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Federal Court Throws Out NRC Rule on Nuclear Waste Storage

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Contact: Tina Posterli, 516-526-9371, tposterli@riverkeeper.org

Riverkeeper Victory Critical for Indian Point Relicensing Battle

Ossining, NY – June 11, 2012 – In a landmark ruling, the Circuit Court of Appeals for the D.C. Circuit in Washington threw out the Nuclear Regulatory Commission’s (NRC) “Waste Confidence Decision,” an agency rule that has allowed the NRC to relicense aging nuclear reactors without having to address the risks of storing highly radioactive spent fuel onsite until a permanent disposal solution is developed.

This rule has previously prevented Riverkeeper from raising safety or environmental concerns about spent fuel storage at Indian Point in the relicensing proceeding, despite the fact that the packed spent fuel pools are prone to leaking radioactive water into the Hudson River, and present a major safety risk to the twenty million people living within fifty miles of Indian Point.

Riverkeeper is a co-petitioner in the case, along with the Natural Resources Defense Council (NRDC) and the Blue Ridge Environmental Defense League (BREDL). The states’ challenge to the rule was led by the New York State Attorney General’s office, and joined by the States Attorneys General of New Jersey, Connecticut, and Vermont. Riverkeeper was represented in the case by Diane Curran of Harmon, Curran, Spielberg and Eisenberg and Geoff Fettus of NRDC.

“The court’s ruling clearly shows that the NRC is ‘the Emperor with no clothes’ when it comes to safely storing nuclear waste at Indian Point,” said Phillip Musegaas, Hudson River Program Director at Riverkeeper. “The NRC must now address the risks and impacts of Indian Point’s 1500 tons of nuclear waste before making any decision whether to relicense this old, dangerous, unnecessary plant.”

The unanimous decision by a three judge panel to “vacate” the rule has two critical ramifications for the relicensing of Indian Point:

  • It means that the NRC must now prepare an Environmental Impact Study that fully examines the risks and impacts of storing toxic nuclear waste at all reactor sites in the country – under federal environmental law, this will require NRC to look at alternative methods of storage, including moving spent fuel out of the overfilled, dangerous pools and into smaller dry casks. This would dramatically reduce the risk of a pool fire that would release catastrophic amounts of radiation into the atmosphere.
  • The court found that the invalid rule has been a key element of the NRC’s efforts to relicense the country’s aging fleet of reactors. Without the rule in place, at a minimum the NRC cannot renew Indian Point’s license until it completes this review.

For decades the NRC has licensed and re-licensed reactors without having a plan for how to safely store and dispose of the highly radioactive spent fuel they produce. Even worse, the NRC’s regulations have specifically barred the public from raising any safety or environmental concerns about spent fuel in any licensing proceedings. Now, for the first time, the NRC must consider the environmental effects and costs if a repository is never found, i.e., what will be the costs and risks of storing spent fuel at reactor sites for decades, or even hundreds of years? How will the NRC make sure that leaks from spent fuel pools will not continue and even increase, as Indian Point and other old plants continue to degrade?

The Court’s reasons for vacating the rule
After decades of failure to site a repository, including twenty years of working on the now-abandoned Yucca Mountain repository, the NRC “has no long-term plan other than hoping for a geologic repository.” Therefore it is possible that spent fuel will be stored at reactor sites “on a permanent basis.” As a result, the NRC must examine the environmental consequences of failing to establish a repository when one is needed.

The Court also rejected NRC’s decision minimizing the risks of leaks or fires in spent fuel stored in reactor pools during future storage, because the NRC had not demonstrated that these future impacts would be insignificant. The Court found that past experience with pool leaks was not an adequate predictor of future experience. It also concluded that the NRC had not shown that catastrophic pool fires were so unlikely that their risks could be ignored.

State of NY v. NRC Decision 6-8-12

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