ML12191A407

DC Circuit Waste Confidence Opinion 8 June 2012

ML12191A407
Person / Time
Site:	Limerick
Issue date:	06/08/2012
From:	State of NY
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22947, 11-1045, 137720, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12191A407 (21)

Text

U n i t e d S t a t e s C o u r t o f A p p e a l s F O R T H E D I S T R I C T O F C O L U M B I A C I R C U I T Arg ued Mar ch 16, 2012 Dec ided J une 8, 2012 No. 11-1045 S T A T E O F N E W Y O R K , E T A L., P E T I T I O N E R S v.N U C L E A R R E G U L A T O R Y C O M M I S S I O N A N D U N I T E D S T A T E S O F A M E R I C A , R E S P O N D E N T S S T A T E O F N E W J E R S E Y , E T A L., I N T E R V E N O R S Consolidated with 11-1051, 11-1056, 11-1057 On Petitions for Review of O rder s of the Nuc lear Reg ulatory Commi ssion Monica W agner , Deputy Bur eau Chief, Offic e of the At torney Gene ral for the State of New York, arg ued t h e ca u s e for petitioners States and Prairie I sland I ndian Communi ty Petitioners.

Wit h her on the briefs wer e Eric T. Sc hneiderman

, Attorney Gene ral, Offic e of the Attorney Gene ral for the State of New York, Jo h n J. Sipos and Janice A. Dean , Assistant Attorney s Gene ral, B arbara D. Underwood , Solicitor Gene ral, Brian A. Sutherland , As sistant Solicitor Gene ral of Counsel, USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 1 of 21 2 Jeffrey S. Chiesa , At t orney Gene ral, Offic e of the Attorney Gene ral for the State of New J erse y , Kevin P. Auerbacher

, Assistant Attorney General, Ruth E. Musetto , Deputy Attorney Gene ral, W illiam H. S o r rell , Attorney Gene ral, Offic e of the At t o rney Gene ral for the State of Ver mont, Thea Schwartz , Assistant Attorney Gene ral, George Jepse n , Attorney Gene ral, Offi ce of the Attorney Gene ral for the State of Connecticut, Robert Snook , Assi s tant Attorney Gene ral, and Joseph F.Halloran.Geoffrey H. Fettus arg ued the caus e fo r petitioners the Environmental Groups. Wit h him on the briefs wer e Andres J.Restrepo and Diane Curran

.Robert M. Rader , Senior Attorney , U.S. Nuclea r Reg ulatory Commi ssion, arg ued the cause for responde nts. Wit h him on the brief wer e John E. Arbab , Attorney , U.S. Depa rtment of J ustice, Stephen G. Burns , Gene ral Counsel, U.S. Nuclea r R egu l atory Commi ssion, and John F. Cordes Jr., Solicitor.

David A. Repk a arg ued the cause for intervenor s Nuclea r Energ y I nstitut e, et al., in suppor t of responde nts. Wit h him on the brief we re Brad Fagg and Jerry Bonanno. Anne W.Cotti ngham enter ed an a ppear ance.Be fore: S E N T E L L E , Chief Judge , T A T E L and G R I F F I T H , Circuit Judges

