Nuclear Law Committee Newsletter
Vol. 6, No. 1
MESSAGE FROM THE COMMITTEE CHAIR
Tison Campbell
Welcome to the first issue of this membership year.
This year, the Committee is going to focus on two
themes: waste and decommissioning. To start the
Committee’s discussion of waste, this issue of the
newsletter includes articles from experienced
practitioners on spent nuclear fuel, high-level waste,
and low-level waste. The Committee is also
planning to hold a program based on this issue in the
near future. We will post more information about this
educational opportunity to the Committee’s webpage
and listserv.
As always, we’re looking for Committee members
who are interested in becoming more involved in the
Committee’s work. Please contact me, or any
representative of the leadership team, for more
information on how to contribute to the Committee’s
work.
Tison Campbell is Lead Counsel for Waste
Confidence at the NRC. The views expressed in
this article are solely those of the author and do
not necessarily represent the positions of the U.S.
Nuclear Regulatory Commission.
April 2014
THE SEARCH FOR RETRIEVAL: A HISTORY OF
NUCLEAR WASTE LEGISLATION
Samuel Brinton
From the salt mines of Kansas to the Blue Ribbon
Commission on America’s Nuclear Future, the lack
of a centralized and stable national nuclear waste
policy framework continues to create uncertainty
regarding the future of nuclear energy. The amount
of high-level waste generated by nuclear power
plants grows by 12,000 metric tons each and every
year—equivalent in size to 100 double-decker
buses. Spent fuel pools are increasingly reaching
capacity with dry cask storage at independent spent
fuel storage installations becoming an industry
standard. Although the challenge of nuclear waste
has been considered since the 1950s, it was
assumed that recycling of used nuclear fuel would
limit any long-term volume challenges the industry
might face. The uncertainty of being able to close
the nuclear fuel cycle is one of a myriad of
questions remaining to be answered in nuclear
waste policy.
Retrievability is one source of this policy
uncertainty. Retrievability means the ability to
retrieve emplaced waste or entire waste packages.
The necessity of actually retrieving used nuclear
fuel once it has been placed in a disposal system is
of great importance because of the ethical,
economic, political, and environmental
implications of the decision to maintain
continued on page 3
Nuclear Law Committee, April 2014
1
Nuclear Law Committee Newsletter
Vol. 6, No. 1, April 2014
Christine A. Jochim, Editor
Daniel Straus, Student Newsletter Editor
AMERICAN BAR ASSOCIATION
SECTION OF ENVIRONMENT,
ENERGY, AND RESOURCES
In this issue:
Message from the Committee Chair
Tison Campbell ....................................... 1
The Search for Retrieval: A History of
Nuclear Waste Legislation
Samuel Brinton ........................................ 1
The Continuing Evolution of Low-Level
Radioactive Waste Disposal Regulation
Lisa G. London ........................................ 5
Federal Preemption and State Licensing of
Nuclear Power Plants
Daniel Straus ............................................ 7
Revisiting Waste Confidence: What Went
Wrong?
Darani M. Reddick .................................. 9
An Update on the NRC’s Waste Confidence
Proceeding
Tison Campbell ..................................... 11
Financing Used Nuclear Fuel Storage
Randall W. Miller .................................... 12
The Yucca Mountain Nuclear Waste
Repository: What’s Next?
Barry M. Hartman, Tim Peckinpaugh, and
Christine A. Jochim .............................. 14
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Any opinions expressed are those of the contributors
and shall not be construed to represent the policies of
the American Bar Association or the Section of
Environment, Energy, and Resources.
2
CALENDAR OF SECTION EVENTS
May 2, 2014
State of the Practice Symposium
Vanderbilt University Law School
Nashville, TN
May 2-4, 2014
Spring Council Meeting
The Hutton Hotel
Nashville, TN
May 29, 2014
Key Environmental Issues in US EPA
Region 2
Primary Sponsor: New York State Bar
Association
Columbia Law School
New York, NY
June 4-6, 2014
32nd Annual Water Law Conference
The Red Rock Resort, Casino and Spa
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October 8-11, 2014
22nd Fall Conference
Trump National Doral Miami
Miami, FL
For full details, please visit
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Nuclear Law Committee, April 2014
continued from page 1
retrievability in the first place. The history of
nuclear waste policy is tied to this concept, though
the issue is rarely addressed specifically in
legislation or litigation.
The defining use of the word “retrieval” as it relates
to the disposal of used nuclear fuel in a repository
occurs in section 122 of the Nuclear Waste Policy
Act of 1982 (NWPA). 42 U.S.C. § 10142 (1982).
This seminal piece of legislation states that a
nuclear waste repository will
be designed and constructed to permit the
retrieval of any spent nuclear fuel placed in such
repository, during an appropriate period of
operation of the facility, for any reason
pertaining to the public health and safety or the
environment, or for the purpose of permitting the
recovery of the economically valuable contents
of such spent fuel.
Id. This simple statement adds orders of magnitude
to the cost of the project and increases the
proliferation risks of the site. So why was it
included?
Before the NWPA, the national policy of nuclear
waste management was haphazard. In 1957, the
National Academy of Science provided the first
report on the issue, titled “The Disposal of
Radioactive Waste on Land,” where it recognized
that uncertainties were significant in implementing a
geologic repository strategy but that there was no
need for retrieval and that the waste could be
“disposed of safely in a variety of ways and at a
large number of sites across the country.” NATIONAL
ACADEMY OF SCIENCES, NATIONAL RESEARCH COUNCIL,
THE DISPOSAL OF RADIOACTIVE WASTE ON LAND:
REPORT OF THE COMMITTEE ON WASTE DISPOSAL OF THE
DIVISION OF EARTH SCIENCES 3 (1957). By 1965,
packages of waste produced from the production of
nuclear weapons were being placed in an
abandoned salt mine in the town of Lyons, Kansas.
The Atomic Energy Commission (AEC) did not
Nuclear Law Committee, April 2014
officially designate Lyons as the site of the
demonstration project or take action to acquire the
property until 1970. The initial Oak Ridge National
Laboratory report on the technical status of the
Lyons facility did not even address the issue of
retrievability. When asked to provide a technical
basis for the lack of a retrieval plan, the
environmental statement argued that the mining
techniques would be “adequate to enable
development of waste retrieval questions,” meaning
that if a problem was found, the mine would be
reopened and the location of the used nuclear fuel
would be excavated to determine steps to address
the problem. F.L. CULLER, ORNL-4680, TECHNICAL
STATUS OF THE RADIOACTIVE WASTE REPOSITORY—A
DEMONSTRATION PROJECT FOR SOLID RADIOACTIVE
WASTE DISPOSAL (1971). Governor Robert Docking
of Kansas consulted with a variety of scientists who
overwhelmingly pointed out that not only was the
retrieval plan limited to a map of where the nuclear
waste would be buried, but also that the technology
was not ready for quick retrieval in the case of
containment loss. These responses, along with the
political quagmire of starting a project of this
magnitude without public notice, created a frenzy
that the AEC would not be able to overcome. The
AEC canceled the project in 1972. SAMUEL J.
