Why the Nuclear Regulatory Commission (NRC) is

trying to get the public’s confidence in nuclear waste management:
NRC lost an appeal in 2012.
Southern Company’s new nukes at Plant Vogtle scraped by before
this happened, but there’s still no place for nuke waste
even from the existing Vogtle 1 and 2 reactors to go.
NRC has a revised Environmental Impact Statement (EIS) scheduled to be finished October 2014.

Here’s U.S. DC Circuit Court of Appeals decision
No. 11-1045 NY v. NRC 8 June 2012,

on the Court’s website
and

on NIRS’ website.

David Erickson and Mark Anstoetter wrote for Lexology 17 August 2012,

NRC suspends issuance of nuclear power plant licenses,

In response to the D.C. Circuit Court of Appeals’ decision to vacate
its rule regarding long-term storage of nuclear waste, New York v.
Nuclear Regulatory Commission, No. 11-1045 (D.C. Cir. 6/8/12), the
Nuclear Regulatory Commission (NRC) has agreed to suspend issuance
of licenses until it resolves the issues the court identified. In re
Calvert Cliffs Nuclear Project, LLC, No. 52-016-COL (NRC 8/7/12).
Given the U.S. Department of Energy’s abandonment of the proposed
Yucca Mountain storage site, the court vacated NRC ‘s determinations
that permanent safe storage for spent nuclear fuel would be
available “when necessary” in the future and that spent
fuel could be stored safely beyond a reactor’s life using a spent
fuel pool and on- or off-site dry cask systems.

NRC’s decision to suspend issuance of permits covers more than 20
pending permit actions. It does not suspend processing of
applications for new nuclear plants or renewal licenses for existing
plants, but does prevent issuance of a final permit in those matters
for the time being. According to the commission, it is considering
all available options to resolve issues of waste confidence and may
pursue a generic approach or implement site-specific actions
relating to waste confidence. NRC has also confirmed that it will
solicit public comments for any generic determinations, which would
be made in an environmental assessment or an environmental impact
statement. Any case-by-case decisions could be challenged using
existing NRC appeal mechanisms.

NRC 7 August 2012,

Memorandum and Order CLI-12-16,

We have received a series of substantively identical petitions to
suspend final licensing decisions, and requesting additional related
relief, in the captioned matters.¹ As
discussed below, we grant the requests in part and deny the requests
in part.

¹
See, e.g., Petition to Suspend Final Decisions in All Pending
Reactor Licensing Proceedings Pending Completion of Remanded Waste
Confidence Proceedings (June 18, 2012) (Petition). In addition,
Friends of the Earth, and Eric Epstein, on behalf of Three Mile
Island Alert, Inc., submitted the identical petition to the
Commission, without identifying a particular docket. For
convenience, page references in today’s decision correspond to the
Petition filed by Mindy Goldstein of the Turner Environmental Law
Clinic, in the Turkey Point combined license (COL) matter. In
response to the June 19, 2012, Order of the Secretary, we received
answers from the NRC Staff, the applicants in all captioned matters,
and a letter from the Nuclear Energy Institute (seeking to
participate as amicus curiae). As we did in the Callaway matter, we
consider the petitions, and take action, as an exercise of our
inherent supervisory authority over agency proceedings. We need not,
therefore, address procedural issues that would merit further
consideration in adjudications. See Union Electric Co. d/b/a Ameren
Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC __, __ (Sept. 9,
2011) (slip op. at 18-19 & n.65).

Recently, the U.S. Court of Appeals for the District of Columbia
Circuit found that the NRC had violated the National Environmental
Policy Act (NEPA) in issuing its 2010 update to the Waste Confidence
Decision and accompanying Temporary Storage
Rule.² The court vacated both the Decision
and the Rule, and remanded the case for further proceedings
consistent with the court’s opinion.³ In
response to the court’s decision, the petitioners request that we:
(1) suspend final licensing decisions in reactor licensing cases,
pending the completion of our action on the remanded Waste
Confidence proceeding; (2) provide an opportunity for public comment
on any generic determinations that we may make in either an
environmental assessment (EA) or environmental impact statement
(EIS); and (3) provide at least sixty days to seek consideration in
individual licensing cases of any site-specific concerns relating to
the remanded proceedings.⁴

²
New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). See generally Final
Rule, Consideration of Environmental Impacts of Temporary Storage of
Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032
(Dec. 23, 2010); Waste Confidence Decision Update, 75 Fed. Reg.
81,037 (Dec. 23, 2010).

