Federal ruling could give state officials basis for denying Entergy license to operate Vermont Yankee
by Alan Panebaker vtdigger.org A decision issued Friday by the D.C. Circuit Court of Appeals could change the game for nuclear power plants for spent nuclear fuel.
What the ruling means for the Vermont Yankee facility and ongoing efforts to shutter the plant is up in the air, but some legal experts say the decision could give the state a more solid basis on which to deny an operating license.
In its decision, the court found that the Nuclear Regulatory Commission, the federal agency in charge of regulating nuclear safety, did not adequately analyze environmental effects when it determined in a ruling that spent nuclear fuel can be stored on site for 60 years after a plant’s licence expires. The court also found the agency failed to address the future effect of not establishing a spent nuclear fuel repository when it said a geologic repository for that radioactive waste would be available “when necessary.”
Vermont was a party in the lawsuit over the so-called Waste Confidence Decision along with the New York, Connecticut and New Jersey.
Vermont Attorney General Bill Sorrell said the decision underscores the federal government’s lack of planning for a comprehensive solution to the waste created by nuclear power plants.
“The court questions whether it is reasonable for the Nuclear Regulatory Commission to be issuing new licenses or relicensing plants given the federal government has dropped the ball on the storage of spent nuclear fuel,” Sorrell said.
In many cases, spent fuel stored in dry casks or pools, dubbed “temporary storage” has been used for decades longer than originally anticipated, and the federal government has failed to come up with a solution to the problem.
The U.S. Department of Energy recently withdrew its application for a repository at Yucca Mountain in Nevada, a plan that had been in the works for 20 years. The court said that the Nuclear Regulatory Commission needs to do an environmental analysis under the National Environmental Policy Act of the temporary storage of spent nuclear fuel in light of the fact that there is no national plan.
The court’s decision reads: “The lack of progress on a permanent repository has caused considerable uncertainty regarding the environmental effects of temporary SNF storage and the reasonableness of continuing to license and relicense nuclear reactors.”
Vermont is currently in litigation with Entergy Corp., the company that owns Vermont Yankee, over a law that requires legislative approval before the plant could store additional spent fuel derived after March 21, 2012, when its initial license expired.
Sorrell said the D.C. Circuit opinion will likely not have an effect on that case in the Second Circuit, but it could affect ongoing proceedings before the Vermont Public Service Board where Entergy is seeking a certificate of public good to continue operating.
Pat Parenteau, a law professor at Vermont Law School, said the case could have implications for Vermont Yankee.
“One of the surest grounds for the state to deny a certificate is to say there’s no solution to the waste disposal problem and we’re not going to allow any more,” he said.
A leading U.S. Supreme Court case, Pacific Gas & Electric Co. v. State Energy Resources, upheld a state moratorium on nuclear power plants based on adequate capacity for spent nuclear fuel.
In January, a federal judge struck down Vermont’s laws requiring legislative approval for a state certificate of public good and to store spent fuel because they were grounded in safety concerns — an area under the exclusive purview of the federal Nuclear Regulatory Commission.
The spent fuel storage issue could allow the state to sidestep the tainted “safety” problem, Parenteau said.
“As it relates to Yankee, shouldn’t the state as a matter of pure economics be able to take into account that they could be stuck with having to manage waste on site way longer than they intended?” he said.
Sandra Levine, senior attorney for the Conservation Law Foundation in Vermont, said she thinks the D.C. Circuit opinion could have some effect on the Vermont Yankee proceeding. The Conservation Law Foundation is a party in the Public Service Board relicensing proceeding.
“The court acknowledged the impact on the economics of storage of spent fuel and the failure to have a facility in place that can take spent fuel or any plan for its long-term storage,” Levine said. “The Public Service Board will need to consider that as part of its determination about the future of Vermont Yankee.”
The decision also calls into question a number of licenses, including Vermont Yankee’s, issued by the Nuclear Regulatory Commission based on the recent rule, Levine said. The state and an anti-nuclear group the New England Coalition are challenging that permit based on a separate issue related to state water quality certification.
Neil Sheehan, a public affairs officer for the NRC’s Region I office, said the agency’s office of general counsel is reviewing the decision and will respond based on the schedule allowed.
The agency has 45 days to seek an argument before the entire D.C. Circuit and 90 days to decide whether to seek review by the U.S. Supreme Court.
“We have to see what the implications are,” Sheehan said. “Whether or not it leads to change in the Waste Confidence Decision remains to be seen.”
A spokesman for Entergy Corp. said the effect of the decision on Vermont Yankee is unknown at this time.