WALKER, THE ROAD TO YUCCA MOUNTAIN: THE
DEVELOPMENT OF RADIOACTIVE WASTE POLICY IN THE
UNITED STATES 283 n.42 (2009) (citing “AEC Shifts
to Surface Engineered Waste Storage Facilities,”
19 NUCLEAR INDUSTRY 25 (May 1972)).
In the intermediary decade before the signing of the
NWPA and the cancelation of the Lyons repository,
political action on nuclear waste continued to
become increasingly uncertain. The AEC was
divided in 1974 into the Nuclear Regulatory
Commission and the Energy Research and
Development Administration (later to become the
Department of Energy), creating a lack of
centralized policy direction for the growing nuclear
waste stockpile. By 1977, President Carter
continued President Ford’s policy on nuclear fuel
cycles and ended commercial reprocessing. An
Interagency Review Group gave a “comprehensive
review of nuclear waste policy” in 1979, which had
3
as great an effect as the Blue Ribbon Commission
on America’s Nuclear Future did in 2012—a good
review that caused no subsequent action. J.M.
Deutch, REPORT TO THE PRESIDENT BY THE INTERAGENCY
REVIEW GROUP ON NUCLEAR WASTE MANAGEMENT
(1979), available at http://curie.ornl.gov/content/
report-president-interagency-review-group-nuclearwaste-management; BLUE RIBBON COMM’N ON
AMERICA’S NUCLEAR FUTURE, REPORT TO THE SECRETARY
OF ENERGY (2012), available at http://brc.gov/sites/
default/files/documents/brc_finalreport_
jan2012.pdf.
The halls of Congress created a flurry of policy
suggestions during this period, though none seemed
to appease enough interest groups to move beyond a
congressional committee. The 94th Congress
proposed two bills on nuclear waste: requiring
notice of waste emplacement and the end of nuclear
power licensing until the issue of what to do with
nuclear waste had been resolved. H.R. 15673, 94th
Cong. (2nd Sess. 1976); Nuclear Power
Reappraisal Act of 1975, S. 1826, 94th Cong. (1st
Sess. 1975). Although neither gained traction, the
95th Congress responded to the end of reprocessing
with 45 proposed pieces of legislation ranging from
the end of ocean dumping of nuclear waste to
research funding for interim waste facilities.
Factions began to build for a state’s right not to
accept national nuclear waste and the need for a
waste repository. The 96th Congress created over
70 different bills on nuclear waste while President
Reagan retracted the ban on reprocessing. The need
for retrieval entered the conversation through a
flurry of legislation designed to appease states that
were worried about waste emplacement within their
borders and states who wanted a more permanent
solution. Congressman Morris Udall introduced
H.R. 3809 on June 4, 1981, which, after significant
amendment and debate, became the Nuclear Waste
Policy Act of 1982. He stated that “nuclear waste
put in this repository will not be accessible,” even
with the language of section 122 (above), directly
contradicting his statement. 128 CONG. REC. 27,772
(Nov. 29, 1982) (statement of Rep. Morris Udall).
4
As the current Congress considers the Nuclear
Waste Administration Act of 2013, S. 1240, 113th
Cong. (2013), the debate on reversibility and
retrievability for future nuclear waste projects may
well change again. The trail of this requirement of
reversibility and retrievability from a decade before
it was codified into law through hundreds of reports
and proposed pieces of legislation is useful in the
analysis of nuclear waste management as a
dynamically complex process. The complex nature
of nuclear waste legislation and policy is evident,
and may prove insightful to the current nuclear
waste legislation and litigation battles.
Samuel Brinton is a graduate student at
Massachusetts Institute of Technology in the
Department of Nuclear Science and Engineering
as well as the Technology Policy Program. His
research interests are the regulatory and political
decisions concerning nuclear waste
management along with fuel cycle implications
of technologies such as small modular reactors.
REGISTER TODAY
www.ambar.org/EnvironWL
Nuclear Law Committee, April 2014
THE CONTINUING EVOLUTION OF LOWLEVEL RADIOACTIVE WASTE DISPOSAL
REGULATION
Lisa G. London
Background
Since the first production of nuclear power and use
of nuclear materials, the Nuclear Regulatory
Commission (NRC) has grappled with the safest and
most effective way to dispose of low-level
radioactive waste produced by the commercial
nuclear power industry, the medical industry, and
other nuclear material licensees.
In response to the need for a comprehensive
regulatory scheme for the disposal of low-level
radioactive wastes, the NRC developed the
regulations found in part 61 of Code of Federal
Regulations (C.F.R.) chapter 10. Part 61 establishes
a four-tier waste-classification system that
determines the disposal practices and procedures
that must be applied to waste at the time of disposal.
10 C.F.R. § 61.55(a). The NRC developed the part
61 regulations in the early 1980s based on the best
available information, including the contents and
radioactive concentrations of waste streams being
disposed of commercially at that time. The waste
classification system includes three waste
classifications (Classes A–C) that are suitable for
disposal in the near surface (the uppermost 30
meters of the earth’s surface), and one classification
that is not suitable for near-surface disposal (greater
than-Class C). 10 C.F.R. § 61.55(a)(2).
This system has provided a sound foundation for
safe disposal of the various wastes produced by
different nuclear industries. Using part 61, the NRC
and its licensees have been able to respond
effectively to the changing circumstances in the field
of low-level waste disposal. For example, a
forecasted shortage of disposal space many years
ago resulted in the NRC developing a policy
statement on volume reduction in 1981 encouraging
waste generators to both minimize the amount of
waste produced and engage in waste volume
Nuclear Law Committee, April 2014
reduction. 46 Fed. Reg. 51,100 (Oct. 16, 1981). The
policy statement was updated in 2012 and published
under the new title, “Policy Statement on Volume
Reduction and Low-Level Radioactive Waste
Management.” In the 2012 update, the Commission
emphasized the importance of continuing waste
minimization activities but recognized other
valuable waste management tools, such as shortterm storage and decay and waste processing
options. 77 Fed. Reg. 25,760 (May 1, 2012). In
response, licensees undertook widespread waste
volume reduction, resulting in much needed
efficiencies for the remaining available disposal
space. 76 Fed. Reg. 50,500 (Aug. 15, 2011).
