D.C. Circuit sides with state AGs over nuclear storage rule

Jessica M. Karmasek Jun. 11, 2012, 11:15am




WASHINGTON (Legal Newsline) - A federal appeals court last week upheld a challenge filed by four state attorneys general to a federal rule that allows spent nuclear fuel to be stored at reactor sites for up to 60 years after the plants shut down.

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit said a December 2010 change by the Nuclear Regulatory Commission to its Waste Confidence Decision "constitutes a major federal action necessitating either an environmental impact statement or finding of no significant environmental impact" as required by the National Environmental Policy Act of 1969.

The court also found that the commission's evaluation of the risks of spent nuclear fuel is "deficient" -- in two ways.

"First, in concluding that permanent storage will be available 'when necessary,' the commission did not calculate the environmental effects of failing to secure permanent storage -- a possibility that cannot be ignored," Chief Judge David Sentelle wrote for the D.C. Circuit.

"Second, in determining that spent fuel can safely be stored on site at nuclear plants for 60 years after the expiration of a plant's license, the commission failed to properly examine future dangers and key consequences."

The court, in its 21-page ruling, vacated the commission's orders.

Prior to the 2010 change by the NRC, spent fuel could be stored on site for up to 30 years after a reactor closed.

"This is a critical decision for Connecticut and other states with nuclear power plants," Connecticut Attorney General George Jepsen said in a statement Friday.

"It means the federal regulators must make a full and comprehensive analysis of the potential environmental impact of before allowing additional decades of storage of high-level nuclear waste at reactor sites."

Jepsen, New York Attorney General Eric Schneiderman, New Jersey Attorney General Jeffrey Chiesa, Vermont Attorney General William Sorrell, along with an Indian community and a number of environmental groups, petitioned the court to review the federal rule.

The states, in particular, argued that any leaks from spent fuel storage pools or dry storage facilities could have significant impacts on groundwater and land use and should have been considered before the storage period was extended.

Both the Indian Point reactor in New York and the Vermont Yankee reactor have had leaks of small amounts of nuclear material into the groundwater.

Connecticut, meanwhile, has two operating nuclear plants, Millstone 2 and Millstone 3 in Waterford, and two decommissioned nuclear plants, Millstone 1 in Waterford and Connecticut Yankee in Haddam.

The spent fuel from those plants remains on site awaiting a permanent federal storage facility.

"This is a landmark victory for New Yorkers, and people across the country living in the shadows of nuclear power plants," said Schneiderman, whose office led the litigation team.

"We fought back against the Nuclear Regulatory Commission's rubber stamp decision to allow radioactive waste at our nation's nuclear power plants to be stored for decades after they're shut down -- and we won," he said Friday.

"The court was clear in agreeing with my office that this type of NRC 'business as usual' is simply unacceptable. The NRC cannot turn its back on federal law and ignore its obligation to thoroughly review the environmental, public health and safety risks related to the creation of long-term nuclear waste storage sites within our communities."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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