.Opinion for the Court filed by Chief Judge S E N T E L L E.S E N T E L L E , Chief Judge: Four states, an I ndian community , and a number of environmenta l g roups petition this Court for revie w of a Nuclea r Reg ulatory Commi ss i o n ("N RC" or"Commissi on") rulemaking reg ardin g temporar y storag e and p ermanent disposal of nuclea r waste. We hold that the USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 2 of 21 3 rulemaking at issue here constitutes a major fede ral action nece ssitating eit h er an environmenta l impact statement or a finding of no signific ant environmenta l impact. We further hold that the Commi ssion's evalua tion of the ri s k s o f spent nuclea r fuel is defic ient in two way s: First, in concluding that perma nent storag e will be available "whe n nece ssary ," the Commi ssion did not calculate the environmenta l eff ects of failing to secur e perma nent s t orag e-a possibili ty that cannot be ignor ed. Second, in deter mining that spent fuel can safe ly be stor ed on site at nuclea r plants for six ty y ear s afte r the expirat i o n of a p lant's license, the Commi ssion failed to proper ly exam i n e future dang ers and key conseque nces. For thes e reasons, we g rant the petitions for revie w, vac ate the Commission's orders, and re mand for f urther pr ocee dings.I. Background This is another in the g rowing line of case s inv o l v i ng the fede ral g overnme nt's failure to establish a perma nent repository for ci v i l ian nuclea r waste. See, e.g., In re Aiken County , 645 F.3d 428, 430-31 (D.C. Cir. 2011) (re counting prior case s). We addre ss the Commi ssion's rec ent rulemaking reg arding t he prospec ts for perman en t disposal of nuclea r waste and the environment al eff ects of temporar ily storing such materia l on site at nuclea r plants until a perma nent disposal fac ility is available. After four to six y ear s of use in a rea ctor, nuclea r fuel rods can no longe r eff iciently produce ener g y and are consi d ered"spent nuclea r fuel" ("S NF"). Blue Ribbon Commi ssion on Americ a's Nuclea r Future , Report to the Secre ta ry of Energy 10-11 (2012). Fue l rods are thermally hot when remove d from rea ctors and emit g rea t amounts of radia tion-enoug h to be fata l in minutes to someone in the immediate vicinity. Id. There fore , the rods are transfe rre d to rac ks within deep, wa ter-f illed pools USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 3 of 21 4 for cooling and to protec t worke rs from radia tion. After the fuel has coole d, it may be tra nsfer red to dry storag e, which consists of larg e concr ete and steel "ca sks." M o st SNF, howeve r, will rema in in spent-fue l pools until a perma nent disposal solution is available. Id. at 11. Even though it is no longe r useful for nuclear power , SNF poses a dang erous, long-term health and environmenta l r isk. I t will rema in dang erous "for time spans seeming ly bey ond human compre hension."

Nuclear Energy Inst., Inc. v. Envtl. P r o t.Agenc y , 373 F.3d 1251, 1258 (D.C. Cir. 2004) (per curia m). Deter mining how to dis p o se of the g rowing volume of SNF, which may rea ch 150,000 metric tons by the y ear 2050, i s a serious problem.

See Blue R i b b on Commi ssion, supra , at 14. Yet despite y ear s of "blue ribbon" c ommissi ons, cong ressional hear i ng s, ag ency repor ts, and site investiga tions, the United States has not y et develope d a perma nent solution.

That failure , decla red the most rec ent "blue ribbon" panel, is the "ce ntral flaw of the U.S. nuc lear waste ma nag ement prog ram to da te." Id. at 27. Ex perts ag ree that the ultimate solution will be a "g eolog ic repository

," in which SNF is stored deep with i n t h e ear th, protec ted by a combination of na tural and e ng ineer ed bar riers. Id. at ix , 2 9. T wenty y ear s of work on establishing such a repository at Yucc a Mountain was rec ently abandone d when the Depa rtment of Energ y decide d to wi thdraw its license application for the fac ility. Id. at 3. At this time, there is not even a prospec tive site fo r a repository , let alone prog ress toward the actua l construction of one

.Due to the g overnme nt's failure to establish a final re sting place for spent fuel, SNF is curr ently s t o re d on site at nuclea r plants. This ty pe of stor age , o ptimis tically labeled "tempora ry storag e," has been used for deca d es l o ng er than orig inally an t i cipated. The delay has require d plants to expand storag e pools and to pack SNF more de nsely within them. The lack of USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 4 of 21 5 prog ress on a perma nent repository has cause d considera ble uncer tainty reg arding the environmenta l eff ects of temporar y SNF storag e and the rea sonablene ss of continuing to license and relice nse nucle ar r eac tors.I n t h i s case, petitioners challeng e a 2010 update to the NRC's Waste Confidence Dec ision ("WCD"). The orig inal WC D came as the res ult of a 1979 decision by this court rema nding the Commi ssion's decision to allow the expansion of spent-fue l pools at two nuclear plants.

