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Nuclear Waste Storage: Renewed Challenges Following the Rule on Continued Storage of Spent Nuclear Fuel

A continuous debate subsists on whether nuclear power should be used as an energy source, with advocates and opponents fiercely defending their views. Advocates support it on the grounds that it is environmentally sound since gases are not released into the atmosphere, it is efficient, and economically, the cost to fuel electricity is not nearly as expensive as other sources. Opponents, however, question if nuclear power is environmentally sound or cost-effective, arguing that radioactive waste produced and stored at plants is very dangerous and poses a constant threat to the environment and our nation’s security. Both groups would likely agree, however, that our nation’s use of nuclear power will not be discontinued in the long term and the persistent issue of dealing with waste storage will not subside.

In fact, production with nuclear power is likely to increase following a new rule the Nuclear Regulatory Commission (NRC) recently published concerning fuel storage, its disposal and the final licensing of power plants. The new rule, the Continued Storage of Spent Nuclear Fuel (Continued Storage Rule or new Rule), became effective on Oct. 20, 2014 and replaced the former Waste Confidence Rule (WCR). Under the WCR the NRC determined that nuclear waste could be stored safely onsite for up to 30 years past a reactor’s operating license until its eventual transport to a permanent repository. However, the new Rule significantly increases the permitted time waste can be stored onsite or at above-ground storage units. Yucca Mountain, a location in Nevada, was selected following the WCR to be the nation’s permanent repository site for storing all radioactive waste, but nearly 30 years following this statutory siting decision, the country is still without a permanent site.

Although it is highly debatable whether Yucca Mountain will ever actually serve as our nation’s permanent repository, efforts have been extended and manifested into storing some radioactive waste permanently. New Mexico houses the Waste Isolation Pilot Plant (WIPP), the nation’s only geologic repository available to store and permanently bury limited defensive nuclear waste.[1] Unfortunately, WIPP is not receiving any waste shipments following a fire and radioactive release earlier this year resulting in its closure.[2] Thankfully, no one was seriously injured during this incident, but the closure has impacted various states, and in particular, New Mexico considerably. The projected costs to begin operations are estimated to total approximately $242-$500 million with the earliest possible reopening date at some point in 2016.[3]

New Mexico may serve as a pilot for other states to develop best practices following the WIPP closure and given its role as the birthplace of the nation’s first atomic bomb under the Manhattan Project nuclear program.[4] Some of the issues resulting from the WIPP closure include the fear of job losses that will affect its citizens; potential health hazards to the community and WIPP employees; the balancing act of sharing information with the public in an effort to allay fears but also to ensure accuracy; the decision-making process of when to issue evacuation orders; general safety-related concerns to the public and the environment; inspection challenges for state regulators; continued storage, permitting and transportation issues; and the interaction with, access to records and information and relationship building with the U.S. Department of Energy (DOE).

Having recently participated in an intergovernmental meeting with the DOE concerning nuclear waste cleanup and storage, I have pondered in more detail the possible effect that the new Rule and the WIPP closure may have on states. Outstanding questions remain regarding what states should do if an unfortunate catastrophe occurs or whether states should consider the amount of resources and safety challenges posed in addressing spent nuclear fuel (SNF) storage or transportation in their states. Although the WIPP closure may not affect a substantial number of states or attorneys general directly, attention should still be given to this closure because an accident could disrupt normal operations in any state touched by defensive waste from federal sites or commercial waste from power plants. Implementation of the Continued Storage Rule could bring a new host of challenges to the states, and attorneys general might be interested in assessing their role and the states’ when pondering how the new Rule may impact them.

Continued Storage Rule May Change the Landscape

After a series of challenges dating as far back as the late 1970s by environmental groups and/or states on NRC action (concerning the licensing of nuclear power plants and their production of radioactive waste), the NRC, in response, has gone through various iterations of rulemaking and amendments. Subsequent to the first challenge, the NRC imposed the original WCR in 1984, which then became the standard for storing and disposing of nuclear waste generated at reactors.[5] The NRC remained steadfast that SNF could be stored safely onsite without significant environmental impacts for up to 30 years past the expiration of a reactor’s license – absent minor amendments it made from reviews of its decisions on licensing and a national repository.[6] It was expected from this 30-year standard that a permanent repository would be built within this time period, thus resulting in the nation’s waste being transported there and buried. However, in 2008, the NRC changed its position and decided for the first time in a revised WCR that SNF could be stored safely for at least 60 years past the expiration of a reactor’s license, if necessary, until a repository became available.[7] Upon publishing these findings in 2010, various states and groups sued the NRC in New York v. NRC, et al., arguing that it violated the National Environmental Policy Act (NEPA) with these changes.[8] The court ultimately held that the NRC overstepped its authority with this rulemaking and vacated the NRC revised WCR order.[9]

