A nuclear spent fuel pool. (photo: NRCgov)

The Nuclear Regulatory Commission acted improperly when it failed to consider all the risks of storing spent radioactive fuel onsite at the nation’s nuclear power facilities, so ruled a federal court on Friday.

In a unanimous ruling (PDF), a three-judge panel of the US court of appeals for the District of Columbia found that the NRC’s “Nuclear Waste Confidence Decision”–the methodology used for evaluating the dangers of long-term waste storage–was woefully inadequate:

[The Nuclear Regulatory Commission] apparently has no long-term plan other than hoping for a geologic repository. . . . If the government continues to fail in its quest to establish one, then SNF (spent nuclear fuel) will seemingly be stored on site at nuclear plants on a permanent basis. The Commission can and must assess the potential environmental effects of such a failure.

Writing for the court, Judge David Sentelle made no bones about the shortcomings of the NRC’s magical, one-size-fits-all method of assuming a future solution for the nuclear waste storage crisis. Spent fuel “poses a dangerous long-term health and environmental risk,” he said.

The suit was brought by the attorneys general of Connecticut, New Jersey, New York, and Vermont, in coordination with the Prairie Island Indian Community of Minnesota and environmental groups represented by the National Resources Defense Council.

The decision harshly criticized regulators for evaluating plant relicensing with the assumption that spent nuclear fuel–currently stored onsite in pools and dry casks–would be moved to a central long-term waste repository. As discussed here before, the only option seriously explored in the US was the Yucca Mountain site in Nevada. After years of preliminary construction and tens of millions of dollars of dollars spent, Yucca was determined to be a bad choice for the waste, and the Obama administration’s Department of Energy and the NRC halted the project.

Despite the wishful reporting of some nuclear advocates, the Yucca repository is nowhere near ready, and even if it were an active option, the facility would be many years and maybe as much as $100 million away from completion. Still, the nuclear industry and its acolytes have challenged the administration to spend any remaining money in a desperate attempt to keep alive the fantasy of a solution to their waste crisis.

Such zombified hopes, however, do not qualify as an actual plan, according to the courts.

The judges also chastised the NRC for its generic assessment of spent fuel pools, currently filled many times over capacity at nuclear plants across the United States. Rather than examine each facility and the potential risks specific to its particular storage situation, the NRC had only evaluated the safety risks of onsite storage by looking at a composite of past events. The court ruled that the NRC must appraise each plant individually and account for potential future dangers. Those dangers include leaks, loss of coolant, and failures in the cooling systems, any of which might result in contamination of surrounding areas, overheating and melting of stored rods, and the potential of burning radioactive fuel–risks heightened by the large amounts of fuel in the storage pools and underscored by the ongoing disaster at Japan’s Fukushima Daiichi plant.

The decision has immediate ramifications for plants in the northeast seeking license extensions–most notably Entergy’s Indian Point facility, less than an hour’s drive from New York City, and their Vermont Yankee plant, which is operating despite seeing its original license expire in March.

New York’s Attorney General Eric Schneiderman released a statement, which reads, in part:

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.


And William Sorrell, Vermont’s AG, concurred:

This outcome illustrates how important it is for states to work together on environmental matters of national importance. Today’s decision is a major victory for New York, Vermont, and all other states that host nuclear power plants. The court confirmed what Vermont and other states have said for many years now—that the NRC has a duty to inform the public about the environmental effects of long-term storage of spent nuclear fuel, particularly when it is occurring at nuclear power plants that were never designed to be long-term storage facilities.

Indeed, plants were not designed nor built to house nuclear waste long-term. The design life of most reactors in the US was originally 40 years. Discussions of the spent fuel pools usually gave them a 60-year lifespan. That limit seemed to double almost magically as nuclear operators fought to postpone the expense of moving cooler fuel to dry casks and of the final decommissioning of retired reactors.

But, as reported here last fall, outgoing NRC chief Gregory Jaczko was exploring the possibility of using onsite storage for 200 to 300 years. How these metrics will change when the new head regulator, Allison Macfarlane, is confirmed is not yet known–but Macfarlane is on record as both a Yucca skeptic and an advocate for regional interim waste storage facilities. That plan, however, has many critics, as well, can only take fuel already cool enough to be removed from pools, and, of course, has not been so much as sited or designed, let alone constructed.

While no nuclear plants will close today as a result of this decision, it should also be noted–because some reports assume otherwise–that this finding does not mean Yucca Mountain must open, either. The ruling does, however, underscore the waste crisis–and it is a crisis–faced by the US nuclear industry. No only is it generating approximately 2000 tons of new waste every year that will need an eternal resting place, pools at some plants are so full it actually complicates refueling and maintenance (since fuel needs to removed from reactors and kept cool for both procedures). Plant operators are desperate to have the federal government take on the costs and the risks of waste storage.

But without anything even close to a plan for a long-term repository, the Nuclear Regulatory Commission cannot assume a solution, says the court. Instead, it must look at reality–something the entire country would best be advised to do when evaluating the future of this dirty, dangerous and expensive energy source.