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A federal appeals court in Washington, D.C., shot down a petition filed by Vermont and other states that challenged the Nuclear Regulatory Commission's rules and regulations on spent fuel storage.

BRATTLEBORO >> If the states and the National Resources Defense Council are unhappy with regulations promulgated by the Nuclear Regulatory commission, then take it up with Congress.

That was the conclusion of the Court of Appeals for the District of Columbia to an appeal lodged by several attorneys general, environmental organizations and one Native American community about the NRC's spent fuel handling and storage regulations.

"We acknowledge the political discord surrounding our nation's evolving nuclear energy policy," wrote the court. "But the role of Article III courts in this debate is circumscribed." 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, stated the decision, rendered on June 3. "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 appeal contended that the NRC utilized "several unreasonable assumptions," including that spent nuclear fuel will be removed from spent-fuel pools within 60 years of reactor decommissioning; that after the 60-year period, spent fuel will be stored in dry casks that are replaced every 100 years; and that institutional controls over spent nuclear fuel will exist into perpetuity.

"We hold that none of these assumptions is so unreasonable as to render the NRC's decision-making arbitrary or capricious," noted the court. "We therefore deny the petitions for review on this issue."

The NRC deserves "deference" in its decisions, wrote the court, because "An agency does not engage in arbitrary or capricious decision-making by making 'predictive judgment(s)' or even by relying on '(i)ncomplete data.'"


The appeal was filed by the NRDC and attorneys general from New York, Massachusetts and Vermont, with amicus briefs filed by the California State Energy Resources Conservation and Development Commission, the Sierra Club and one "Native American community." It called for a review of an NRC rule and generic environmental impact statement concerning the continued, and possibly indefinite, storage of spent fuel from nuclear power plants in the United States.

The petitioners argued the NRC has failed to comply with its obligations under the National Environmental Policy Act, in 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.

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

While the court noted the U.S. has committed to the development of nuclear energy, "(T)o-date it lacks a permanent solution for one consequence of that commitment — the generation of spent nuclear fuel, which 'poses a dangerous, long-term health and environmental risk.'" This matter has been before the Columbia court in the past, noting "every foreseeable approach to the nuclear fuel cycle still requires a means of disposal that assures the very long-term isolation of radioactive wastes from the environment. ... virtually all spent fuel remain(s) radioactive for thousands of years ..."

While Congress passed the Nuclear Waste Policy Act of 1982 to establish a location for a long-term repository, and the Department of Energy had selected and invested billions of dollars in Yucca Mountain in Nevada, "a change in the presidential administration brought with it a shift in nuclear energy policy, and in 2010 the Department of Energy withdrew its application."

At this time, noted the court, "there is not even a prospective site for a repository, let alone progress toward the actual construction of one."

Because of this indecision, the majority of spent nuclear fuel remains stored on-site at reactors.

At Vermont Yankee nuclear power plant in Vernon, since its closure in December 2014, all of the fuel has been removed from the plant's reactor and what has not already been moved to dry casks is being stored in the spent fuel pool. Storing all the spent fuel produced at Vermont Yankee will require 58 dry casks; 13 are already loaded and are on the original pad at the plant. There are 2,996 spent fuel assemblies in the spent fuel pool and 884 spent fuel assemblies loaded in 13 casks. The current pad dimension is 76 feet by 132 feet. The second proposed pad dimension is 93 feet by 76 feet. Entergy needs the certificate of public good from the Vermont Public Service Board to begin construction of the second storage pad in early 2016. If the certificate is issued, Entergy hopes to complete construction of the second pad in 2017. According to Entergy, it will take six months to a year to prepare the second pad.

The NRC has relied upon what is called the "Waste Confidence Decision" to assess the risk of on-site storage of spent nuclear fuel and the likelihood that a permanent off-site storage solution will be available. In 2010, the circuit court invalidated an update to the rule, which included an environmental assessment with a finding of no significant impact. The court ruled that the NRC's analysis was deficient because: the Waste Confidence Decision did not examine the environmental effects of failing to establish a repository; the NRC failed to properly examine the risk of pool leaks in a forward-looking fashion; and the NRC failed to examine the potential consequences of pool fires in addition to the probabilities that such fires might occur.

In response, the NRC prepared a Generic Environmental Impact Statement and proposed a Continued Storage Rule to standardize its analysis of the effects of continued on-site storage of spent nuclear fuel. The rule incorporates the findings of the GEIS into all future reactor licensing proceedings and precludes reconsideration of those findings absent a waiver.

The petitioners requested that the court vacate the rule and the GEIS and send it back to the NRC for further proceedings. Despite the "panoply of challenges" raised by the petitioners including a non-site-specific analysei, wrote the court, "the NRC has done exactly what NEPA requires for major federal actions; it prepared an environmental impact statement. So long as that environmental impact statement complies with NEPA, and we hold that it does, no more is required."

The court also concluded the GEIS "thoroughly considers essentially common risks to reactor sites," even though the GEIS is based on two reactor sites — one in Virginia and one near Lake Michigan. "According to the States, neither plant captures the full range of risks across the country because the population density near the Surry plant is 300 people per square mile, and the density near the Lake Michigan plant is 860 people per square mile. ... (A)ccording deference to the NRC's technical decision-making, ... we find nothing in the GEIS to undermine the NRC's conclusion that the identified risks are 'essentially common' to all reactor sites."

In addition, noted the court, the NRC has provided "a qualitative analysis of the likelihood of failure to site a repository ... and considered the reasonably foreseeable impacts of that scenario."

Bob Audette can be contacted at 802-254-2311, ext. 160.