Yesterday, the Nuclear Regulatory Commission denied multiple petitions to suspend final reactor licensing decisions and motions to admit new contentions related to the Continued Storage rule (formerly known as the Waste Confidence rule). The petitions were filed on multiple reactor dockets in September 2014, arguing that the NRC could not issue reactor licenses until it made explicit findings regarding the safety of spent fuel disposal. Prior versions of the Waste Confidence Decision included specific findings regarding the technical feasibility and availability of disposal in a geologic repository. The Continued Storage rule contains no such findings, even though the Statements of Consideration and accompanying GEIS fully explain the Commission’s “confidence” in safe geologic disposal.
The petitioners argued that, because the findings were not made in the Continued Storage rule, they must be made in individual licensing cases. They claimed that the findings are required by the Atomic Energy Act, the Courts, and Commission precedent. The Commission disagreed with the petitioners on all three bases, concluding that: (1) the AEA does not require any explicit findings regarding safe disposal in order to issue reactor licenses, (2) the landmark waste confidence cases require no such findings (in fact, NRDC v. NRC decided this very issue in favor of the NRC), and (3) the Commission has never interpreted the AEA to require these findings. The Commission pointed out – as we have noted – that the agency’s prior statement that it would not license reactors “if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely” was simply a policy pronouncement, not a legal mandate.
The decision contains a fair amount of discussion on the safety of geologic repository disposal. Although not directly relevant to the legal question at hand, it certainly reflects the Commission’s desire to address the petitioners’ general safety concerns. The Commission reiterates that spent fuel can be stored safely for indefinite time periods, and that disposal in a geologic repository is still feasible (and, in fact, remains the law of the land).
The decision will likely cause some movement in the related cases pending before the D.C. Circuit (consolidated in New York v. NRC). The NRC had previously requested the Court to suspend briefing until the Commission issued a decision on the administrative petitions, since the “safety findings” issue was also raised before the Court. Now that the Commission has rejected the petitions, we expect the petitioners to file a new lawsuit on that decision, which likely would be consolidated with the existing cases. The NRC has requested the Court to withhold a briefing schedule until such time.