Minnesota v.

NRC , 602 F.2d 41 2 (D.C. Cir. 1979). I n Minnesota , we direc ted the Commi ssion to consider "whe ther there is rea sonable assura nce that an off-site storag e solution [for spent fuel] will be available by . . . the expiration of the plants' opera ting licenses, and if not, whether there is rea sonable assura nce that the fuel can be stored safe ly at the sites bey ond those dates." Id. at 418. The WC D is the Commiss ion's deter mination of those risks and assura nces.The orig inal WC D was published in 1984 and included five"Waste Confidence Finding s." Br iefly , those finding s decla red that: 1) safe di s p o s al in a mined g eolog ic repository is technica lly fea sible, 2) such a repository wi l l be available by 2007-2009, 3) waste will be manag ed safe ly until the repository is a vailable, 4) SNF can be stored safe ly at nuclea r plants for at least thirty y ear s bey ond the lic en s ed life of eac h plant, and 5)safe , independe nt storag e wi l l be made available if neede d. Waste Confidence Dec isi o n , 49 Fe d. Reg. 34,658, 34,659-60 (Aug. 31, 1984). The Commi ssion updated the WC D in 1990 to ref lect new understanding s about waste disposal and to predic t the availability of a repository by 2025. See Waste Confidence Dec ision Review, 55 Fe d. Reg. 38,474, 38,505 (Sept. 18, 1990). The Commi ssion revie wed the WC D ag ain in 199 9 wi t hout altering it. See Waste Confidence Dec ision Review

Status, 64 Fe d. Reg. 68,005, 68,006-07 (De

c. 6, 1999).

USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 5 of 21 6 I n 2008, the Commi ssion proposed revisions to the Waste Confidence Finding s, and, aft er considering public comments, made revisions in 2010. Waste Confidence Dec ision Update, 75 Fe d. Reg. 81,037 (De c. 23, 2010). That decision, under revie w in this case , rea ffirme d three of the Waste Confidence Finding s and updated two. First, the Commi ssion revised Finding 2, which, as of 1990, expected that a perma nent g eolog ic repository would be ava ilable in the first quar ter of the twenty

-first centur y. As amende d, Finding 2 now states that a suitable repository will be available "when necessar y ," rath er than by a date cer tain. Id. at 81,038. I n rea chin g t h at conclusion, the Commi ssion examined the political and t ec hnical obstacles to perma nent storag e and deter mined that a perma nent repository will be rea dy by the time the safe ty of temporar y on-site storag e can no long er be assure d. Id. Finding 4 orig inally held that SNF could be safe ly stored at nuclea r rea ctor sites without signific ant environmenta l eff ects for at least thirty y ear s bey ond eac h plant's licensed life, including the license-rene wal period. Id. at 81,039. I n revising that finding , the Commi ssion examin ed the potential environmenta l eff ects from temporar y storag e, such as leaka g es from the spent-fue l pools and fires cause d by the SNF becoming exposed to the air. Concluding that previous l eaks had only a negli g ible near-term health eff ect and that rec ent reg ulatory enhanc ements will further reduc e the risk of leaks, the Commi ssion deter mined that leaks do not pose the threa t of a signific ant environmental i mpact. Id. at 81,069-71.

The Commi ssion also found t hat pool fires a re suf ficiently unlikely as to pose no signific ant environmenta l threa t. Id. at 81,070-71.