While disposal of low-level wastes under part 61
has been protective of the health and safety of the
public and the environment, in recent years, issues
have begun to surface prompting the NRC to
consider certain limited revisions to the regulations.
Rulemaking
One of the emerging issues is the disposal of lowlevel radioactive waste streams that were not
considered in the regulatory basis for part 61. For
example, the regulatory basis for part 61 did not
consider blended wastes. Licensees can optimize
the limited amount of disposal space for low-level
waste by blending wastes that, at the time of
classification, would typically be considered Class
B or C waste into a lower classification (for
example, blending wastes that, at the time of
classification, would be Class B and Class A
together to create a “higher” Class A waste); the
resulting blend will be more radioactive, but
achieves a lower classification. This is different
than the concept of “dilution,” which occurs when
clean materials are mixed with waste.
Another emerging issue is the disposal of depleted
uranium in commercial disposal facilities. Most of
the low-level waste produced in the United States is
Class A. But depleted uranium, a by-product of the
uranium enrichment process, behaves differently
than all other wastes classified as Class A in part 61
because the radiological risks associated with
5
depleted uranium increase over time, with a halflife of greater than 100 million years. When part 61
was adopted, very little depleted uranium was being
disposed of in commercial disposal facilities
because disposal of the majority of depleted
uranium being generated at that time was the
responsibility of the Department of Energy. This
may change, however, now that the Department of
Energy is considering disposing of its depleted
uranium in commercial disposal facilities. “Draft
Supplement Analysis for Location(s) to Dispose of
DU Conversion Product Generated from DOE’s
Inventory of Depleted Uranium Hexafluoride,”
DOE/EIS-0359-SA1 and DOE/EIS-0360-SA1, at
43 (Mar. 2007). The NRC conducted a screening
analysis to assess the suitability of depleted uranium
for near-surface disposal, and concluded that such
disposal could be done safely but only under certain
conditions. SECY-08-0147, dated Oct. 7, 2008
(NRC Agencywide Documents Access and
Management System (ADAMS) Accession Number
ML081820762). In response to the analysis, the
Commission directed the staff to prepare a proposed
rule that would update part 61 to consider waste
streams that were not evaluated in the part 61
regulatory basis, which could address depleted
uranium as well as any future waste streams that are
not currently envisioned. Staff Requirements
Memorandum for SECY-08-0147, dated Mar. 18,
2009 (NRC ADAMS Accession Number
ML90770988). In order to update the part 61 rules
in a way that would allow licensees the flexibility
to address such a variety of waste streams, the NRC
is considering adding site-specific requirements,
including a requirement for a site-specific
performance assessment (SSPA). Id. By evaluating
site-specific conditions, such as geology, hydrology,
and inventory, an SSPA would provide additional
assurance that waste streams that were not
considered in the initial regulatory basis for part 61
meet the performance objectives prior to disposal.
Between 2009 and 2011, the staff held a number of
public meetings and prepared a regulatory basis, a
white paper on period of performance, and
preliminary draft rule language. The white paper on
period of performance—a designated time frame
6
used by a licensee to demonstrate a site’s ability to
comply with part 61—detailed the analysis the NRC
staff considered for a period of performance for the
SSPA and explained the basis for the staff’s initial
selection of a 20,000-year period of performance.
“Technical Analysis Supporting Definition of Period
of Performance for Low-Level Waste Disposal”
(NRC ADAMS Accession Number ML111030586).
After the initial efforts for the rulemaking were
underway, the NRC received inquiries from
industry regarding the agency’s position on blending
of wastes. Letter from Waste Control Specialists
LLC to Annette L. Vietti-Cook, Secretary, NRC
(Sept. 22, 2009) (NRC ADAMS Accession Number
ML092810204); Letter from Joseph DiCamillo,
General Counsel, Studsvik, to Annette L. ViettiCook, Secretary, NRC (Aug. 7, 2009) (NRC
ADAMS Accession Number ML092450120); Letter
from Thomas E. Magette, Senior Vice President,
Nuclear Regulatory Strategy, EnergySolutions, LLC,
to Annette L. Vietti-Cook, Secretary, NRC (May 12,
2009) (NRC ADAMS Accession Number
ML91410398). In response, the Commission elected
to both clarify the agency’s position and increase the
amount of risk information considered—and
performance-based measures used—in part 61 to
address the blending of waste by incorporating it
into the ongoing rulemaking. Staff Requirements
Memorandum for SECY-10-0043, dated Oct. 13,
2010 (NRC ADAMS Accession Number
ML102861764).
In early 2012, the Commission reconsidered the
general direction of the rulemaking and directed the
NRC staff to address a set of regulatory issues in the
proposed update to part 61. Staff Requirements
Memorandum for COMWDM-11-0002/COMGEA11-0002, dated Jan. 19, 2012 (NRC ADAMS
Accession Number ML120190360). Specifically,
the Commission directed the staff to address: (1)
allowing the use of International Commission on
Radiation Protection dose methodologies in a sitespecific performance assessment, (2) a two-tiered
approach covering a compliance period for a
reasonably foreseeable time and a performance
period based on site characteristics and peak dose
Nuclear Law Committee, April 2014
to a designated receptor, (3) possible use of a sitespecific waste acceptance criteria based on the sitespecific performance assessment and the intruder
assessment, and (4) compatibility designations that
ensure alignment between the states and federal
government on safety fundamentals while providing
flexibility to the states to determine implementation.
Id.
In July 2013, the NRC staff provided a revised
proposed rule and draft guidance document to the
Commission for review. In February 2014, the
Commission responded by instructing staff to further
refine certain elements of the rulemaking—for
instance, directing staff to consider a regulatory
compliance period of 1000 years—as well as a host
of other changes to the rulemaking package. Staff
Requirements Memorandum for SECY-13-0075,
dated Feb. 12, 2014 (NRC ADAMS Accession
Number ML14043A371). With these new
directions, the NRC will continue to improve lowlevel waste disposal regulations.
Lisa G. London is an attorney at the U.S. Nuclear
Regulatory Commission (NRC), working primarily on
waste issues. Before joining the NRC, she worked
at the Florida Department of Environmental
Protection litigating violations of state
environmental regulations. The views expressed
in this article are the views of the author and do
not necessarily reflect the views of the NRC.
www.ambar.org/Annual
Nuclear Law Committee, April 2014
FEDERAL PREEMPTION AND STATE
LICENSING OF NUCLEAR POWER PLANTS
Daniel Straus
During the 1970s, California instituted a moratorium
on the construction of new nuclear power plants
until the federal government adopted a long-term
solution for the disposal of spent nuclear fuel. State
Energy Resources Conservation and Development
(Warren-Alquist) Act, CAL. PUB. RES. CODE
§ 25,524.2 (West 1977). Pacific Gas, a California
utility, filed a preemption challenge against
California claiming the state’s moratorium was
preempted by federal law. In a unanimous opinion,
the Supreme Court upheld California’s regulations
because the state’s moratorium reflected economic
concerns about the costs and uncertainty of nuclear
power generation. Pac. Gas & Elec. Co. v. State
Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 204 (1983) (hereinafter “Pacific Gas”).
