On August 7, 2012, the U.S. Nuclear Regulatory Commission issued a decision on several petitions filed before the agency to suspend final decisions in reactor licensing cases. The petitions were based on the recent ruling by the D.C. Circuit Court of Appeals vacating the NRC’s Waste Confidence Decision and Temporary Storage Rule and remanding the issue back to the agency for further environmental reviews. The Commission granted the petitions in part by agreeing not to issue final licenses that depend upon the Waste Confidence Decision or Temporary Storage Rule (primarily initial licenses and renewed licenses) until the Court’s remand is appropriately addressed. But importantly, the Commission explicitly directed all licensing reviews and adjudications to move forward while the agency assesses the options for resolving the remanded issues.
Despite some confusion and commentary in the media, the Commission’s approach is not unexpected. Absent an appeal of the Court’s decision, the Commission must comply with the remand order, and with the National Environmental Policy Act as interpreted by the Court. While the NRC is still evaluating its ultimate response to the Court’s ruling (e.g., revised rulemaking versus case-specific resolution of the issues), petitions to suspend final licensing decisions were filed in nearly every ongoing reactor proceeding. The Commission needed to provide some degree of certainty with respect to the possible wide-ranging effects of the Court’s decision. The Commission order essentially dictates that Licensing Boards in individual cases will not take up the remanded issues until further direction.
Going forward, the true test will be whether licensing proceedings will actually move forward as directed. The Commission contemplates that reviews and hearings on other issues go forward. Presumably, notwithstanding Waste Confidence, the NRC Staff will need to complete environmental and safety reviews and issue the review documents on schedule. A delayed Final Environmental Impact Statement (FEIS), for example, could significantly postpone the start of the adjudicatory hearing and other subsequent milestones in the licensing process. These sorts of delays would be unnecessary since an FEIS can later be supplemented by a revised Waste Confidence rule, supplemental environmental review document, or adjudicatory record. It is difficult to imagine that this is what the Commission envisioned in its decision last week.