As amende d, Finding 4 now holds that SNF can be safe ly stored at plants for at least six t y y ears bey ond the licensed life of a plant, instead of thirty. Id. at 81,074. I n addition, the Commi ssion noted in its final rule that i t wi ll be developing a plan for longe r-ter m stora g e and will conduct a f ull assessment USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 6 of 21 7 of the environmenta l impact of st o ra ge bey ond the six ty-y ear post-license period. Id. at 81,040. Ba sed on the revised WC D, t h e Commi ssion rele ased a new Tempora ry Storag e Rul e ("TSR") enac ting its conclusi o n s and updating its reg ulations acc ordi n gl y. See Consideration of Environmental I mpacts of Tempora ry Storag e of Spent Fue l afte r Cessation of Reac tor Oper at ion, 75 Fe d. Reg. 81,032 (De c. 23, 2010); 10 C.F.R.§ 51.23(a). Petitioners challeng e the amende d 10 C.F.R.§ 51.23(a) based on both F inding 2 a nd Finding

4. II. Th e Com m ission's Obligation s Under NEP A The National Environmental Policy Act of 1969 ("N EPA"), 42 U.S.C. § 4 3 2 1 et seq., require s fede ral ag encie s such as the C ommissi on to examine and repor t on the environment al cons eq u ence s of their actions. NEPA is an "esse ntially proce dural" statute intended to ensure "fully informed and well-considere d" decisionmaking , but not nece ssarily the best decision.

Vermont Y ankee Nuclear Power Corp. v. NRDC , 435 U.S. 519, 558 (1978). Unde r NEPA, ea ch fede ral ag ency must prepa re an Environmental I mpact Statement

("EI S") b efor e taking a "major Fe dera l action[] signific antly aff ecting the quality of the human environment."

42 U.S.C. § 4 3 32(2)(C). An age ncy can avoid prepa ring an EI S, howeve r, i f i t conducts an Environmental Assessm ent ("EA") and makes a Finding of No Significa nt I mpact ("F ONSI"). See Sierra Club v. Dep't of Transp., 753 F.2d 120, 127 (D.C. Cir. 1985); see also Theodore Rooseve lt Conservation P'ship v. Salazar , 616 F.3d 497, 503-04 (D.C. C ir. 2010) (ex plaining NEPA proce dures in detail).

The issuance or reissuanc e of a rea ctor license is a major fede ral action aff ecting the quality of the human environment.

See New Y ork v. Nuclear Regulatory Comm'n , 589 F.3d 551, 553 (2d Cir.2009).USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 7 of 21 8 The parties here dispute whether the WC D itself constitutes a major fede ral ac t i o n. To petitioners, the WC D is a major fede ral action beca use it is a predi ca te to ever y decision to license or relice nse a nuclea r plant, and the finding s made in the WC D are not challeng eable at the time a plant seeks licensure. The Commi ssion contends t h at beca use the WC D does not authorize the licensing of any nuclea r rea ctor or storag e fac ility , an d beca use a site-spec ific EI S will be conducte d for eac h fa ci l i t y at the time it seeks licensure , the WC D is not a majo r fede ral action. To the Commi ssion, the WC D is simply an answe r to this court's mandate in Minnesota to ensure that plants are only licensed while the NR C h as reasonable assuranc e that perma nent disposal of the resulting waste will be available. The Commi ssion also contends that the WC D constitute s an EA supporting the revision of 10 C.F.R. § 51.23(a), and beca use the EA found no signific ant environmen t al impact, an EI S is not require d. W e agre e with petitioners that the WC D rulemaking i s a major fede ral action requiring either a FO NS I or an EI S. The Commi ssion's contra ry arg ument trea ting the WC D as separ ate fro m the individual licensing decisions it enable s fails under controlling prec edent. We have long held that NEPA require s that "envir onmental issues be considere d at ever y important stag e in the decis i on making proce ss c oncer ning a particula r action." Calvert Clif fs'Coordinati ng Comm., Inc. v. Atomic Energy Comm'n , 449 F.2d 1109, 1118 (D.C. Cir. 1971). The WC D makes g ener ic finding s that have a prec lusive eff ect in all future licensing decisions-it is a pre-deter mined "stag e" of eac h licensing decision.

NEPA established the Council on E n vironmental Quality ("CEQ")"with authorit y t o issue reg ulations interpre ting it." Dep't of Transp. v.

Public Citi zen , 541 U.S. 752, 757 (2004). The CEQ has define d major fede ral actions to include actions with USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 8 of 21 9"[i]ndirec t eff ects, which are cause d by the action and are later in time or far ther remove d in di s t an ce, but are still rea sonably fore seea ble." 40 C.F.R. §§ 1508.8, 1508.18; Public Citi zen , 541 U.S. at 763; see also Andrus v.