In rejecting the nuclear industry’s preemption
challenge, the Supreme Court established a balance
between protecting the U.S. Nuclear Regulatory
Commission’s (NRC’s) exclusive authority over the
safety aspects of nuclear power generation and
preserving the role of the states in deciding the need
for and economic desirability of new sources of
power generation.
In recent years, some states are again pushing the
boundaries of their authority to regulate nuclear
power generation. See, e.g., DEL. CODE ANN. tit. 16,
§ 7417 (West 2012); ME. REV. STAT. ANN. tit. 35-A,
§ 4371 (West 1987); MINN. STAT. ANN. § 116C.72
(West 2012); N.D. CENT. CODE § 23-20.2-09 (West
2013). Most notably, Vermont attempted to close
down the Entergy Vermont Yankee Nuclear Power
Plant at the conclusion of its original 40-year
federal operating license by conditioning an
extension of the plant’s state operating license on
legislative approval and meeting certain storage
requirements above and beyond those required by
the NRC. VT. STAT. ANN. tit. 30, §§ 248(e)(2),
248(m), and 254 (West 2012) (hereinafter “Act
160”); id. at tit. 10, §§ 6521–23 (West 2012)
(hereinafter “Act 74”).
7
In August 2013, the Second Circuit upheld a district
court’s injunction prohibiting Vermont from
enforcing its new statutory scheme. Significantly, the
Second Circuit found the Vermont provisions
preempted by federal law even though the
legislation included preambles explaining the state
was motivated by its desire to regulate the economic
aspects of nuclear power generation. Entergy
Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393
(2d Cir. 2013). The decision represents a victory
for the nuclear power industry because it limits the
avenues available to state governments attempting to
prevent or stop nuclear power generation within
their borders.
In affirming the district court’s injunction
prohibiting Vermont from enforcing either Act 160
or 74, the Second Circuit affirmed two longstanding principles. First, federal law preempts
state regulation of the “safety and ‘nuclear’ aspects
of [nuclear] energy generation.” Entergy, 733 F.3d
at 411–12 (quoting Pacific Gas, 461 U.S. at 204).
Second, states retain their traditional authority to
regulate land use, ratemaking, and “the economic
question [of] whether a particular plant should be
built.” Id. at 411 (quoting Pacific Gas, 461 U.S. at
207–09).
The Second Circuit distinguished Vermont’s Acts 74
and 160 from California’s Warren-Alquist Act.
First, California’s moratorium applied only to the
construction of new nuclear power plants, not
regulation of already existing plants. Entergy,
733 F.3d at 410. Second, the Second Circuit noted
that the Warren-Alquist Act and its legislative report
focused exclusively on the economic consequences
stemming from the nonexistence of a long-term
solution for storing spent nuclear fuel. Id.; Pacific
Gas, 461 U.S. at 214. Finally, the Second Circuit
explained that the electrical utility industry had
changed drastically between the early 1980s when
the Supreme Court decided Pacific Gas and today.
Entergy, 733 F.3d at 411–14. Previously, electrical
utilities were vertically integrated regional
monopolies subject to state ratemaking. In these
traditionally regulated energy markets, states could
reasonably expect that consumers would be forced
8
to shoulder any rising costs associated with nuclear
spent fuel storage. In contrast, today’s deregulated
markets provide consumers with more choices. Id.
at 412.
The Second Circuit agreed that Vermont’s express
economic reasons for adopting the legislation were
permissible. Entergy, 733 F.3d at 416. However, the
Court noted that several of the provisions included
radiological safety requirements above and beyond
those required by the NRC. Id. at 414–15. For
example, Act 74 required Entergy to adopt spent
nuclear fuel storage safety measures more stringent
than those already provided for by the NRC. Id. at
423.
Moreover, the Court questioned the legitimacy of
Vermont’s concerns that its consumers would be
forced to shoulder the rising costs of spent nuclear
fuel storage. Id. at 418–19. Vermont’s energy market
has undergone significant reform since the early
1980s when Pacific Gas was decided. The Vermont
Public Utility divested from power generation,
connected independent energy generators to its
transmission grid (e.g., Entergy purchased the
Vermont Yankee plant from a consortium of public
utilities and operated it as an independent
generator), and joined an independent system
operator (ISO), which manages regional electrical
grids and prevents discrimination and the exercise
of market power by individual electrical utilities in
the provision of transmission services. These
reforms allow Vermont consumers to choose
between different electricity generators within their
state and to access out-of-state power generators
within the New England ISO. Id. at 412–13.
Finally, the Court examined the legislative history of
Acts 160 and 74. Based upon the District Court’s
record of fact, the Second Circuit concluded that the
Vermont legislature was largely motivated by
impermissible radiological safety concerns, namely,
numerous legislative reports, floor debates, and
statements by legislatures. Id. at 426 (“These
statements demonstrate the Vermont Legislature’s
impermissible motive in passing Act 74—namely, to
shut down Vermont Yankee based on concerns of
Nuclear Law Committee, April 2014
radiological safety while attempting to avoid a
preemption challenge under Pacific Gas.”).
Moving forward, state attempts to adopt restrictive
licensing requirements for nuclear plants will likely
be evaluated under heightened scrutiny. Courts will
likely examine the actual basis for state regulations,
not just possible rational bases or the state’s
proffered justification.
Daniel Straus is a third-year student at Columbia
Law School and will begin working for the NRC as
an Honor Law Graduate in fall 2014.
REVISITING WASTE CONFIDENCE: WHAT
WENT WRONG?