Following the New York decision, the NRC ceased issuing final licenses for power plants affected by the WCR and completed its generic environmental impact statement (GEIS) to replace its last revision to the WCR.[10] The GEIS studied the environmental impacts, consequences, and safety of SNF storage since a repository is not readily available. While conducting the GEIS, the NRC studied three timeframes where SNF could be safely stored beyond the expiration of a licensed reactor, if necessary, until a national repository becomes available. The SNF will be stored in pools at the reactor and/or at a separately constructed complex that holds waste on an interim basis (an independent spent fuel storage installation (ISFSI)) until it can be transported permanently to a repository.[11]

The GEIS studied the environmental impacts of SNF stored at a reactor and offsite at an ISFSI complex for three specific periods of time, including short-term (60 years), long-term (160 years), and an indefinite period of time for storage (forever if a repository is never built).[12] Ultimately, the NRC’s report concluded that SNF, both at and away from the reactor, could be stored up to an indefinite period of time if such storage was necessary. The NRC noted, however, that the short-term storage timeframe is the option most likely to be exercised because it anticipates having a national repository before this period concludes. Notwithstanding, the NRC notes the importance of continuing institutional controls, ensuring regulatory oversight, moving the SNF to an ISFSI following the requisite period of time, and reviewing the new Rule as necessary and in accordance with technological advances until a repository is available. Finally, the new Rule also permits the NRC to again begin final licensing for nuclear power plants and renewals.

Regardless of the NRC’s intentions to move the SNF to a national repository once one becomes available, there is nothing in sight to suggest that our nation is any closer to constructing a permanent repository. Hence, the SNF could possibly sit safely, according to the NRC, with regulated safeguards – indefinitely! Now that the new Rule has extended storage of radioactive waste well beyond the original 30 years to potentially forever, state attorneys general should be interested in how this sweeping change will impact their states.

Routinely, state government officials are stuck dealing with any waste storage problems (anticipated or not) that arise in their jurisdictions, and chief legal officers likely will be solicited to advise on and address any legal and policy disputes that surface. Storage management and monitoring expenses alone are exorbitant once a reactor is decommissioned. States would be expected to incur these expenses if businesses abandon their maintenance responsibilities. Such recalcitrant action on behalf of companies could result in the state taking on increased regulatory oversight or possibly bringing lawsuits against private entities or the federal government for failing to act or limiting liability. State resources and litigation could persist on an array of costly and potentially dangerous issues, such as the risk of leaks, corrosion and cracking and subsequent environmental harm, and possible security and public health concerns if a breach or security disaster occurred by an act of man or nature. Although these same challenges have persisted since implementation of the WCR, the new Rule may change the landscape in a more complicated way because of the extensively long-term storage period now permitted.

Potential Impact on States

States that have not yet considered how the new Rule will impact them might want to, merely because of the significant role nuclear power has as an energy source in this country. Presently, nuclear power plants generate approximately 20 percent of the nation’s electricity and 31 states have operating reactors.[13] Since 100 licensed nuclear power plants are available to operate and 34 states house 71 licensed ISFSI complexes, a considerable amount of waste requiring storage is being generated.[14] It is estimated that a nuclear power plant generates 20 metric tons of used nuclear fuel annually, and the industry in general produces approximately 2000-2300 metric tons of used fuel annually.[15] This waste is highly radioactive and depending upon the type of isotopes, it could remain radioactive for up to hundreds of thousands of years.[16]

The sheer volume of waste, in conjunction with the new Rule and no available national repository, results in an ever-increasing amount of SNF remaining at reactors for awfully long periods of time. These realities present a host of conundrums for states, particularly in the areas of assessing whether the long-term storage is in violation of NEPA, generally safe from security breaches, and whether it is safe for the environment or public health. Asking a court of law to address these outstanding issues is precisely what a combination of states has done jointly in response to the NRC new Rule and the GEIS.[17] Regardless of how states respond to or interpret the new Rule and its potential challenges, the current state of affairs offers states the perfect opportunity to assess what level of involvement they ought to have. Responding proactively to the extent feasible may help states avoid making hasty decisions following an accident or subsequent fallout similar to that which occurred after the WIPP fire.

