Several states, environmental groups, and a Native American Community have sued the NRC, once again, over the agency’s generic assessment of the environmental impacts of storing spent nuclear fuel (pending permanent disposal) after the life of an operating reactor. The new lawsuits, consolidated intoNew York v. NRC, were filed in the U.S. Court of Appeals for the D.C. Circuit. In 2012, that Court vacated the NRC’s prior Waste Confidence Rule after finding three specific deficiencies under the National Environmental Policy Act. As a result, the NRC promulgated the new Continued Storage Rule and Generic Environmental Impact Statement, which became effective in October. 

Among the issues in the lawsuit will be the petitioners’ claims that the Continued Storage Rule violates the Atomic Energy Act by not making explicit findings regarding the safety of spent fuel disposal. (One of the petitioners has also made this argument in a petition to the NRC to, in effect, suspend the final rule.) They argue that the AEA, NRC interpretations, and judicial precedent require that before an individual reactor license may be issued, the NRC must explicitly find that spent fuel generated by that reactor can be safely disposed of in a repository. However, the NRC and the industry argue that there is no such requirement for AEA safety findings regarding repository disposal in connection with reactor licensing. The only safety finding of the type required by statute is with respect to the licensing of therepository itself. At least one Court of Appeals has previously addressed this issue squarely, holding that no such disposal safety findings are necessary for reactor licensing (Natural Resources Defense Council v. NRC, 582 F.2d 166 (2d Cir. 1978)). Nor has the NRC itself taken any position that affirmative safety findings on repository disposal are required. Instead, the NRC has consistently made generic policy statements regarding the technical feasibility and the anticipated available capacity of a geologic repository. The NRC continues to reaffirm these statements in the Continued Storage GEIS.

The petitioners also dispute the NRC’s analysis of the environmental impacts of an “indefinite storage” or “no repository” scenario. The D.C. Circuit specifically found that the agency had failed to adequately assess the impacts of the failure to establish a permanent repository (a scenario the Court apparently found reasonably foreseeable even though it also held that the Yucca Mountain licensing process is statutorily mandated by the Nuclear Waste Policy Act). In the Continued Storage GEIS, the NRC assessed the indefinite storage scenario by assuming that institutional controls would continue during that timeframe. The GEIS explains the NRC’s reliance on institutional controls and why it considers that to be a reasonable assumption under NEPA. 

These are just two of the issues sure to be litigated. Others will certainly include the appropriateness of a generic assessment (as opposed to a site-specific review), and whether the agency should have considered a licensing moratorium as an alternative to the Continued Storage Rule. Meanwhile, the NRC has resumed issuing licenses – which it had suspended pending the Continued Storage rulemaking – and is on track to conduct the final stages of the licensing process for the Watts Bar 2 and Fermi 3 reactor applications early next year.