³
In particular, the court struck down the Waste Confidence Decision’s
“Finding 2,” (reasonable assurance exists that
sufficient geologic repository capacity will be available for
disposal of highlevel waste and spent nuclear fuel “when
necessary”), and “Finding 4” (reasonable assurance
exists that, if necessary, spent fuel can be stored safely without
significant environmental impacts beyond a reactor’s licensed life
for operation, in a combination of storage in its spent fuel pool
and either an onsite or offsite dry cask storage system).

⁴
See Petition at 3-4, 10-12.

Waste confidence undergirds certain agency licensing decisions, in
particular new reactor licensing and reactor license
renewal.⁵ Because of the recent court
ruling striking down our current waste confidence provisions, we are
now considering all available options for resolving the waste
confidence issue, which could include generic or site-specific NRC
actions, or some combination of both. We have not yet determined a
course of action. But, in recognition of our duties under the law,
we will not issue licenses dependent upon the Waste Confidence
Decision or the Temporary Storage Rule until the court’s remand is
appropriately addressed.⁶ This
determination extends just to final license issuance; all licensing
reviews and proceedings should continue to move
forward.⁷

The petitioners seek assurance that they will be able to participate
in future NRC proceedings on waste confidence. We hereby provide
that assurance. The public will be afforded an opportunity to
comment in advance on any generic waste confidence document that the
NRC issues on remand—be it a fresh rule, a policy statement,
an EA, or an EIS.⁸

⁵
See 10 C.F.R. § 51.23(b).

⁶
See NRC Staff’s Answer to Petition to Suspend Final Decisions in all
Pending Reactor Licensing Proceedings Pending Completion of Remanded
Waste Confidence Proceedings (June 25, 2012), at 4 (Staff Answer)
(pointing to a number of factors that bear upon consideration of the
requested relief but also stating that no final decision to grant a
combined license, or initial or renewed operating license should be
made “until the NRC has appropriately dispositioned the issues
remanded by the court”).

⁷
The petitioners expressly state that they do not seek suspension of
ongoing adjudications. Petition at 4. Consistent with our ruling in
Callaway, we agree that it is in the public interest for
adjudications to proceed, except for contentions associated with
waste confidence issues, as discussed infra. See Callaway, CLI-11-5,
74 NRC at __ (slip op. at 25-27). Petitioners also expressly state
that they do not seek “any change in the schedules for the NRC
Staff’s review of reactor license applications.” Petition at
4. Likewise, we see no need for the Staff to change its review
schedules other than as may be necessary to address waste confidence
issues.

⁸
See Pa’ina Hawaii, LLC, CLI-10-18, 72 NRC 56, 93 (2010). See
generally 10 C.F.R. § 51.73 (requiring a comment period for draft
EISs and supplemental EISs). See also Staff Answer at 4 & n.4.

To the extent that the NRC takes action with respect to waste
confidence on a case-bycase basis, litigants can challenge such
site-specific agency actions in our adjudicatory
process.⁹ In this vein, we and the boards
are now in receipt of a number of new contentions and associated
filings concerning waste confidence.¹⁰

⁹
But see Potomac Electric Power Co. (Douglas Point Nuclear Generating
Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974)
(“[L]icensing boards should not accept in individual license
proceedings contentions which are (or are about to become) the
subject of general rulemaking by the Commission.”).