Essentially, the new Rule maintains the status quo for waste storage since it will remain onsite or be sent to an installation without an available permanent repository or one becoming available in the foreseeable future. Given this posture, though, very little incentive may exist for certain stakeholders to firmly advocate for a national repository if an indefinite storage option is on the table. In the interim, however, while the waste remains at the sites, attention to safety should still be paramount given the volume and its toxicity. Attorneys general offices should also be at the forefront of this conversation because of the interplay between federal and state regulators in addition to the office serving as the primary agency solicited to initiate investigations by constituents and to field policy and legal questions.

To close, some short-term suggestions on areas states may want to explore as it contemplates whether and to what extent it should have a role following the new Rule include the following:

  • Scope of Legal Authority: Conducting an assessment of the full scope of a state’s current legal authority with respect to nuclear waste storage is the most important aspect in determining how much of a role an office may have or want to take. This element is critical even if your state does not house a nuclear reactor or installation unit because nuclear waste storage can still be transported over state lines en route to an installation unit (or, if an accident occurs, your state may still be affected due to its close proximity to another state). This assessment may render results that your state’s regulatory authority is too limited to comfortably guard against security concerns, public health, and/or environmental hazards. Also, states may be preempted by the federal government from taking desired legal action in some instances, particularly given that the NRC closely and almost exclusively regulates nuclear waste power plants. However, the NRC, pursuant to the Atomic Energy Act of 1954 in ¿ 274, has ceded portions of its licensing and regulatory authority to the states. Indeed, the state executive branch must be involved with these discussions and ultimately the governor must sign the agreement, but such agreements provide states more control over the treatment of waste stored in their states because these agreements specifically govern byproduct materials, source materials and certain quantities of special nuclear materials. At least 37 states have entered into such agreements, so this approach is not novel. Even if your state has such an agreement, it is timely to assess whether the agreement is current, legally sound, and satisfactorily meets your state's needs. Further information about these agreements can be found on the NRC website.[18]
  • Relationship Building: Often times when there is shared legal authority with the federal government, the federal government wants to maintain, or at least reserve, almost all oversight control. Therefore, an important step to minimize litigation, where possible, or limit flare-ups caused once litigation ensues is developing relationships with federal officials, particularly with the NRC and Departments of the Environment, Energy, and Transportation. The NRC has regional offices[19] where key state stakeholders, including attorneys general and their client agencies, may want to arrange a meeting to discuss concerns and build relationships. Such a meeting also provides a vehicle to learn about the agency’s plans and/or request that the agency supply reports on storage issues affecting one’s state. Entering into memoranda of understanding with various federal entities that benefit your state is also more likely to transpire from relationship-building efforts. The other and probably more critical relationship-building requirement involves the attorneys general offices meeting regularly with their client agency, primarily the state departments of environment or natural resources. Often, client agencies come to attorneys general for advice once a problem has developed or only during litigious times, but regular communication with clients keeps attorneys general informed about potential issues that could be addressed before they escalate into intractable, legal matters.
  • Regulatory Authority and Protocols: Multiple federal and state regulatory entities are often involved in the maintenance of power plants, waste disposal and storage. However, the states typically play an integral role in ensuring worker safety, conducting inspections, issuing permits, ensuring safety of storage and compliance with performance standards and federal legislation, and mandating compliance with any state-issued legislation affecting nuclear power plants. Therefore, it is important for states to take an interest in the regulatory space to verify if safety standards are being met, that environmental reviews and studies are conducted, and that inspections are conducted timely and meet current technological, industry standards. In order to meet state obligations, it is important for states to ascertain the full scope of which and how many federal and states agencies are involved with overseeing nuclear power plants and clearly understand the role of each when making policy decisions. Additionally, states should review their currently existing regulatory protocols and ensure that they are current and make adjustments as necessary to meet state needs concerning worker safety and general storage and environmental safety.
  • Disaster Preparedness: Although most states possess disaster preparedness models in planning for major catastrophes, it might be beneficial to review them for special policies devoted to addressing accidents from nuclear power plants even if such events are uncommon. Following the Fukushima tsunami accident in Japan, countries including the United States have begun to take more careful notice of the importance in intensive, advanced planning. With an increase in the storage time and the amount of waste being warehoused onsite or even at an installation, the potential for a nuclear power plant accident increases. Likely consequences from a nuclear accident will be irreversible, so it is critical to have updated disaster preparedness models that address a host of issues exclusive to this type of event, including but not limited to, evacuation concerns, public health and loss of life, clarity as to the roles and responsibilities for agencies, dissemination of information to the public, controlling environmental hazards, national security issues, and emergency response protocols.
  • Private Business Compliance and Standards: States should also reflect on the importance of advocating for adequate safeguards that protect the general public from bearing the costs should companies abandon their responsibilities, especially when plants are decommissioning. Handling spent nuclear fuel and decommissioning a plant are very costly, so it is critical that sufficient funds are available to meet federal and state requirements. If not, all of these costs could be passed off to the general public. It is also important to pay close attention to the manner by which companies owning nuclear power plants are structured, such as a limited liability company (LLC). Although operating as an LLC may make practical sense from a business perspective, this structure could be highly risky for states should this entity exercise its right to limit liability when problems arise or fail to maintain sufficient funds in a decommissioning trust. Attention may need to be devoted to whether policy changes are necessary to increase the required amount to be maintained in trusts and how to protect states if an LLC is not legally required to be sufficiently solvent. States may also want to consider their roles in protecting the public with tightened regulations or affirmative requirements so that states are not forced to bear the costs should companies become insolvent. Given that the new Rule permits storage to remain onsite or at an installation unit for an indefinite period of time, states should not be left to become owners of nuclear power plants involuntarily. Therefore, it is crucially important that states revise their standards, if necessary, to suitably hold companies liable for nuclear power plant operations and decommissioning.