Darani M. Reddick
The U.S. Nuclear Regulatory Commission’s
(NRC’s) 2010 Waste Confidence Decision and
Temporary Storage Rule set forth the agency’s
analysis of the safety and environmental impacts of
interim storage of spent nuclear fuel until disposal
in a permanent repository. 75 Fed. Reg. 81,032
(Dec. 23, 2010). The agency has for several
decades relied upon the Waste Confidence Decision
for purposes of licensing actions, including initial
licenses and license renewal. But in June 2012, the
Court of Appeals for the District of Columbia
Circuit remanded the 2010 Waste Confidence
Decision and Temporary Storage Rule, forcing the
NRC to suspend final license decisions pending
resolution of the remand. New York v. NRC,
681 F.3d 471 (D.C. Cir. 2012).
Since the remand, the NRC has spent substantial
time and resources responding to the issues
identified by the Court. The agency established a
Waste Confidence Directorate to oversee the
development of a new Waste Confidence rule and
support the development of a generic environmental
impact statement (GEIS). The agency has also held
numerous public meetings around the country to
receive stakeholder input. The proposed rule and
draft GEIS are intended to address the deficiencies
Nuclear Law Committee, April 2014
identified by the D.C. Circuit, and were issued on
September 13, 2013. 78 Fed. Reg. 56,776; 78 Fed.
Reg. 56,621. The final rule and GEIS are expected
to be issued in October 2014. Given the significant
effort being devoted to the Waste Confidence
rulemaking, a closer look at the bases for the
Court’s remand and the scope of the NRC’s
response is warranted.
The Court first held that the Waste Confidence
rulemaking constituted a major federal action,
necessitating an environmental review under the
National Environmental Policy Act (NEPA). New
York, 681 F.3d at 473. The Court then found that the
NRC had failed to meet its NEPA obligations in
three areas: (1) the environmental impacts in the
event of a failure to secure permanent disposal;
(2) the risks of future spent fuel pool leaks; and
(3) the consequences of spent fuel pool fires. Id.
Accepting the D.C. Circuit’s premise that the Waste
Confidence rulemaking is a major federal action (on
the theory that, although Waste Confidence does not
authorize any particular licensing action, it is a
predicate to reactor licenses), each of the three
deficiencies is examined below.
First, at the heart of the decision is the Court’s clear
recognition of the lack of progress on a high-level
waste repository. The Court expressed skepticism
for the NRC’s conclusion that permanent disposal
would be available “when necessary,” but did not
invalidate the rule on those grounds. Rather, it found
that the NRC should have assessed the
environmental impacts of a complete failure to
establish a permanent repository, absent a finding
that such a scenario is “remote and speculative.”
The Court stated that, “[t]he Commission apparently
has no long-term plan other than hoping for a
geologic repository.” Id. at 479. The Court also
suggested that there is no basis to deem a “no
repository” scenario to be “remote and
speculative.” Id. Interestingly, the decision
disregards the existing statutory obligation of the
government to provide a permanent high-level waste
repository. But in In re Aiken County, the D.C.
Circuit ruled that the Nuclear Waste Policy Act
mandates continuing with the Yucca Mountain
9
license application. 725 F.3d 255, 260–61 (D.C.
Cir. 2013). Notwithstanding the inconsistency, New
York requires the NRC to assess the environmental
impacts of a scenario that is contrary to existing
law.
Next, the Court was not satisfied with the NRC’s
assessment of the risks of future spent fuel pool
leaks. It ruled that the NRC could not conclude that
future spent fuel pool leaks will be harmless simply
based on data that past leaks were harmless. New
York, 681 F.3d at 480–81. As a matter of record, the
2010 Waste Confidence Decision looked at past
operating experience regarding groundwater leaks
for meaningful data to inform the potential for future
leaks and their consequences. The NRC also
pointed to its regulatory oversight programs and
relevant industry initiatives. But the Court
discounted the former as insufficient to support an
environmental finding that future spent fuel pool
leaks will have no significant impacts. The Court
found the NRC’s rationale unpersuasive,
particularly because the time period for the agency’s
assessment “may extend to nearly a century for some
facilities.” Id. at 481. This statement suggests that
the Court may have deferred to the agency’s
technical judgment and the NRC’s “agency on duty”
argument had the assessment involved a shorter time
frame.
Lastly, the D.C. Circuit held that although the NRC’s
analysis of spent fuel pool fires was more
substantial than its analysis of leaks, the agency
failed to consider the consequences of spent fuel
pool fires. Id. at 481–82. The Court took no issue
with the NRC’s general probability-weighted
approach to assessing environmental impacts under
Books from the Section
10
NEPA, whereby an overall low risk driven by a low
probability (despite a high consequence) could
justify a finding of no significant impact. But the
Court concluded that the agency had entirely
excluded the consequences of spent fuel pool fires
based on their low probability, and therefore, did
not weigh both probabilities and consequences. It
reasoned that a consequences analysis can be
omitted “[o]nly if the harm in question is so ‘remote
and speculative’ as to reduce the effective
probability of its occurrence to zero.” Id. at 482.
The Court’s rationale appears to set a new “zero
probability” standard for considering scenarios to
be “remote and speculative” under NEPA.
Not surprisingly, the NRC has expended
considerable resources responding to the decision.
The agency chose to overhaul its approach to waste
confidence issues by undertaking a new rulemaking
and generically assessing the associated
environmental impacts in a GEIS, even though a
more narrow approach focused specifically on the
three deficiencies identified by the Court also could
have satisfied the remand. Nevertheless, the NRC’s
extensive work on the current Waste Confidence
update will undoubtedly face future judicial
challenge, and will continue to test the degree of
judicial deference afforded to an agency’s technical
judgment. The resulting decision may have
significant implications for environmental law, as
well as the potential to once again significantly
affect the timetable for nuclear plant licensing.
Darani Reddick is an associate at Winston &
Strawn LLP. The views expressed in this article are
solely those of the author and do not necessarily
reflect the views of Winston & Strawn LLP.
www.shopABA.org
Nuclear Law Committee, April 2014
AN UPDATE ON THE NRC’S WASTE
CONFIDENCE PROCEEDING
Tison Campbell
Since 1984, the U.S. Nuclear Regulatory
Commission (NRC) has relied on a generic
environmental determination to assess the
environmental impacts of storing spent nuclear fuel
after the end of a nuclear reactor’s licensed life. The
NRC last updated this generic assessment,
commonly known as “Waste Confidence,” in 2010.
A number of parties, including well-known
environmental groups, states, and tribes challenged
the NRC’s 2010 update to the Waste Confidence
rule. In June 2012, the U.S. Court of Appeals for the
District of Columbia Circuit vacated and remanded
the NRC’s 2010 Waste Confidence rule and directed
the NRC to include an assessment of the
environmental impacts of spent fuel storage should a
repository for the spent fuel never become
available. New York v. NRC, 681 F.3d 471 (D.C.
Cir. 2012). The Court also identified some
deficiencies with the NRC’s analyses of spent fuel
pool leaks and spent fuel pool fires, and directed the
NRC to address these issues in response to the
remand. Id. at 481–482.
