Nuclear Waste Storage Rules Thrown Out by U.S. Court

The U.S. Nuclear Regulatory Commission failed to fully evaluate risks associated with its regulations on the storage of spent nuclear fuel and must draft new ones, an appeals court ruled.

The commission’s conclusion that permanent storage will be available in the future when it’s needed didn’t account for how its absence could affect the environment now, the U.S. Court of Appeals in Washington said today in deciding a lawsuit brought by New York state. The commission also failed to fully assess the dangers of storing spent fuel onsite for 60 years after a nuclear plant’s license expires, the court said.

“The commission’s evaluation of the risks of spent nuclear fuel is deficient,” Chief Judge David Sentelle wrote for the three-judge panel. Spent fuel “poses a dangerous long-term health and environmental risk.”

Spent nuclear fuel refers to fuel rods that, after four to six years of use in a reactor, are no longer efficient at producing energy, according to the court filing. The rods, which still emit dangerous radiation, are transferred to deep-water pools for cooling. They may then be sent to dry storage in concrete and steel casks at the site of the reactor.

Onsite storage is the industry’s only option “due to the government’s failure to establish a final resting place,” Sentelle said.

Nevada Repository

The ruling bolsters the case for a controversial central waste repository in Nevada, and could provide a new argument against relicensing nuclear plants for opponents of atomic energy, Margaret Harding, an independent nuclear industry consultant, said in a telephone interview.

“It doesn’t directly put Yucca Mountain back on the table, but it puts more pressure on the federal government to move forward with permanent storage,” Harding said.

Activists seeking to block nuclear plants from gaining 20-year license extensions may cite the decision in questioning whether the power generators can adequately and safely store waste, Harding said.

“This is a landmark victory for New Yorkers, and people across the country living in the shadows of nuclear power plants,” New York’s Attorney General Eric Schneiderman said in a statement. “We fought back against the Nuclear Regulatory Commission’s rubber stamp decision to allow radioactive waste at our nation’s nuclear power plants to be stored for decades after they’re shut down -- and we won.”

Legal Ramifications

Dale Klein, a former NRC chairman, said while the decision helps make the case for central waste storage, the legal ramifications of the ruling are limited.

“I don’t think it changes that much,” Klein said in a phone interview. “What caught the NRC was a procedural issue: if they had opened up the public comment period, this could have been avoided.”

A trade group representing nuclear power plant owners and operators urged the commission to quickly address the court’s concerns.

“We are disappointed by the court’s decision as we believe that the NRC supported its conclusions in the waste confidence decision,” Ellen Ginsberg, vice-president and general counsel of the Nuclear Energy Institute, an industry trade group, said in a statement.

Holly Harrington, a spokeswoman for the commission, said in an e-mailed statement that the NRC’s general counsel is reviewing the decision.

Metric Tons

The U.S. nuclear power industry’s 104 reactors produce about 2,000 to 2,300 metric tons of waste a year, all of which is stored onsite, according to the Nuclear Energy Institute.

While debate has simmered in Washington for four decades over how to dispose of spent fuel, the industry has generated about 67,500 metric tons of high-level radioactive waste stored at about 75 closed and operating nuclear plant sites, according to the Nuclear Energy Institute.

Republicans in Congress want the Obama administration to revive a waste facility in Yucca Mountain that was built, but never licensed, after receiving about $15 billion in industry and government funding.

The administration scrapped the Nevada repository, about 100 miles (161 kilometers) northwest of Las Vegas, because of opposition in the state led by Senate Majority Leader Harry Reid, a Democrat.

Storage Prospects

With no other prospects for long-term storage, the NRC began drafting rules to ensure fuel could continue to be stored safely onsite at nuclear plants.

Concerns about the accumulating waste was heightened last year after a spent-fuel pool at one unit of the crippled Fukushima Dai-Ichi nuclear station in Japan ignited when water boiled away amid a power failure.

A commission created by President Barack Obama in 2010 bolstered the case for Yucca Mountain by recommending in January that the government lay the groundwork for central storage and revamp a $27 billion fund to pay for nuclear waste disposal.

As for onsite storage, the NRC’s analysis of the environmental impact was “conducted in generic fashion,” Sentelle wrote. The petitioners, which besides New York include New Jersey, Vermont and Connecticut, as well as the Prairie Island Indian community and environmental groups, argued environmental effects should have been studied on a site-by-site basis.

It’s unclear whether a change in leadership at NRC will aid efforts to resolve the issue. Gregory Jaczko, who resigned as commission chairman on May 21, had directed the agency to wind down its work on the Yucca project.

Allison Macfarlane, a geologist and expert on atomic waste selected as Jaczko’s successor, has questioned the suitability of Yucca Mountain as a proposed dump site.

The case is New York v. Nuclear Regulatory Commission, 11-1045, U.S. Court of Appeals for the District of Columbia Circuit (Washington).

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