(CN) – The U.S. Nuclear Regulatory Commission must reconsider where to keep spent nuclear fuel after the government failed to secure a permanent solution, the D.C. Circuit ruled.
It was deficient for the commission to claim that permanent storage will be available “when necessary” because it failed to consider the environmental ramifications, the three-judge panel found.
This is “a possibility that can not be ignored,” Chief Judge David Sentelle wrote for the court.
The commission made the “when necessary” promise in a 2010 Waste Confidence Decision, facing continued political opposition and technical delays at the proposed repository at Yucca Mountain in Nevada.
It had initially determined in 1984 that permanent repository would be ready before 2009. In 1990, it extended the expected date to 2025, and said that on-site storage was safe for at 30 years beyond the operating licenses of existing nuclear power facilities.
The commission’s determinations are required under a 1979 decision by the D.C. Circuit in Minnesota v. NRC.
That decision predicated the creation of new temporary storage pools on a finding by the commission “that an off-site storage solution [for spent fuel] will be available by … the expiration of the plants’ operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates.”
On remand, the commission must also reassess whether spent nuclear fuel rods can be stored in temporary storage pools on the site of nuclear reactors for at least 60 years.
If on-site storage pools would be safe for at least 60 years beyond the existing operating licenses, some “temporary” storage would end up holding spent fuel for nearly 100 years, according to the court.
The commission’s finding failed to properly examine the “future dangers and key consequences” of the pools leaking or catching on fire, the ruling states.
Four states, led by New York, and the Prairie Island Indian Community petitioned the D.C. Circuit to review the commission’s proposal under the National Environmental Policy Act.
Federal agencies are required under the act to prepare an environmental impact statement before taking a “major federal action significantly affecting the quality of the human environment.” An agency can avoid preparing such a statement if it conducts a preliminary environmental assessment and issues a “Finding of No Significant Impact” regarding the proposed action.
The commission argued that the Waste Confidence Decision was not a major federal action because it was issued separately from consideration of any particular application for a new license or renewal. Reviews of such applications are major federal actions, the commission admitted, noting that it prepares site-specific environmental impact statements for each review.
But the court disagreed that the 2010 Waste Confidence Decision could stand alone.
“The WCD makes generic findings that have a preclusive effect in all future licensing decisions -it is a pre-determined ‘stage’ of each licensing decision,” Sentelle wrote.
“It is not only reasonably foreseeable but eminently clear that the WCD will be used to enable licensing decisions based on its findings,” he added, abbreviating Waste Confidence Decision.
The commission said it still would not need an environmental impact statement if the WCD was a major action because of environmental assessments backing the “when necessary” finding and the 60-year position.
Even taking the commission at its word, Sentelle said the WCD failed as an environmental assessment because it did not consider what would happen if the government never found such a repository.
“If the government continues to fail in its quest to establish one, then SNF will seemingly be stored on site at nuclear plants on a permanent basis,” Sentelle wrote, abbreviating spent nuclear fuel. “The commission can and must assess the potential environmental effects of such a failure.”
The commission also failed to support its finding that temporary storage pools could hold spent nuclear fuel for an additional 30 years, according to the court.
To support that finding, the commission relied on the past impact of leaks from the pools and assumed future leaks would have the same impact.
“The commission’s task here was to determine whether the pools could be considered safe for an additional thirty years in the future,” Sentelle wrote. “That past leaks have not been harmful with respect to groundwater does not speak to whether and how future leaks might occur, and what the effects of those leaks might be.”
Fires are also a concern that the commission must address more thoroughly, according to the court.
“Even though the commission engaged in a more substantial analysis of fires than it did of leaks, that analysis is plagued by a failure to examine the consequences of pool fires in addition to the probabilities,” Sentelle wrote.
Unless the commission finds a risk probability of effectively zero, it must account for the consequences of the risk, the court said, adding that commission assessments must be “forward looking.”
“On remand, the Commission will have the opportunity to conduct exactly such an analysis,” Sentelle wrote.