In response to the Court’s decision, the Commission
issued an Order, CLI-12-16, which suspended the
final issuance of any pending licensing actions that
depend on the Waste Confidence analysis, including
reactor and independent spent fuel storage
installation initial licenses and license renewals.
The NRC staff is continuing to review these
licensing applications, but will not issue a final
decision in any of these reviews until the Waste
Confidence rule is updated. In a Staff Requirements
Memorandum issued on September 6, 2012, the
Commission directed the NRC staff to prepare an
environmental impact statement to support an
updated Waste Confidence rule. SRM-COMSECY12-0016. In response, the NRC staff created a Waste
Confidence Directorate to oversee the development
of the generic environmental impact statement
(GEIS) and proposed rule.
Since its creation, the Directorate has made
substantial progress toward meeting the
Nuclear Law Committee, April 2014
Commission’s September 2014 deadline. In
September 2013, the Directorate issued a draft
generic environmental impact statement and
proposed rule for public review and comment.
78 Fed. Reg. 56,621, 56,776 (Sept. 13, 2013). As
part of this process, Directorate staff and attorneys
from the NRC’s Office of the General Counsel
traveled to ten locations around the country to
receive comments from interested members of the
public. The Directorate also held three meetings at
NRC headquarters to receive comments in person
and over the telephone. Transcripts and summaries
of these meetings are available on the NRC’s public
website. Available at http://www.nrc.gov/waste/
spent-fuel-storage/wcd/pub-involve.html.
The comment period for the draft generic
environmental impact statement and proposed rule
closed on December 20, 2013. In addition to the
many comments submitted at the public meetings,
over 30,000 written comments were received via
e-mail, mail, and through the Federal e-Rulemaking
docket, http://www.regulations.gov. The Directorate
staff is now processing and reviewing the
comments, and copies of all the comments are
available on the NRC’s Agencywide Documents
Access and Management System (ADAMS) and on
www.regulations.gov under docket NRC-20120246. The NRC received comments in support of
and in opposition to the proposed rule and draft
generic environmental impact statement (GEIS).
The NRC staff will consider these comments as it
develops a final rule and GEIS; responses to the
comments will accompany any final documents that
might result from this process. The NRC projects
that the Waste Confidence update will be completed
by fall 2014.
For more information, and to keep up to date on the
latest developments regarding this project, please
see the NRC’s Waste Confidence website at http://
www.nrc.gov/waste/spent-fuel-storage/wcd.html.
Tison Campbell is Lead Counsel for Waste
Confidence at the NRC. The views expressed in
this article are solely those of the author and do
not necessarily represent the positions of the
NRC.
11
FINANCING USED NUCLEAR FUEL STORAGE
Randall W. Miller
The Nuclear Waste Policy Act of 1982 (NWPA)
requires the federal government to provide a
permanent storage facility for used nuclear fuel
(UNF); however, no permanent storage facility has
been developed since the suspension of the Yucca
Mountain project. Nuclear Waste Policy Act of 1982
(NWPA), Pub. L. No. 97-425, 96 Stat. 2201 (1982)
(codified at 42 U.S.C. §§ 10101–10270 (2013));
Nat’l Ass’n of Regulatory Utility Comm’rs v. U.S.
Dept. of Energy, 2013 WL 6064021, at *2 (D.C.
Cir. Nov. 19, 2013). As a result, nuclear utilities
and ratepayers will continue to shoulder the interim
UNF storage costs for the foreseeable future.
Overview of UNF Storage
Currently, more than 65,000 metric tons of UNF are
stored at 78 nuclear reactor sites in 35 states.
Andrew C. Kadak, Storage of Spent Nuclear Fuel,
Managing Nuclear Waste, THE BRIDGE, Summer
2012 at 24; JAMES D. WERNER, CRS, R42513, U.S.
SPENT NUCLEAR FUEL STORAGE 2 (May 24, 2012),
available at http://www.fas.org/sgp/crs/misc/
R42513.pdf. Nuclear reactors typically generate
about 2000 metric tons of UNF annually, and the
amount of UNF “is expected to more than double to
about 140,000 metric tons by 2055, when the last of
currently operating reactors is expected to retire.”
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–12–797,
SPENT NUCLEAR FUEL: ACCUMULATING QUANTITIES AT
COMMERCIAL REACTORS PRESENT STORAGE AND OTHER
CHALLENGES 19 (Aug. 2012), available at http://
www.gao.gov/assets/600/593745.pdf. According to
the 2012 final report issued by the Blue Ribbon
Commission on America’s Nuclear Future, most
UNF will remain in storage pools until a permanent
storage option is found. BLUE RIBBON COMMISSION ON
AMERICA’S NUCLEAR FUTURE, REPORT TO THE SECRETARY
OF ENERGY 11 (Jan. 2012) (hereinafter BRC Report).
Some storage pools, however, have reached
capacity and others will do so in the near future.
Nuclear Fuel Pool Capacity, U.S. Nuclear
12
Regulatory Commission, http://www.nrc.gov/waste/
spent-fuel-storage/nuc-fuel-pool.html.
UNF Storage Costs and the Nuclear Waste
Fund
The annual security and monitoring costs for UNF
stored at the 70 shutdown nuclear reactor sites in the
United States range from $350 to $550 million.
BRC Report at 36. The storage costs for UNF at
each shutdown site can “range from $4.5 million to
$8 million per year, compared to an incremental $1
million per year or less when the reactor is still in
operation.” BRC Report at 35. In addition to paying
for interim UNF storage, nuclear utilities must pay a
Nuclear Waste Fund (NWF) fee to fund the future
development of a permanent UNF storage facility or
repository. 42 U.S.C. § 10222 (2013). The fees
generate about $750 million annually and are
assessed at the rate of one-tenth of a cent per “every
kilowatt-hour of nuclear-generated electricity as a
quid pro payment in exchange for the federal
government’s contractual commitment to begin
accepting commercial spent fuel . . .” Oversight
Hearing—Nuclear Waste Programs and Strategies:
Hearing Before the Subcomm. on Energy and
Water Development, and Related Agencies of the
H. Comm on Appropriations, 113th Cong. 2 (2013)
(statement of Susan Eisenhower, Former BRC
Member); BRC Report at 70. As of January 2013,
the fund totaled more than $28 billion and accrued
an annual interest amount of about $1.3 billion.
Nat’l Ass’n of Regulatory Utility Comm’rs, 2013
WL 6064021, at *2–3; Martha Groves Pugh, United
States: D.C. Circuit Orders DOE to Stop
Collecting Nuclear Waste, MONDAQ (Nov. 23,
2013), available at http://www.mondaq.com/
unitedstates/x/276764/Waste+Management/
DC+Circuit+Orders+DOE+to+Stop+Collecting+
Nuclear+Waste+Fee.
