Friday, June 8, 2012

Appeals Court "Game Changer" On Nuclear Waste In NY v. NRC

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1045, 11-1051, 11-1056, 11-1057. On Petitions for Review of Orders of the Nuclear Regulatory Commission (NRC). The Appeals Court explains that four states, an Indian community, and a number of environmental groups petition this Court for review of a NRC rulemaking regarding temporary storage and permanent disposal of nuclear waste. The Appeals Court rules, "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."
    The Appeals Court further concludes, "We recognize that the Commission is in a difficult position given the political problems concerning the storage of spent nuclear fuel. Nonetheless, the Commission's obligations under NEPA require a more thorough analysis than provided for in the WCD [Waste Confidence Decision] Update. We note that the Commission is currently conducting an EIS regarding the environmental impacts of SNF [spent nuclear fuel] storage beyond the sixty-year post-license period at issue in this case, and some or all of the problems here may be addressed in such a rulemaking. In any event, we grant the petitions for review, vacate the WCD Update and TSR [Temporary Storage Rule], and remand for further proceedings consistent with this opinion."
    New York Attorney General Eric T. Schneiderman called the decision "a landmark victory." He said the decision means that the NRC cannot license or re-license any nuclear power plant, including the Indian Point facility in Westchester County, until it examines the dangers and consequences of long-term on-site storage of nuclear waste. He said the appeals court found that the spent nuclear fuel stored on-site "poses a dangerous, long-term health and environmental risk."

    Schneiderman said, "This is a landmark victory for New Yorkers, and people across the country living in the shadows of nuclear power plants. We fought back against the Nuclear Regulatory Commission's rubber stamp decision to allow radioactive waste at our nation's nuclear power plants to be stored for decades after they're shut down -- and we won. The Court was clear in agreeing with my office that this type of NRC 'business as usual' is simply unacceptable. The NRC cannot turn its back on federal law and ignore its obligation to thoroughly review the environmental, public health, and safety risks related to the creation of long-term nuclear waste storage sites within our communities. Whether you're for or against re-licensing Indian Point and our nation's aging nuclear power plants, the security of our residents who live in the areas that surround these facilities is paramount. I am committed to continuing to use the full force of my office to push the NRC to fully evaluate -- and ensure -- the safety of Indian Point and our other nuclear plants."

    Schneiderman indicated that the Court of Appeals agreed with him that the NRC violated NEPA when it found -- without conducting the necessary studies -- that no significant safety or environmental impacts will result from storing highly radioactive nuclear wastes onsite at the more than 100 operating reactors around the country, including from the Indian Point reactors in Westchester County, for 60 or more years after the reactors are closed. He said the Court also found that the NRC violated the law when it found "reasonable assurance" that sufficient, licensed, off-site storage capacity will be available to dispose of nuclear power plant waste "when necessary."  Efforts to site the only nuclear waste storage facility in the United States, the Yucca Mountain Repository in Nevada, were suspended in 2010 and no replacement facility has yet been identified. The appeals court wrote that the NRC "apparently has no long-term plan other than hoping for a geologic repository." 

    The Natural Resources Defense Council (NRDC) one of the parties in the case said the decision will send the NRC back to square one to determine the safety and consequences of allowing nuclear reactors to produce and accumulate radioactive nuclear waste, including the potential environmental effects of the failure to develop a geologic repository. Geoff Fettus, senior project attorney in the nuclear program at NRDC said, "This is a game changer. This forces the Nuclear Regulatory Commission to take a hard look at the environmental consequences of producing highly radioactive nuclear waste without a long-term disposal solution. The court found: 'The Commission apparently has no long-term plan other than hoping for a geologic repository.'"

    Representative Ed Markey (D- MA) released a statement saying, "It comes as no surprise that the court has no confidence in NRC's waste confidence decision. The NRC relied on what seemed to be a faith-based methodology to conclude that highly radioactive nuclear waste can be left simply sitting in the giant swimming pools and parking lots in which it is currently stored for an additional 60 years. There was a collective failure on the part of both Congress and the Department of Energy to enable a credible, science-based search for a permanent nuclear waste repository."

    The Nuclear Energy Institute's (NEI's) Ellen Ginsberg, vice president and general counsel, made the following remarks in reaction to the ruling saying, "We are disappointed by the court's decision as we believe that the NRC supported its conclusions in the waste confidence decision. Nonetheless, we urge the commission to act expeditiously to undertake the additional environmental analysis identified by the court in the remand. We also encourage the agency to reissue the rule as soon as possible. We are pleased that the court specifically affirmed the agency's discretion to address the environmental issues in a generic fashion using an environmental impact statement or an environmental assessment with a finding of no significant impact."

