Last Friday, the commissioners of the Nuclear Regulatory Commission (NRC) held an unusual meeting on the Waste Confidence rule. The meeting was unusual in its timing; the public comment period on the proposed rule closed in December 2013, but the NRC staff has not yet provided the Commission with a draft final rule. The goal of the meeting (as stated by Chairman Macfarlane at the outset) was to understand comments already received by the agency rather than discuss the staff’s response to comments in its proposal for a final rule. The Commission normally does not hold a meeting at this step of the rulemaking process. Also unusual was the lack of in-depth questioning by commissioners, some of whom noted that many ongoing licensing hearings have pending contentions on Waste Confidence – implying that the Commission could not delve into those issues with meeting participants who are also parties to the proceedings. 

The participants included representatives from the nuclear industry, states, tribal governments, and non-governmental organizations. The presentations focused on major themes from the public comments, including the definition of the proposed action, the analysis of the “no repository” scenario, and the need for site-specific analyses. The industry supported the NRC’s definition of the proposed action as a rulemaking as opposed to a specific licensing action. But NGOs and others view the proposed action as a licensing action on the theory that the rule cannot be segregated from licensing since it enables licensing decisions. The definition of the proposed action could be significant to the extent it dictates the assessment of impacts or reasonable alternatives considered.

The presenters differed on the sufficiency of the NRC’s “no repository” analysis, specifically on the staff’s assumption that institutional controls will continue to exist during this indefinite time period. The industry endorsed the adequacy of the agency’s analysis on this point, but also noted that the NRC could incorporate by reference the Department of Energy’s (DOE) environmental impact statement (EIS) for the Yucca Mountain “no action alternative,” which assessed the no repository scenario without relying on institutional controls after 100 years. This would be a relatively simple – and conservative – way of ensuring a fulsome analysis of this issue, which was remanded by the D.C. Circuit Court of Appeals. On the other hand, NGOs argued that the NRC must evaluate the “no repository” scenario without relying on institutional controls, and that the agency cannot simply reference DOE’s EIS. This issue generated questions by the commissioners, some of whom seemed to indicate skepticism for assuming the existence of institutional controls during the indefinite storage scenario.

Lastly, regarding the need for site-specific analyses, the state representative in particular asserted that the NRC’s analysis was not sufficiently conservative to account for the impacts at reactors near urban locations. The State of New York posited that the NRC should either conduct site-specific analyses or use the Indian Point plant as the bounding, “reference” site. But as noted in the D.C. Circuit’s decision, there is no legal infirmity in relying on a “comprehensive general analysis.” And the low probability of a spent fuel fire, particularly in an extended storage scenario after the fuel is cool and in dry storage, is not unique to any site – including Indian Point.

The final rule is scheduled to be published in early October 2014.