NRC Sets Path Forward for Waste Confidence

Today, the Nuclear Regulatory Commission (NRC) shed some light on the path forward that the agency will follow on the issue of waste confidence. A Staff Requirements Memorandum (SRM) instructed the NRC staff to develop a generic environmental impact statement (EIS) to support an updated Waste Confidence Decision and Temporary Storage Rule. The Commission directed the staff to set a schedule to publish a final rule and EIS within 24 months. These actions are being taken in response to a June 2012 decision by the D.C. Circuit Court of Appeals, vacating the Waste Confidence Decision and Temporary Storage Rule and remanding the issue back to the agency for further environmental reviews.

Efficiency and timeliness are clear themes of today’s decision. The Commission emphasized that the staff should heavily draw upon the work already done in the existing Environmental Assessment for waste confidence, as well as EISs of other agencies, such as the Department of Energy’s “no action alternative” in the Yucca Mountain EIS. The Commission’s direction on this point is clear: the staff should not reinvent the wheel. And by reiterating the Council on Environmental Quality’s Guidance on Improving the Process for Preparing Efficient and Timely Reviews under the National Environmental Policy Act (NEPA), the Commission set the backdrop for the staff’s waste confidence efforts to be rigorous, but timely. Other elements of the Commission’s direction include an effort to promote efficiency by using an inter-office team consisting of the agency’s most accomplished NEPA practitioners to develop the EIS and an instruction for the staff to seek additional resources if necessary to meet the 24-month deadline.

Notably, the Commission did not fully support the portion of the staff’s recommendation urging that additional analyses be included in site-specific NEPA documents to address the Court’s remand. The Commission voting record indicates lukewarm support for this approach and the ultimate SRM states that although the Commission supports maintaining the option to conduct some environmental analyses of waste confidence issues on a site-specific basis, it should only be done in rare circumstances. The staff was instructed to inform the Commission before it embarks upon any site-specific analysis, and to explain why the analysis is necessary in advance of completing the generic EIS. This approach is logical in that it will allow the staff to focus its efforts on the generic EIS, but it certainly leaves open the question of whether and how particular licensing actions will be completed according to already-published schedules.

In another recent decision, CLI-12-16, the Commission declared that the agency would issue no final licenses on actions relying on the Waste Confidence Decision until the remanded issues had been resolved. However, it also made clear that the staff should proceed with licensing reviews and adjudicatory proceedings without altering existing schedules “other than as may be necessary to address waste confidence issues.” When read in the context of today’s decision, it is unclear whether this exception will ultimately swallow the rule. Questions that remain to be answered are whether the staff will issue final, site-specific EISs before the generic waste confidence EIS is complete, and whether the Commission will proceed with mandatory hearings on combined license applications as scheduled. How the Commission answers these questions could be key to deciphering the concrete impacts of today’s decision.