[1] WIPP Recovery Update, U.S. Dep’t of Energy, (last visited Dec. 5, 2014).

[2] WIPP Path Forward Recovery Plan, U.S. Dep’t of Energy, (last visited Dec. 5, 2014).

[3] U.S. Dep’t of Energy, waste isolation pilot plant recovery plan 27 (Sept. 30, 2014), available at (last visited Dec. 5, 2014); Patrick Malone, Cost of reviving WIPP after leak could top $500 million, Santa Fe New Mexican, Oct. 1, 2014, available at (last visited Dec. 5, 2014).

[4] About Our History, Los Alamos Nat’l Lab., (last visited Dec. 5, 2014).

[5] Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,240 (Sept. 19, 2014) (to be codified at 10 C.F.R. pt. 51) [hereinafter Continued Storage].

[6] Id. at 56240-56241.

[7] Id. at 56241.

[8] Id. at 56241; N.Y. v. NRC, et al., 681 F.3d 471 (D.C. Cir. 2012). For those readers without access to an online legal database, the United States Court of Appeals for the District of Columbia Circuit decision may also be viewed at$file/11-1045-1377720.pdf (last viewed Dec. 5, 2014).

[9] See N.Y. v. NRC, 681 F.3d at 482-83.

[10] Continued Storage, supra note 5, at 56241.

[11] Id. at 56245.

[12] Id. at 56245. A full review of the 687 page generic environmental impact statement is available to review on the Nuclear Regulatory Commission’s website under document identifier, NUREG-1437, at (last viewed Dec. 5, 2014).

[13] U.S. Nuclear Regulatory Comm’n., 26 NRC 2014-2015 Information Digest 4, Nureg-1350 (2014), available at (last visited Dec. 5, 2014).

[14] Id.

[15] On-site Storage of Nuclear Waste, Nuclear Energy Inst., (last visited Dec. 5, 2014).

[16] Backgrounder on Radioactive Waste, U.S. Nuclear Regulatory Comm’n., (last visited Dec 5, 2014).

[17] Press Release, New York State Office of the Attorney General, A.G. Schneiderman and State Coalition to Challenge Rules Governing Continued Storage of Nuclear Waste in Our Communities (Oct. 27, 2014), (last visited Dec. 5, 2014).

[18] About NRC Agreement State Program, U.S. Nuclear Regulatory Comm’n., (last visited Dec. 5, 2014).

[19] About NRC Locations, U.S. Nuclear Regulatory Comm’n., (last visited Dec. 5, 2014).

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