Sierra Club , 442 U.S. 347, 358 (197 9) (holding that the CEQ's NEPA interpre tations are entitled to substantia l defe renc e); accord CTIA-W ireless Ass'n v. F C C , 466 F.3d 105, 115 (D.C. Cir. 2006). I t is not only rea sonably forse eable but eminently clea r that the WC D will be u sed to enable licensing decisions based on its finding s. T h e Commi ssion and the intervenor s contend that the s i t e-specific fac tors that differ from plant to plant can b e ch alleng ed at the time of a specific plant's licensi n g, b ut the WC D nonetheless re n d er s u n co n t es t ab l e gen er al co n c l u s i o n s ab o u t t h e environmenta l eff ects of plant licensure that will apply in ever y licensing decision.

See 10 C.F.R. § 51.23(b).

Petitioners' arg ument continues by su gg esting that the WC D lacks an EI S and must be reve rsed on that basis. Not nece ssarily. No EI S is require d if the ag ency conducts an EA and issues a FON SI sufficie ntly explaining why the proposed action will not have a signific ant environmenta l impact. Public Citi zen , 541 U.S. at 757-58. Thoug h we g ive considera ble defe renc e to a n ag ency's decision reg arding whether to prepa re an EI S, the ag ency must 1) "ac cura tely identif[y] t he rele vant environmenta l conce rn," 2) take a "har d look at the problem in prepa ring its EA," 3) make a "convinc ing case for its finding of no signific ant impa ct ," and 4) show that even if a signific ant impact will occ u r, "cha ng es or safe g uards in the projec t s ufficie ntly reduc e the impact to a minimum." Taxpaye r s o f Michigan Agains t Casinos v. N orton , 433 F.3d 852, 8 6 1 (D.C.Cir. 2006) (interna l quotation omitted).

An age n cy's decision not to prepa re an EI S must be set aside if it is "ar bitrary , capr icious, an abuse of discretion

, o r otherwise not in acc ordanc e with law." Public Citi zen , 541 U.S. at 763 (quoting 5 U.S.C. § 706(2)(A)

). USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 9 of 21 10 III. Availab ility of a P erm anent Repository Wit h t h es e NEP A obliga tions in mind, we turn to the Commi ssion's conclusion t hat a pe rmane nt repository for SNF wil l be available "whe n nece ssary." I n so concluding , the Commi ssion examined the historical difficulty

-now measure d in decade s rather than y ear s-in establishing a perma nent fac ility. See, e.g., Waste Confidence Dec ision Update, 75 F ed.Reg. at 81,049. Thoug h a number of commenter s sug g ested that the social and political barr iers to building a g eolog ic repository are too g rea t to conclude that a fac ilit y co u l d b e built in any rea sonable timeframe , the Commi ssion believes that the lessons lear ned from the Yucc a Mountain prog ram and the Blue Ribbon Commi ssion on Americ a's Nucle ar Future will ensure that, throug h "open and transpar ent" decisionmaking , a consensus would be re ache d. Id. Fur ther, the Commi ssion noted that the Nuclea r W as te Policy Act mandates a repository prog ram, demonstrating the continued commitment and obliga tion of the fede ral g overnme nt to pursue one. The scientific and experiential knowledg e of the past deca des, th e C o mmissi on explained, would en ab le the g overnme nt to cre ate a suitable repository by the time one is nee ded. Id. A.Petition ers arg ue that the Commi ssion's conclusion reg arding perma nent storag e violates NEPA in two way s: First, it fails to fully acc ount for the signific ant societal and political b ar ri er s that may delay or prevent t he opening of a repository. Second, the Commi ssion's conclusion t hat a perma nent repository will be available "whe n nece ssary" fails to define the term "nec essar y" in any meaning ful way and d o es not addre ss the eff ects of a failure to establish a repository in t i m e. Petitioners further contest the Commi s s ion's claim that the WC D constitutes an EA for perma nent d isposal, let alone the USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 10 of 21 11 EI S they contend is re quired he re. The Commission responds by contending that it "candidly acknow ledg ed" the societal and political challeng es, and cra fted t he WC D to acc ount for those risks. Over coming political ob s tacles is not the responsibility of the Commi ssion, it contends, and the NRC's conclusion that instit utional obstacles wi l l not preve nt a repository from being built is entitled to substantial d eferenc e. The Commi ssion contends that the selec tion of a prec ise date for Finding 2 is not require d by NEPA or any other laws g overning the NRC, and the Commi ssion used t h e "when nece ssary" formulation as far back as 1977. S ee NRDC v. Nuclear Regulatory Comm'n , 582 F.2d 166, 170, 175 (2d Cir. 1978).

