On 19 September 2014 the Nuclear Regulatory Commission (NRC) published its final rule on the Continued Storage of Spent Nuclear Fuel in the Federal Register. The rulemaking affects applicants seeking an operating license, construction permit, combined license, or early site permit for a nuclear power reactor, and applicants seeking an initial, amended, or renewed license for an independent spent fuel storage installation.

Specifically, the rule amends 10 C.F.R. § 51.23 to reflect the NRC's adoption of NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Fuel (2014), as a generic determination of the environmental impacts of continued storage of spent fuel beyond the licensed operating life of a nuclear power reactor. The final rule reflects the NRC’s determination that spent nuclear fuel can be stored onsite without significant environmental effects until ultimate disposal. As a result, the impacts of continued spent fuel storage generally cannot be considered in individual licensing actions, although it is possible for license proceeding participants to seek a waiver of this rule to address particular circumstances. 

The rule has generally been received favorably by the industry. The rule reflects a pragmatic solution to the issue of spent fuel storage and restores legal certainty under the NRC’s licensing regime. Significantly, it resolves the NRC’s reactor licensing moratorium that has been in effect since 2012, allowing the NRC to proceed with issuance of licenses that have been on hold. The moratorium began when the U.S. Court of Appeals for the D.C. Circuit rejected the NRC’s prior decision on waste confidence, finding that the NRC had not adequately addressed the environmental effects of the Department of Energy’s (DOE) failure to establish a spent fuel repository, among other issues. New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). 

While legal challenges to the new rule from environmental and anti-nuclear groups are likely, the rule should survive judicial review because it follows a generic approach to assessing the impacts of continued storage of spent fuel that was endorsed by the D.C. Circuit in its 2012 decision. 

While the rule addresses key licensing issues related to spent fuel storage, other NRC efforts are ongoing. The NRC will continue its extended storage effort to study the technical, regulatory, and policy issues associated with storage of spent fuel for up to 300 years followed by transportation to permanent disposal. The NRC is particularly interested in examining technical issues related to dry cask storage licenses and cask degradation. The extended storage effort is expected to continue through 2020.

It should be noted that the development of a high-level waste repository has effectively been stalled at DOE. It will likely take some prodding by Congress in order for DOE to make any significant progress on this front.