On November 19, 2013, the Court of Appeals for
the District of Columbia (D.C. Circuit) ordered the
Department of Energy (DOE) to submit a proposal
to Congress with the recommendation that the NWF
fee be reduced to zero. Nat’l Ass’n of Regulatory
Utility Comm’rs, 2013 WL 6064021, at *7. The
Nuclear Law Committee, April 2014
Honorable Judge Silberman stated the reason for the
order:
According to the Secretary [of Energy], the final
balance of the fund to be used to pay the costs of
disposal could be somewhere between a $2
trillion deficit and a $4.9 trillion surplus. This
range is so large as to be absolutely useless as
an analytical technique to be employed to
determine—as the Secretary is obligated to
do—the adequacy of the annual fees. . . .
Id. at *3. The D.C. Circuit stated that the NWF fee
may be reinstated once the Secretary makes an
adequate fee assessment as required by the NWPA.
Id. at *7.
According to estimates by the DOE in 2008, the
repository at Yucca Mountain would have cost
“$96.2 billion (in 2007 dollars) to license,
construct, operate, and close.” BRC Report at 31.
This estimate takes into account that the legislated
capacity of Yucca Mountain was only 70,000 metric
tons of UNF, which accounts for half of the amount
of UNF that is estimated to accumulate by 2055. Id.;
U.S. GOV’T ACCOUNTABILITY OFFICE, supra, at 19
(Aug. 2012). Should Congress decide not to pursue
development of the Yucca Mountain repository,
additional funds would be needed to cover the costs
associated with identifying a replacement site. See
BRC Report at 31 (acknowledging that no sites have
been identified for UNF management).
Federal Liability
As of September 30, 2013, the Judgment Fund, 31
U.S.C. § 1304, had paid $2.7 billion in settlements
to nuclear utilities for the federal government’s
failure to open a repository and accept UNF. U.S.
DEP’T OF ENERGY, OAS-FS-14-02, AUDIT REPORT:
DEPARTMENT OF ENERGY’S NUCLEAR WASTE FUND’S
FISCAL YEAR 2013 FINANCIAL STATEMENT AUDIT 18
(Dec. 2013). If the federal government cannot
accept UNF by 2020, it will be liable for
approximately $20.8 billion. BRC Report at 79. The
federal government can reduce its liability by
developing a permanent repository, enacting new
Nuclear Law Committee, April 2014
legislation that would change the NWPA, or
providing interim storage options for nuclear
utilities until a repository is available to receive
UNF.
Randall W. Miller is a third-year law student at
Washington and Lee School of Law, where he
serves as the Note Editor for the Journal of
Energy, Climate, and the Environment. In 2013, he
interned with the U.S. Senate Committee on
Environment and Public Works and the
Commodity Futures Trading Commission Division
of Enforcement.
Upcoming Events of Interest
The International Nuclear Law Association
(INLA) is organizing its next biennial
congress in Buenos Aires, Argentina,
October 20–23, 2014. The congress will
cover the entire range of topics related
to nuclear law—safety, security,
nonproliferation, and liability. While most
presentations will be delivered in English,
interpretation in Spanish will be provided.
For further information on the congress
and for submission of papers or possible
participation as a presenter, please
contact the secretariat of INLA at
brigitte@aidn-inla.be.
The purpose of the INLA, a private
association created some 40 years ago, is
to promote the study of legal issues
associated with the peaceful uses of
nuclear energy and to encourage the
exchange of information and education
in this domain.
Note: If you have any upcoming events of
interest that you would like printed in the
committee newsletter, please e-mail the
editor at christine.jochim@klgates.com.
13
THE YUCCA MOUNTAIN NUCLEAR WASTE
REPOSITORY: WHAT’S NEXT?
Barry M. Hartman, Tim Peckinpaugh, and
Christine A. Jochim
A discussion about nuclear waste would not be
complete without a recitation of the United States’
efforts to designate, license, and construct a national
repository for the permanent disposal of spent
commercial nuclear fuel and high-level defense
waste. The Nuclear Waste Policy Act (NWPA) of
1982, as amended, 42 U.S.C. § 10101 et seq.,
directs the U.S. Department of Energy (DOE) to
consider Yucca Mountain, Nevada, as the location to
site, build, and operate a geologic repository for
such waste. The NWPA also directs the U.S.
Nuclear Regulatory Commission (NRC) to license
and regulate the facility.
Despite this statutory direction, the licensing
process for Yucca Mountain came to a halt when the
President announced his intention to abandon the
project, and DOE filed a motion to withdraw its
license application with prejudice, which was under
review by the NRC. In re U.S. Dep’t of Energy
(High-Level Waste Repository), Dkt. No. 63-001,
ASLBP No. 09-892-HLW-CAB04, at 1 (Mar. 3,
2010) (stating that “the Secretary of Energy has
decided that a geologic repository at Yucca
Mountain is not a workable option for long-term
disposition of these materials.”). Petitioners,
including Robert Ferguson, a Washington resident,
Washington State, South Carolina, and Aiken
County, South Carolina, challenged the
announcement to abandon the Yucca site, noting that
the NWPA specifically required that the process for
approving or denying a license for the site be
undertaken and gave the DOE and NRC no choice
but to see where that process led. In re Aiken Cnty.,
No. 10-1050 (D.C. Cir. filed Feb. 19, 2010). The
U.S. Court of Appeals for the District of Columbia
rejected the case, finding that the action was not ripe
for review because the NRC had not yet ruled on the
Secretary’s motion to withdraw its license
application, because only the NRC and not the
president had the authority to stop the review
process. In re Aiken Cnty., 645 F.3d 428, 437–38
14
(D.C. Cir. 2011). The Court also indicated that it
would entertain a petition for writ of mandamus if
the NRC failed to act on DOE’s license application
within the three years statutorily required by the
NWPA. Id. at 436.
By the time of the court’s decision, the three-year
statutory deadline for deciding the application had
passed, and the same parties (as well as Nye
County, Nevada, and the National Association of
Regulatory Utility Commissioners) filed a petition
for mandamus against the NRC. Petition for Writ of
Mandamus (Agency Action Unreasonably Withheld),
No. 11-1271, Dkt. No. 1321792 (D.C. Cir. filed
July 29, 2011). The petition asserted that the NRC
had violated its non-discretionary obligation under
the NWPA to consider and decide on DOE’s license
application to construct the Yucca Mountain
geologic repository. Id. at 1. The petitioners’
arguments were based on the language of the NWPA
that provides that the NRC “shall consider” the
Yucca Mountain license application and make a
final decision within a specific time frame. See In
re Aiken Cnty., 725 F.3d 255, 267 (D.C. Cir. 2013)
(Randolph, J., concurring), petition for reh’g
denied, 2013 U.S. App. LEXIS 22003 (D.C. Cir.