As for examining the environmenta l ef fe cts of failing to establish a re pository , the Commiss ion c ontends that the WCD is an EA supporting the revision of 10 C.F.R. § 51.2 3 (a). No EI S is nece ssary reg arding perma nent disposal b ec ause, the Commi ssion arg ues, the WC D is not a major fede ral action, and conducting an EI S for this issue would be the sort of "abstract exercise" the Supreme Court declined to require in Baltimore Gas and Electric Company v. NRDC , 462 U.S. 87, 100 (1983). Fur ther, the Commi ssion's exis ti n g "Ta ble S-3" alre ady cons i ders the environmenta l eff ects of the nuclea r fuel cy cle g ener ally and found no signific ant impacts. There fore , the Commi ssion believes, no EI S is required.

B.The Commi ssion's "whe n nece ssary" finding is alr eady imperiled by our conclusion that the WC D is a m aj or fede ral action. We hold that the WC D must be vaca ted as to its revision to Finding 2 beca use the WC D fails to proper ly analy ze the environmenta l effe cts of its permane nt disposal conclusion.

USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 11 of 21 12 W h i le we share petitioners' considera ble skepticism as t o whether a perma nent fac ility can be built g iven the societal and political barr iers to selec ting a site, we need not resolve whether the C o m mission adequa tely considere d those barr iers. L ik ewise, we need not decide whether , as the Commi ssion contends, an ag ency's interpre tat i on of the political landsca pe surrounding its fie ld of expertise merits defe renc e. I nstead, we hold the WC D is defe ctive on far simpler g rounds: As we have deter mined, the WC D is a major fede ral action beca use it is used to allow the licensing of nuclea r plants. See s u p r a Part I I. There fore , the WC D require s an EI S or, alterna ti vely , an EA that conclude s with a finding of no si gn ificant impact. The Commi ssion did not supply a suitable FON SI here beca use it did not exa mine the environmenta l eff ects of failing to establish a repository. Even taking the Commi ssion's word that the WC D constitutes an EA for the p ermanent storag e conclusion, see Waste Confidence Dec ision Update, 75 Fe d. Reg. at 81,042, the EA is insufficient be cause a finding that "re asonable assura nce exis ts that sufficie nt mined g eolog ic repository capa city will be available when nece ssary ," id. at 81,041, does not descr ibe a probability of failu re s o low as to dismiss the potential conseque n ce s of such a failure.

Under NEPA, an age ncy must look at bot h the probabilit ies of pot entially harmful events and the conseque nces if those events come to p as s. See, e.g., Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, 799 (D.C. Cir.1975). An ag ency may find no signific ant impact if the probability is so low as to be "re mote and specula tive," or if the combination of probability and h ar m is sufficie ntly minimal. See, e.g., City of New Y ork v. Dep't of Trans p., 715 F.2d 732, 738 (2d Cir. 1983) ("The conce pt of overa ll risk incorpora tes the signific ance of possible adver se conseque nces discounted by the improbability of their occur rence."). Her e, a "re asonable assura nce" that perma nent s torag e will be available i s a far cry USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 12 of 21 13 from finding the likelihood of nonavailability to be "re mote and specula tive." The Commi ssion failed to exa m ine the environmenta l c onsequenc es of failing to e stablish a repository when one is neede d. The Comm i s s i on arg ues that its "Ta ble S-3" alre ady acc ounts for the environmenta l e ffe cts of the nuclea r fuel c y cle and fi n d s n o s ignif icant impact. Not so. Table S-3, like the Commi ssion itself, presu mes the exis tence of a g eolog ic repository. There fore , it cannot explain the enviro n m ental eff ects o f a fa ilure to secur e a perma nent fac ility. The Commi ssi o n als o complains that conducting a full analy sis reg arding perma nent storag e would be an "abstra ct exercise."