    Ironically, on June 6, Senator Pete Domenici and Dr. Pete Miller hosted the fourth and final event in the Bipartisan Policy Center (BPC) Nuclear Initiative event series -- Near-Term Progress on Nuclear Waste Management: Implementing the Recommendations of the Blue Ribbon Commission. Both BPC Nuclear Initiative Co-Chairmen believe there is an urgent need to break the current stalemate on nuclear waste management in the United States and to develop an effective system to manage the back end of the nuclear fuel cycle. Senator Domenici was a member of the Blue Ribbon Commission on America's Nuclear Future (BRC) which released a final report in January 2012 detailing recommendations for creating a safe, long-term solution for managing and disposing of the nation's spent nuclear fuel and high‐level radioactive waste [See WIMS 2/2/12].

    Senators Jeff Bingaman (D-NM) and Lisa Murkowski (R-AK), the Chairman and Ranking Member of the U.S. Senate Committee on Energy and Natural Resources, discussed their ongoing collaboration with Senators Feinstein (D-CA) and Alexander (R-TN) the Chairman and Ranking Member of the Senate Appropriations Committee Subcommittee on Energy and Water Development, to develop comprehensive bipartisan legislation on nuclear waste management. With taxpayer damages and liability obligations projected to reach $50 billion by 2021, Senator Murkowski expressed concern that inaction is hurting both the future of nuclear power in the United States and our country's fiscal situation. Senator Murkowski acknowledged that, while many legislators are focused solely on the potential Yucca Mountain repository, she is also looking at new options and strategies, particularly those that achieve local support.
    Senator Bingaman discussed the key issues that their legislative proposal will address. He emphasized the importance of having a unified, systematic approach that links interim storage to a final repository. While both Senators Bingaman and Murkowski were pessimistic about the potential to pass such legislation in this Congress, they both stressed the importance of laying out a clear legislative path forward and advancing the process one step further. Building on a successful year-long event series, the BPC Nuclear Initiative will release a high-level report this summer.
    Access the complete opinion (click here). Access a release from the NY AG (click here). Access a release from NRDC (click here). Access a release from Rep. Markey (click here). Access a lengthy meeting summary and links to related information from the BPC (click here). [#Haz/Nuclear, #Energy/Nuclear, #CADC]
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American Petroleum Institute v. U.S. EPA

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1038. On Petition for Review of a Final Action of the United States Environmental Protection Agency. The Appeals Court indicates that American Petroleum Institute (API) petitions for review of a 2008 EPA regulation deregulating many "hazardous secondary materials" under the Resource Conservation and Recovery Act (RCRA). Petitioner contends that EPA erred in not including in the deregulation a category of hazardous secondary material called "spent refinery catalysts," which API's members generate during the petroleum refining process.
    The Appeals Court rules, "After the parties completed briefing, EPA issued a notice of proposed rulemaking that, if made final, would significantly amend EPA's 2008 decision. As a result, we deem this controversy unripe as a prudential matter and order the case held in abeyance, subject to regular reports on the status of the proposed rulemaking."
    The Appeals Court explains the history saying, "API filed a petition for review of the 2008 Rule on January 27, 2009. The Sierra Club also petitioned for review of the 2008 Rule. On September 10, 2010, EPA entered into a settlement agreement with the Sierra Club. EPA agreed to propose, by June 30, 2011, a new rule addressing certain issues raised by the Sierra Club and to take final action on that rule by December 31, 2012.
    "In July 2011, soon after the close of briefing in this case, EPA published a new notice of proposed rulemaking in accordance with the settlement agreement to address the issues raised by the Sierra Club. In the proposed rule, EPA effectively revised the 2008 Rule in two relevant ways. First, spent hydrotreating and hydrorefining catalysts would now also be eligible for the generator-controlled exclusion from the definition of solid waste. 76 Fed. Reg. 44,094, 44,152 (July 22, 2011). Second, EPA proposed to eliminate altogether the transfer-based exclusion for hazardous secondary materials; those materials would again be considered solid waste -- and thus hazardous waste -- even if transferred to third parties for recycling and would be subject to an alternative Subtitle C standard. 76 Fed. Reg. at 44,108-10, 44,151. If this proposed rule were to become final without revision, then, spent refinery catalysts would be treated the same as other hazardous secondary materials: eligible for the generator-controlled exclusion from the definition of solid waste, but not eligible for a transfer-based exclusion, which would cease to exist."
    Access the complete opinion (click here). [#Haz, #CADC]
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