New York v. Nuclear Regulatory Comm'n

• Decision Date: 08 June 2012
• Docket Number: Nos. 11–1045,11–1051,11–1057.,11–1056,s. 11–1045
• Citation: 681 F.3d 471
• Parties: State of NEW YORK, et al., Petitioners v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents. State of New Jersey, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

681 F.3d 471

State of NEW YORK, et al., Petitioners

v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.State of New Jersey, et al., Intervenors.

Nos. 11–1045, 11–1051, 11–1056, 11–1057.

United States Court of Appeals,District of Columbia Circuit.

Argued March 16, 2012.

Decided June 8, 2012.

On Petitions for Review of Orders of the Nuclear Regulatory Commission.

Monica Wagner, Deputy Bureau Chief, Office of the Attorney General for the State of New York, argued the cause for petitioners States and Prairie Island Indian Community Petitioners. With her on the briefs were Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, John J. Sipos and Janice A. Dean, Assistant Attorneys General, Barbara D. Underwood, Solicitor General, Brian A. Sutherland, Assistant Solicitor General of Counsel, Jeffrey S. Chiesa, Attorney General, Office of the Attorney General for the State of New Jersey, Kevin P. Auerbacher, Assistant Attorney General, Ruth E. Musetto, Deputy Attorney General, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea Schwartz, Assistant Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Robert Snook, Assistant Attorney General, and Joseph F. Halloran.

Geoffrey H. Fettus argued the cause for petitioners the Environmental Groups. With him on the briefs were Andres J. Restrepo and Diane Curran.

Robert M. Rader, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on the brief were John E. Arbab, Attorney, U.S. Department of Justice, Stephen G. Burns, General Counsel, U.S. Nuclear Regulatory Commission, and John F. Cordes Jr., Solicitor.

David A. Repka argued the cause for intervenors Nuclear Energy Institute, et al., in support of respondents. With him on the brief were Brad Fagg and Jerry Bonanno. Anne W. Cottingham entered an appearance.

Before: SENTELLE, Chief Judge, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Four states, an Indian community, and a number of environmental groups petition this Court for review of a Nuclear Regulatory Commission (“NRC” or “Commission”) rulemaking regarding temporary storage and permanent disposal of nuclear waste. We hold that the rulemaking at issue here constitutes a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact. We further hold that the Commission's evaluation of the risks of spent nuclear fuel is deficient in two ways: First, in concluding that permanent storage will be available “when necessary,” the Commission did not calculate the environmental effects of failing to secure permanent storage—a possibility that cannot be ignored. Second, in determining that spent fuel can safely be stored on site at nuclear plants for sixty years after the expiration of a plant's license, the Commission failed to properly examine future dangers and key consequences. For these reasons, we grant the petitions for review, vacate the Commission's orders, and remand for further proceedings.

I. Background

This is another in the growing line of cases involving the federal government's failure to establish a permanent repository for civilian nuclear waste. See, e.g., In re Aiken County, 645 F.3d 428, 430–31 (D.C.Cir.2011) (recounting prior cases). We address the Commission's recent rulemaking regarding the prospects for permanent disposal of nuclear waste and the environmental effects of temporarily storing such material on site at nuclear plants until a permanent disposal facility is available.

After four to six years of use in a reactor, nuclear fuel rods can no longer efficiently produce energy and are considered “spent nuclear fuel” (“SNF”). Blue Ribbon Commission on America's Nuclear Future, Report to the Secretary of Energy 10–11 (2012). Fuel rods are thermally hot when removed from reactors and emit great amounts of radiation—enough to be fatal in minutes to someone in the immediate vicinity. Id. Therefore, the rods are transferred to racks within deep, water-filled pools for cooling and to protect workers from radiation. After the fuel has cooled, it may be transferred to dry storage, which consists of large concrete and steel “casks.” Most SNF, however, will remain in spent-fuel pools until a permanent disposal solution is available. Id. at 11.

