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 Copyright © 2014. American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Send requests to Manager, Copyrights and Licensing, at the ABA, by way of www.americanbar.org/reprint. 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 Las Vegas, NV August 8-10, 2014 ABA Annual Meeting Sheraton Boston Hotel Boston, MA October 8-11, 2014 22nd Fall Conference Trump National Doral Miami Miami, FL For full details, please visit www.ambar.org/EnvironCalendar 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