Perhaps the Commi ssion thinks so beca use it perc eives the require d analy sis to be of the eff ects of the perma nent repository itself. But we are focuse d on the effects of a failure to secur e perma nent storag e. The Commi ssion appar ently has n o long-term plan other than hoping for a g eolo gi c re p o sitory. I f the g ov er n m ent continues to fail in its quest to establish one, then SNF will seeming ly be s t o re d on site at nuclea r plants on a perma nent basis. The Commi ssion can and must asse s s t he potential environmenta l effe cts of such a failure. IV. Tem porary On-Site Storage of S NF I n concluding that SNF can safe ly be stored in o n-si te storag e pools for a period of six ty y ear s afte r the end of a plant's life, instead of thirty , the Commi ssion conducte d what it purports to be an EA, which found th at ex tending the time for storag e woul d have no signific ant environmenta l impact. See Waste Confidence Dec ision Update, 7 5 Fe d. Reg. at 81,074. T h i s analy sis was conducte d in g ener ic fashion by looking t o environmenta l risks acr oss t h e board at nuclea r plants, rathe r than by conducting a site-by-site analy sis of eac h specific nuclea r plant. Two key risks the Commi ssio n ex ami ned in its USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 13 of 21 14 EA wer e the risk of environmenta l harm due to pool leaka g e and the risk of a fire resulting from the fuel rods becoming exposed t o ai r. See id. at 81,069-71.

We conclude that th e C o m mission's EA and resulting FON SI are not supported b y s u b s t antial evidenc e on the rec ord beca use the Commi ssion failed to proper ly examine the risk of leaks in a forwa rd-looking fashion and failed to examine the potential conseque nces of pool fires.A.Petitioners challeng e the finding of no signific ant impact on two bases: First, petitioners arg ue that a g ener ic analy sis is simply inappropria te and that the Commi ssion was require d to look at eac h plant indi v i dually. A site-by-site analy sis is nece ssary , petitioners arg ue, beca use the risks of leaks and fires are aff ecte d by site-sp ec ific factors such as pool config uration, leak detec tion sy stems, the nature of SNF stored in the pool, and the location of the pool within the plant. Over all, petitioners ar gue that NEPA require s the C ommissi on to fully analy ze t h e environmenta l effe cts of on-site stora g e, and a g ener ic ana ly sis cannot f ulfill that statutory mandate.

Second, petitioners arg ue that even if g ene ric analy sis is appropr iate, the Comm i ssion's g ener ic EA in this case was insufficient.

They maintain that the Commi ssion did not adequa tely acc ount for leaks from on-site pools beca use the Commi ssion only looked at past leaks to see if they cause d environmenta l damag e, rathe r than examining the risks of future leaks. Al so, as petitioners point out, the Commi ssion's own studies have shown that previous leaks "did, or potentially co uld, impact g round-wa ter resour ces rela tive to establish ed EPA drinking water standards."

NR C, Liquid Radioactive Release Lessons Learned T ask Force Fin a l R ep ort 13 (2006). Petitioners also arg ue that the Commi ssion's analy sis of the USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 14 of 21 15 eff ects o f pool fires was defic ient beca use the Commi ssion declined to examine the conseque nces of po ol fires due to the low probability of such an occur renc e. I n petitioners' view, the C o m mission could only avoid examining the conseque nces of pool fires in a full E I S i f i t fo und the risk so low as to be"re mote and specula tive"-a finding the Commi ssion did not make. Finally , P etitioners contend that the Commi ssion co m p l etely failed to look at non-hea lth environmenta l fac tors such as eff ect s o n the Prairie I sland I ndian Communi ty's homeland, which is located near one of the pl ant s g overne d by the rule.

