulting from leaks and fires. Therefore, they continued, the NRC is required under the NEPA to conduct a site-by-site analysis because the risks of leaks and fires are affected by site-specific factors such as pool configuration, leak detection systems, the nature of SNF stored in the pool, and the location of the pool within the plant.
The NRC argued that because the WCD does not authorize the licensing of any nuclear reactor or storage facility and because a site-specific EIS will be conducted for each facility at the time it seeks licensure, the WCD is not a major federal action. The NRC also contended that the WCD constitutes an EA, and because the EA found no significant environmental impact, an EIS is not required.
The D.C. Circuit held that NRC’s evaluation of the risks of SNF is deficient in two ways. First, in concluding that permanent storage will be available “when necessary,” the NRC did not calculate the environmental effects of failing to secure permanent storage–“a possibility that cannot be ignored,” according to the court. Second, in determining that spent fuel can safely be stored on-site at nuclear plants for 60 years after the expiration of a plant’s license, the NRC failed to properly examine future dangers and key consequences.
In its opinion, the D.C. Circuit did not accede to the petitioner’s request that NRC examine the risks at each site individually. “However, a generic analysis must be forward looking and have enough breadth to support the [NRC’s] conclusions,” stated the court. “Furthermore, as NEPA requires, the [NRC] must conduct a true EA regarding the extension of temporary storage. Such an analysis must, unless it finds the probability of a given risk to be effectively zero, account for the consequences of each risk.” Accordingly, the court vacated the 2010 WCD and remanded it for further proceedings.
The D.C. Circuit’s opinion is at http://www.cadc.uscourts.gov/internet/opinions.nsf/57ACA94A8FFAD8AF85257A1700502AA4/$file/11-1045-1377720.pdf.
William C. Schillaci
BSchillaci@blr.com