Coalition of states, groups, and Native American tribe press appeal against NRC's false "Nuclear Waste Confidence"

The lethal legacy of the Atomic Age, and we don't even know what to do with the first cupful. It's time to stop making it!A coalition of states (Connecticut, New York, and Vermont), along with the Prairie Island Indian Community, and an alliance of nine environmental groups (Beyond Nuclear, Blue Ridge Environmental Defense League, Missouri Coalition for the Environment, New England Coalition, Nuclear Information & Resource Service, Riverkeeper, San Luis Obispo Mothers for Peace, Southern Alliance for Clean Energy, and Sustainable Energy and Economic Development Coalition), plus Natural Resources Defense Council (NRDC) -- collectively, the Petitioners -- are pressing their appeals in federal court against the U.S. Nuclear Regulatory Commission's (NRC) 2014 "Continued Spent Fuel Storage Rule" and its associated GEIS (Generic Environmental Impact Statement).

Geoffrey H. Fettus, Counsel for NRDC, and Diane Curran of Harmon, Curran, Spielberg, and Eisenberg, as well as Mindy Goldstein of Turner Environmental Law Clinic, Co-Counsel for Beyond Nuclear et al., filed their INITIAL OPENING BRIEF FOR PETITIONERS on June 29th with the Court of Appeals for the District of Columbia Circuit, the second highest court in the land.

The State of Massachusetts has intervened on behalf of the Petitioners; the Nuclear Energy Institute, Entergy Nuclear, and Northern States Power have intervened on behalf of NRC; and the Sierra Club is participating as a Friend of the Court on behalf of the Petitioners.

The coalition of states and the Native American tribe has focused its appeal on NRC's violation of court orders in New York v. NRC (New York I, of 2012), by not carrying out an adequate analysis of the safety, health, and environmental risks of irradiated nuclear fuel storage pool fires and leaks.

The alliance of environmental groups has focused its appeal on NRC's violation of the National Environmental Policy Act (NEPA), as by not carrying out an adequate court-ordered analysis of the potential impacts if a permanent repository is never opened. The environmental coalition has also appealed NRC's violation of the Atomic Energy Act (AEA), by not making assurances that post-operations high-level radioactive waste storage in the short-term, long-term, and indefinitely forevermore, will be done safely.

The current appeals, dubbed New York v. NRC II, challenge numerous attempts by NRC to approve new reactor licenses, as well as old reactor license extensions, despite the still-unresolved legal issues. Examples include Beyond Nuclear's challenge against the Fermi 3 proposed new reactor in MI, and its challenge to the Davis-Besse license extension in OH. Toledo-based attorney Terry Lodge has represented Beyond Nuclear, and other environmental groups, in those interventions since 2009 and 2010, respectively.

On May 1, 2015, the NRC approved Fermi 3's COLA (combined Construction and Operation License Application), despite the unresolved Nuclear Waste Confidence issue. In addition, Beyond Nuclear and a coalition consisting of Citizens for Alternatives to Chemical Contamination, Citizen Environment Alliance of Southwestern Ontario (CEA), Don't Waste MI (DWM), and the Sierra Club Michigan Chapter, plan to appeal quality assurance (QA) and transmission corridor issues. Arnie Gundersen, Chief Engineer at Fairewinds Associates, Inc. in Burlington, VT, serves as expert witness for the environmental coalition on QA issues. The NRC's Atomic Safety and Licensing Board unsuccessfully requested permission to review NRC staff violations of NEPA vis a vis the transmission line corridor.

In recent months, the NRC ASLB panel overseeing the Davis-Besse license extension proceeding, at FirstEnergy Nuclear's request, has also moved to end the intervention, and toward ultimate NRC approval of the 2017-2037 extension. This, despite the environmental coalition's (including CEA, DWM, and Ohio Green Party) still unsolved contentions re: renewable energy alteratives to 20 more years at Davis-Besse, and the atomic reactor's severely cracked, and ever worsening, concrete containment shell.

Cynically and absurdly, NRC has flagrantly flouted the court orders stemming from New York v. NRC I. Rather than analyze the environmental impacts of further generation of forever deadly high-level radioactive waste at atomic reactors, NRC instead merely compared the efficiency of various administrative approaches towards completing the GEIS. NRC also changed the name of its now highly controversial "Nuclear Waste Confidence" policy, to "Continued Storage of Spent Nuclear Fuel." In doing so, NRC also ignored many thousands of oral and written public comments submitted by concerned citizens and environmental groups nationwide in 2013.

The Sierra Club will file its Friend of the Court brief in New York v. NRC II by July 6th. NRC's brief is due sometime in September. Petitioners' reply briefs to NRC's filing will be due sometime in November. Oral arguments will likely take place in 2016. Meanwhile, Petitioners have argued that final NRC licensing decisions, as at Fermi 3 and Davis-Besse, be held in abeyance, until New York v. NRC II is resolved.

Update on July 3, 2015 by admin

On July 3rd, Wallace L. Taylor, an attorney based in Cedar Rapids, IA, filed a Friend of the Court brief on behalf of the Sierra Club, in support of environmental petitioners in the New York v. NRC II federal court case.

For high-level radioactive wastes that already exist, Taylor called for Hardened On-Site Storage -- a position shared by hundreds of environmental groups, representing all 50 states.

Stating "one way to address the environmental impacts of the continued storage of radioactive waste is to stop making radioactive waste," Taylor called for present and future electricity needs to be met not by nuclear power nor fossil fuels, but rather efficiency and renewables. He cited numerous technical studies, including Dr. Arjun Makhijani of IEER's 2007 book Carbon-Free and Nuclear-Free: A Roadmap for U.S. Energy Policy, that show this alternative is quite reasonable.

Having called for the court to require NRC to take a hard look under NEPA at the mitigative value of NRC not licensing any more new reactors, nor extending licenses at old reactors, and even revoking licenses at existing reactors, Taylor concluded his Friend of the Court brief:

The storage and disposal of radioactive nuclear waste from spent nuclear fuel is a long-term problem posing grave risks to public health and the environment for which there is no solution. One alternative to this conundrum -- the Sierra Club believes it is the most important alternative -- is to stop producing any more radioactive waste. For the reasons stated above, NEPA [the National Environmental Policy Act] and common sense require that the GEIS [Generic Environmental Impact Statement] analyze this alternative.

Because this alternative has not been evaluated, the decision of the NRC in adopting the Continued Storage Rule should be reversed and remanded.

Update on July 31, 2015 by admin

On July 31st, Detroit Edison filed a response to Beyond Nuclear et al.'s motion to hold the proceeding in abeyance. The nuclear utility agreed with Beyond Nuclear that the Nuclear Waste Confidence aspects of the proceeding should be held in abeyance, pending resolution of New York v. NRC II. However, DTE emphasized its desire that the other matters on appeal be resolved ASAP.