Deciphering the Waste Confidence Order

On Tuesday, the five-member Commission issued an Order directing the staff not to issue licenses for new reactors or to issue renewed licenses for existing reactors for the time being. The Order, understandably, caused a flurry of interest among news media, financial analysts, the nuclear industry and activists, all of whom scrambled to decipher the Order’s ramifications.

The potential impact is enormous – the Order affects licensing reviews for as many as 21 new reactors and 12 license renewals for existing reactors. It does not affect licenses already issued or renewed.

Let’s be clear: Tuesday’s Order was not a “Full Stop” to NRC’s licensing process. The Commission stated that licensing reviews should move forward– only final licensing was put on hold.

The Order comes in the context of a June 8 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck down the NRC’s waste confidence decision and rule, as updated in 2010.

“Waste confidence,” as we typically call it, is a generic finding that spent nuclear fuel can be safely stored at reactor sites for decades in either spent fuel pools or dry casks, and that a repository will be available for final disposal of the spent fuel.

Waste confidence is often mistaken for an authorization – permission to store fuel onsite for an extended period of time – but it is really a generic environmental finding that allows our environmental reviews for new reactors or reactor license renewal to proceed without considering the site-specific effects of spent fuel storage in each individual application’s environmental analysis.

The Appeals Court ruled that NRC should have analyzed the environmental consequences of never building a permanent waste repository, and that NRC’s discussion of potential spent fuel pool leaks or fires was inadequate.

As soon as the Court issued its ruling, two things happened: The NRC staff began analyzing the potential impacts on our licensing reviews and developing a proposed path forward to meet the Court’s requirements; and activist groups filed petitions requesting that the agency halt licensing until the waste confidence question is resolved.

Tuesday’s Order was in response to those petitions. Essentially, the Order represents a regulatory agency taking a deep breath while trying to decide the best way to satisfy the Court.

“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,” the Commission said in the Order. “We have not yet determined a course of action.” In the meantime, “we will not issue licenses dependent upon [waste confidence] until the court’s remand is appropriately addressed.” Licensing reviews and proceedings should continue, the Commission said.

The Commission also directed the various Atomic Safety and Licensing Boards conducting hearings on the applications to put in abeyance any new filings regarding waste confidence until the Commission gives further guidance on how to proceed. This ruling also applied to several motions to reopen and new petitions pending before the Commission.

Finally, the Commission gave its assurance that the public will be able to participate in the process as the agency moves forward on waste confidence. “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 [Environmental Assessment] or an [Environmental Impact Statement],” they said.

So everyone take a deep breath. Now we wait for the Commission to decide on a course of action to satisfy the Appeals Court’s ruling.

Dave McIntyre
Public Affairs Officer
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