¹⁰
See Intervenors’ Motion for Leave to File a New Contention
Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste
at Proposed Fermi 3 Nuclear Power Plant (July 9, 2012); Motion to
Reopen the Record for William States Lee III Units 1 and 2, together
with Intervenors’ Motion for Leave to File a New Contention
Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste
at William States Lee III Units 1 and 2 (dated July 9, 2012, filed
July 10, 2012 (additional declarations filed July 11, 2012); Beyond
Nuclear Motion for Leave to File a New Contention Concerning
Temporary Storage and Ultimate Disposal of Nuclear Waste at Grand
Gulf Unit 1 (July 9, 2012); Beyond Nuclear Motion for Leave to File
a New Contention Concerning Temporary Storage and Ultimate Disposal
of Nuclear Waste at Grand Gulf Unit 3 (July 9, 2012); Intervenors’
Motion for Leave to File a New Contention Concerning Temporary
Storage and Ultimate Disposal of Nuclear Waste at Davis-Besse
Nuclear Power Station (July 9, 2012); Intervenors’ Motion for Leave
to File a New Contention Concerning Temporary Storage and Ultimate
Disposal of Nuclear Waste at Turkey Point Nuclear Power Plant (July
9, 2012); Citizens Allied for Safe Energy, Inc. Motion for Leave to
File a New Contention Concerning Temporary Storage and Ultimate
Disposal of Nuclear Waste at Turkey Point Nuclear Power Plant (dated
July 9, 2012, filed July 10, 2012); Intervenors’ Motion for Leave to
File a New Contention Concerning Temporary Storage and Ultimate
Disposal of Nuclear Waste at Comanche Peak Nuclear Power Plant (July
9, 2012); Intervenors’ Motion for Leave to File a New Contention
Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste
at Seabrook Station, Unit 1 (July 9, 2012); San Luis Obispo Mothers
for Peace Motion for Leave to File a New Contention Concerning
Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at
Diablo Canyon Nuclear Power Plant (July 9, 2012); NC WARN’s Motion
to Reopen the Record and Admit Contention Concerning Temporary
Storage and Ultimate Disposal of Nuclear Waste at the Shearon Harris
Nuclear Power Plant (July 9, 2012); Intervenors’ Motion for Leave to
File a New Contention Concerning Temporary Storage and Ultimate
Disposal of Spent Reactor Fuel at Levy Nuclear Power Plant (July 9,
2012); Petition for Intervention to File a New Contention Concerning
Temporary Storage and Ultimate Disposal of Nuclear Waste at STP
Units 1 & 2 (July 9, 2012); Intervenors’ Motion for Leave to File a
New Contention Concerning Temporary Storage and Ultimate Disposal of
Nuclear Waste at South Texas Units 3 & 4 (July 9, 2012);
Intervenors’ Motion for Leave to File a New Contention Concerning
Temporary Storage and Ultimate Disposal of Nuclear Waste at
Bellefonte (July 9, 2012); Southern Alliance for Clean Energy’s
Motion for Leave to File a New Contention Concerning Temporary
Storage and Ultimate Disposal of Spent Reactor Fuel at Watts Bar
Unit 2 (July 9, 2012); Intervenor’s Motion for Leave to File a New
Contention Concerning Temporary Storage and Ultimate Disposal of
Nuclear Waste at Callaway Nuclear Power Plant (July 9, 2012); Motion
to Reopen the Record for North Anna Unit 3, together with
Intervenors’ Motion for Leave to File a New Contention Concerning
Temporary Storage and Ultimate Disposal of Nuclear Waste at North
Anna Unit 3 (dated July 9, 2012, filed July 10, 2012).

The Petition
was not filed in the Indian Point, Victoria County, or Limerick
dockets. We have, however, received new contentions in those ongoing
adjudications. See Hudson River Sloop Clearwater, Inc.’s Motion for
Leave to Add a New Contention Based Upon New Information and
Petition to Add New Contention (July 9, 2012); State of New York,
Riverkeeper, and Clearwater’s Joint Motion for Leave to File a New
Contention Concerning the On-Site Storage of Nuclear Waste at Indian
Point, together with State of New York, Riverkeeper, Inc., and
Hudson River Sloop Clearwater’s Joint Contention
NYS-39/RK-EC-9/CW-EC-10 Concerning the On-Site Storage of Nuclear
Waste at Indian Point (July 8, 2012); Texans for a Sound Energy
Policy’s Motion to Reinstate Contentions TSEP-ENV-17 and
TSEP-ENV-18, or in the Alternative for Leave to File a New
Contention (July 9, 2012, amended July 10, 2012); Joint Motion to
Dismiss Texans for a Sound Energy Policy’s Motion to Reinstate
Contentions and for Leave to File a New Contention, and to Establish
a Schedule for Future Submissions (July 13, 2012); NRDC’s Motion for
Leave to File a New Contention Concerning Temporary Storage and
Ultimate Disposal of Nuclear Waste at Limerick, together with NRDC’s
Waste Confidence Contention (July 9, 2012, errata filed July 9 and
10, 2012). These three cases have been added to the caption of this
decision for the purpose of providing guidance on all new
contentions that have been filed on this topic. Three licensing
boards have issued case management orders relating to the new
contentions. See Order (Extending Time to Answer Motion to Admit New
Contention) (July 26, 2012) (unpublished) (Callaway license
renewal); Order (Granting Joint Motion to Dismiss and Setting
Schedule) (July 24, 2012) (unpublished) (Victoria County early site
permit); Order (Extending Time to Answer Motion to Admit New
Contention) (July 17, 2012) (unpublished) (Bellefonte COL).

In view of the special circumstances of this case, as an exercise of
our inherent supervisory authority over adjudications, we direct
that these contentions—and any related contentions that may be
filed in the near term—be held in abeyance pending our further
order.¹¹

¹¹
Should we determine at a future time that case-specific challenges
are appropriate for consideration, our normal procedural rules will
apply. See Callaway, CLI-11-5, 74 NRC at __ (slip op. at 32-36).

IT IS SO ORDERED.

For the Commission

NRC SEAL

Dated at Rockville, Maryland,

this 7th day of August,²⁰¹²

/RA/

---

Annette L. Vietti-Cook

Secretary of the Commission

-jsq