BRATTLEBORO -- A unanimous decision by the five commissioners of the Nuclear Regulatory Commission to halt the licensing of new plants and the relicensing of operating plants won't affect the extended license issued in March 2011 to Vermont Yankee nuclear power plant.
"Our view is that the licenses that have been completed are done," said Neil Sheehan, spokesman for the NRC. "They are finalized. This court decision affects only the pending applications."
However, Vermont Deputy Attorney General Scott Kline said the commission's decision is being reviewed in advance of a filing at the end of the month by Entergy, which owns and operates Yankee.
"This would be something we would consider in connection with the filing of our response brief," said Kline, who is appealing a district court decision on behalf of Vermont Attorney General Bill Sorrell. In the decision, a federal judge ruled the Vermont Legislature had overstepped its authority when it forbid the Vermont Public Service Board from issuing a certificate of public good for the continued operation of the plant.
The PSB's hearings on the certificate were postponed while the case was in the district court and only recently have they been restarted.
In early June, an appeals court in Washington, D.C., threw out an NRC ruling that governed the storage of spent nuclear fuel at the nation's power plants.
"The court found the commission failed to evaluate future
The United States Court of Appeals for the District of Columbia ruled that a recent decision issued by the NRC that nuclear waste can be safely stored at nuclear power plants for 60 years or more rises to the level of a major federal action, which requires either an environmental impact statement or a finding of no significant environmental impact, neither of which the NRC conducted.
The court noted that the lack of progress on a permanent repository has caused considerable uncertainty regarding the environmental effects of on-site storage and also called into question the reasonableness of continuing to license and relicense nuclear reactors in light of the federal government's failure to secure a long-term permanent storage facility.
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 NRC's decision on Aug. 7 followed a motion filed on June 18 by 23 organizations asking the commissioners to freeze final licensing decisions until it has completed a rulemaking action on the impacts of storing spent fuel.
Diane Curran, of Harmon, Curran, Spielberg & Eisenberg, which represented the intervenors, said the commission's decision could put new licenses, applications for renewals and site approvals on hold for years.
"The licensing process can continue, but a new license can't be issued," she said. "There's no reason why the NRC can't keep reviewing other separate issues and make decisions, but any decisions that have to do with spent fuel disposal or storage they can't make."
The decision also means the NRC might have to look at spent fuel issues on a site-by-site basis.
"In the past, most issues having to do with spent nuclear fuel and its disposal have been dealt with generically," said Curran. "We think there are significant site-specific issues that need to be looked out."
Those issues might include the impact of a spent fuel pool fire, which can vary depending on whether a nuclear power plant is located in a rural or urban area.
The court of appeals decision and the NRC's response to it might come to bear during the Vermont Public Service Board's deliberations over whether Yankee should receive its certificate, said Sorrell in June.
"The board is reading the decision very closely."
Spent fuel is stored at Yankee in a spent fuel pool next to the plant's reactor and outside of the reactor building in massive casks.
David Lochbaum, the director of the Nuclear Safety Project of the Union of Concerned Scientists, said the court's direction that the NRC revisit its Waste Confidence Rule could affect all plants depending on what the NRC decides about long-term, on-site storage of spent fuel that by law and by contracts ought to be inside a federal repository.
"The NRC almost has to decide that on-site spent fuel pool storage is acceptable, but what on Earth would be done if the NRC determined it was unacceptable?" he asked.
"That study should have been done years ago, but NRC just kept kicking the can down the road," said Curran.
Former NRC Commissioner Peter Bradford, now at the Vermont Law School, told Energy Matters if a state were to ask the federal courts to reopen the license reviews of plants that have already received a 20-year extension, "it would not be a frivolous challenge. The industry will argue that until the court decision, the NRC's Waste Confidence framework was valid. And, therefore, the actions that it took using the Waste Confidence policy were sufficient.
"On the other hand," Bradford told Energy Matters, "people take the view that it is a simplistic defense and an updated form of the Waste Confidence Rule is not valid and, therefor, every action they took under that umbrella is vitiated. I don't know how the courts are going to sort that one out."
While the decision doesn't directly affect Vermont Yankee's license, it does affect other Entergy plants, such as Indian Point on the Hudson River, because its license renewal is still under review by the NRC.
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @shocked60.