Oct. 28, 2013). A preliminary order holding the
mandamus case in abeyance was issued, but was
accompanied by two opinions, both of which
essentially concluded that the NRC had violated the
law, and its primary defense—that Congress
“might” change the law—was rejected. The
abeyance order, though not accepting the NRC’s
arguments, temporarily stayed the case to see if
Congress might render it moot by taking some
legislative action. Congress did not and so the Court
took the rare step of granting the writ of mandamus
directing the NRC to resume its consideration of the
license application for the site. In re Aiken Cnty.,
No. 11-1271, 2012 U.S. App. LEXIS 16093, *4
(D.C. Cir. Aug. 13, 2012); Aiken County, 725 F.3d
255 at 267. In a 2-1 decision issued on August 13,
2013, the court concluded that the NRC was “simply
flouting the law” by refusing to proceed with the
license application. Id. at 259. The Court rejected
the NRC argument that it should not be forced to
continue the licensing process “because Congress
has not yet appropriated the full amount of funding
Nuclear Law Committee, April 2014
necessary for the Commission to complete the
licensing proceeding.” Id. (emphasis in original).
Despite the NRC’s speculation that Congress might
not, in the future, appropriate funds necessary to
complete the licensing process, the Court directed
the NRC to use available appropriated funds, which
amounted to at least $11.1 million at that time, to
proceed. Id. at 259–60.
Alternative Strategies, NRC, Response to the
NRC’s November 18, 2013 Request Concerning the
Supplemental Environmental Impact Statement, at
Encl. 1 (Feb. 28, 2014), available at http://
pbadupws.nrc.gov/docs/ML1405/
ML14059A556.pdf.
The mandamus order, an unusual remedy reserved
for extraordinary cases, became effective on
September 3, 2013. The state of Nevada petitioned
the court for a rehearing en banc before the entire
D.C. Circuit, which was denied on October 28,
2013. In re Aiken Cnty., No. 11-1271 (D.C. Cir.
Oct. 28, 2013). The final day to file a petition for
writ of certiorari in the Supreme Court was January
27, 2014.
The NRC’s position that it needs an additional nine
months just to finish the SER raises questions. It told
the Court it was essentially done over a year ago.
Final Brief for the Respondents at 15–16, In re
Aiken Cnty., No. 11-1271 (D.C. Cir. Feb. 13, 2012).
Claiming it needs nine months—almost a third of the
statutory time given for the entire licensing
process—just to finish the SER raises questions
about the NRC’s good faith compliance with the
Court’s mandamus order. Once the NRC issues the
outstanding volumes of the SER, it remains to be
seen whether the licensing proceeding will move
forward on the appropriated funds that remain,
whether Congress will appropriate additional funds
or legislate Yucca Mountain out of existence—
despite the enormous expenditures of taxpayer time
and money that have already been spent on the
site—or whether the In re Aiken County petitioners
will find themselves back before the Court
challenging the NRC’s failure to comply with the
Court’s August 3, 2013 order.
In light of the Court’s ruling, the NRC
Commissioners issued an order on November 18,
2013, directing NRC staff to restart limited Yucca
Mountain licensing activities. NRC Memorandum
and Order, CLI-13-08 (Nov. 18, 2013). In
particular, the Commission directed the staff “to
complete and issue the Safety Evaluation Report
(SER)” associated with DOE’s license application.
Id. at 2. The NRC recently indicated that the
remaining volumes of the SER may be completed by
January 2015. Letter from Allison Macfarlane,
Chairman, NRC, to Fred Upton, Chairman,
Committee on Energy and Commerce, U.S. House of
Representatives (Jan. 24, 2014) (transmitting Dec.
2013 monthly status report on the NRC’s activities
and utilization of unobligated carryover funds
appropriated from the Nuclear Waste Fund),
available at http://www.leg.state.nv.us/interim/
77th2013/Committee/StatCom/HLRW/Other/21February-2014/NuclearRegulatoryCommission
Dec2013MonthlyRpt.pdf.
The Commission’s order also asked DOE to prepare
a supplement to its environmental impact statement
(EIS) for the project. CLI-13-08 at 2. On February 28,
2014, Secretary of Energy Ernest Moniz stated that
DOE would not be preparing a supplemental EIS for
the project. Letter from Dept. of Energy, Josephine
Piccone, Director, Division of Spent Fuel
Nuclear Law Committee, April 2014
Where Does This Leave Yucca Mountain?
By upholding the NWPA as the “law of the land,”
the Court’s decision may change the political
dynamics regarding appropriating additional funds
for Yucca Mountain. The House may be more
inclined to aggressively defend its position on
appropriating funds from the Nuclear Waste Trust
Fund, which contains in excess of $25 billion, to
continue the licensing proceeding. Other senators
may also be more inclined to support the House
position on Yucca Mountain given the “political
cover” afforded by the Court’s opinion.
Barry M. Hartman and Tim Peckinpaugh are
partners and Christine A. Jochim is an associate
in the Washington, D.C., office of K&L Gates LLP,
and represented the three individual Washington
State residents in the mandamus action (In re
Aiken County, 725 F.3d 255).
15
The ABA Section of Environment, Energy, and Resources invites nominations for the 2014 ABA
Award for Excellence in Environmental, Energy, and Resources Stewardship. This award was
established in 2002 to recognize and honor the accomplishments of a person, organization, or group
that has distinguished itself in environmental, energy, and resources stewardship.
ominees must be people, entities, or
organizations that have made significant
accomplishments or demonstrated recognized
leadership in the areas of sustainable development,
energy, environmental, or resources stewardship.
This may include a major development in law or policy
that serves to enhance conservation, responsible
development, prudent resource use, and pollution
abatement or mitigation, or it may be a recognition for
a sustained period of leadership in the development
of law and policy in this area. The Award may also be
given for significant achievements in legal practice or
in business; including corporate charitable
contributions of funds, land, or resources; in written
N
16
articles; in teaching; in advocacy before courts,
agencies, legislators, or other institutions; or for
any other significant achievement that evidences
excellence in environmental, energy, and
resources stewardship. Although achievement or
leadership can have been exhibited over a number
of years or with respect to a single substantial
accomplishment, the Section is particularly
interested in nominations that can point to specific
milestones of achievement by those persons or
entities being nominated, with an emphasis on
creative thinking, diligence in execution of a plan
or program, or sustained progress in innovation or
leadership.
Nuclear Law Committee, April 2014