Even though it is no longer useful for nuclear power, SNF poses a dangerous, long-term health and environmental risk. It will remain dangerous “for time spans seemingly beyond human comprehension.” Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1258 (D.C.Cir.2004) (per curiam). Determining how to dispose of the growing volume of SNF, which may reach 150,000 metric tons by the year 2050, is a serious problem. See Blue Ribbon Commission, supra, at 14. Yet despite years of “blue ribbon” commissions, congressional hearings, agency reports, and site investigations, the United States has not yet developed a permanent solution. That failure, declared the most recent “blue ribbon” panel, is the “central flaw of the U.S. nuclear waste management program to date.” Id. at 27. Experts agree that the ultimate solution will be a “geologic repository,” in which SNF is stored deep within the earth, protected by a combination of natural and engineered barriers. Id. at ix, 29. Twenty years of work on establishing such a repository at Yucca Mountain was recently abandoned when the Department of Energy decided to withdraw its license application for the facility. Id. at 3. At this time, there is not even a prospective site for a repository, let alone progress toward the actual construction of one.

Due to the government's failure to establish a final resting place for spent fuel, SNF is currently stored on site at nuclear plants. This type of storage, optimistically labeled “temporary storage,” has been used for decades longer than originally anticipated. The delay has required plants to expand storage pools and to pack SNF more densely within them. The lack of progress on a permanent repository has caused considerable uncertainty regarding the environmental effects of temporary SNF storage and the reasonableness of continuing to license and relicense nuclear reactors.

In this case, petitioners challenge a 2010 update to the NRC's Waste Confidence Decision (“WCD”). The original WCD came as the result of a 1979 decision by this court remanding the Commission's decision to allow the expansion of spent-fuel pools at two nuclear plants. Minnesota v. NRC, 602 F.2d 412 (D.C.Cir.1979). In Minnesota, we directed the Commission to consider “whether there is reasonable assurance that an off-site storage solution [for spent fuel] will be available by ... the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safelyat the sites beyond those dates.” Id. at 418. The WCD is the Commission's determination of those risks and assurances.

The original WCD was published in 1984 and included five “Waste Confidence Findings.” Briefly, those findings declared that: 1) safe disposal in a mined geologic repository is technically feasible, 2) such a repository will be available by 2007–2009, 3) waste will be managed safely until the repository is available, 4) SNF can be stored safely at nuclear plants for at least thirty years beyond the licensed life of each plant, and 5) safe, independent storage will be made available if needed. Waste Confidence Decision, 49 Fed. Reg. 34,658, 34,659–60 (Aug. 31, 1984). The Commission updated the WCD in 1990 to reflect new understandings about waste disposal and to predict the availability of a repository by 2025. SeeWaste Confidence Decision Review, 55 Fed. Reg. 38,474, 38,505 (Sept. 18, 1990). The Commission reviewed the WCD again in 1999 without altering it. SeeWaste Confidence Decision Review: Status, 64 Fed. Reg. 68,005, 68,006–07 (Dec. 6, 1999).

In 2008, the Commission proposed revisions to the Waste Confidence Findings, and, after considering public comments, made revisions in 2010. Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010). That decision, under review in this case, reaffirmed three of the Waste Confidence Findings and updated two. First, the Commission revised Finding 2, which, as of 1990, expected that a permanent geologic repository would be available in the first quarter of the twenty-first century. As amended, Finding 2 now states that a suitable repository will be available “when necessary,” rather than by a date certain. Id. at 81,038. In reaching that conclusion, the Commission examined the political and technical obstacles to permanent storage and determined that a permanent repository will be ready by the time the safety of temporary on-site storage can no longer be assured. Id.

Finding 4 originally held that SNF could be safely stored at nuclear reactor sites without significant environmental effects for at least thirty years beyond each plant's licensed life, including the license-renewal period. Id. at 81,039. In revising that finding, the Commission examined the potential environmental effects from temporary storage, such as leakages from the spent-fuel pools and fires caused by the SNF becoming exposed to the air. Concluding that previous leaks had only a negligible near-term health effect and that recent regulatory enhancements will further reduce the risk of leaks, the Commission determined that leaks do not pose the threat of a significant environmental impact. Id. at 81,069–71. The Commission also found that pool fires are sufficiently unlikely as to pose no significant environmental threat. Id. at 81,070–71. As amended, Finding 4 now holds that SNF can be safely stored at plants for at least sixty years beyond the licensed life of a...