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New York v. Nuclear Regulatory Commission

ELR Citation: 42 ELR 20124
Nos. No. 11-1045, (D.C. Cir., 06/08/2012)

The D.C. Circuit vacated NRC rulemakings concerning the temporary storage and permanent disposal of spent nuclear fuel. Four states, an Indian community, and a number of environmental groups filed a petition for review challenging NRC's "waste confidence decision" (WCD), which, among other things, determined that a permanent repository will be available “when necessary” rather than at a certain date and that spent nuclear fuel can be safely stored at plants around the country for at least 60 years beyond the licensed life of a plant. They also challenged the agency's temporary storage rule that was based on those findings. The court agreed with petitioners that the WCD was a final agency action necessitating either an EIS or FONSI. The WCD is a predicate to every decision to license or relicense a nuclear plant, and the findings made in the WCD are not challengeable at the time a plant seeks licensure. In addition, the NRC'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 NRC 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 60 years after the expiration of a plant's license, the NRC failed to properly examine future dangers and key consequences. The court therefore granted the petitions for review, vacated the NRC's orders, and remanded them for further proceedings.