The Commi ssion responds by stating that its examination of past leaks proper ly demonstrated that the potent i al for environme n tal harm from leaka g e is neg ligible. The Commi ssion arg ues that the eff ects of past leaks h ave been shown to be quite minimal, and the Commi ssion's leaka g e task forc e has rec ommended tw enty-six specific measure s to minimi ze the risk even further. Also, the NR C ex erc ises oversig ht over the pools and will ensure that they do not become unsafe over the six ty-y ear perio d. W i t h reg ard to fires, the Commi ss i o n contends that it eng ag ed in an "exhaustive considera tion" of the risk and found that s u ch an event is extremely u n likely. I n the Commi ssion's view, a site-by-site analy sis of pool-fire risk is unnec essary beca use the Com m i ssion relied on studies which acc ounted for all of the varia tions cited by petitioners and essentially looked at the most dang erous combinations of site-spec ific fac tors. Even looking to a worst-c ase scena rio, the Commiss ion say s, the risk of fire s was still ex tremely low.Responding to petitioners' argume nt that the Commi ssion failed to deter mine that the risk of fires was "re mote and specula tive," the Commi ssion sug g ests that it did not dismiss the risk out of hand as "re mote and specula tive" but rathe r examined USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 15 of 21 16 it thoroug hly and found it to be so low that the conseque nces could not possibly overc ome the low probability. There fore , the Commi ssion did not need to conduct a full EI S for pool fires. Finally , the Commi ssion arg ues that petitioners did not raise the issue of non-hea lth impacts during the rulemaking , and thus they cannot r aise that issue on pe tition now.

B.Both the Supreme Court and t h i s court have endorse d the C o m m i s s i o n's l o n g s t a n d i n g p r a c t i c e o f c o n s i d e r i n g environmenta l issues throug h g ener al rulemaking in appropr iate circ umstances.

See, e.g., Baltimore Gas , 462 U.S. at 100 ("The g ener ic method chose n b y the ag ency is clea rly an appropr iate method of conducting the hard look re q u i red by NEPA."); see also Minnesot a , 6 0 2 F.2d at 416-17. Thoug h Baltimore Gas dealt with th e n u clear fuel cy cle itself, which is g ener ally focuse d on things that occur outside of individual plants, we see no rea son that a compre hensive g ener al analy s is would be insufficient to examine on-site risks that are essentially common to all plants. This is particula rly true gi v en the Commi ssion's use of conser vative bounding assumpt ions and the o p portunity for conce rned parties to raise site-spec ific differ ence s at the time of a specific site's licensing. Nonethele ss, whether the analy sis is g ener ic or site-by-site, it must b e t h o roug h and compre hensive. Even though the Commi ssion's a pplication of its technica l expertise demands the "most defe rential" trea tment by the courts, Baltimore Gas , 462 U.S. at 103, we conclude that the Commi ssio n h as failed to conduct a thoroug h enoug h analy sis here to mer it our defe renc e. 1.The Commi ssion admits in the WC D Update that there have been "seve ral incidents of g roundwa ter contamination USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 16 of 21 17 orig inating from leaking rea ctor spent fuel pools and associate d structure s." 75 F ed. Reg. at 81,070. The Commi ssion brushes awa y that conc er n b y s tating that the past leaks had only a neg ligible near-term health impact. Id. at 81,071. Even setting aside the f act that near-term health eff ects a re not the only ty pe of environmenta l impacts, the harm from past leaks-without more-tells us very littl e about the potential for f uture lea ks or the harm such leaks might portend. The WC D Update seeks to extend the period of time for which pools are considere d safe for storag e; there for e, a proper analy sis of the risks would nece ssarily look forward to examine the eff ects of the additional time in storag e, as well as examining past leaks in a manner that would allow the Commi ssion to rule out the p o s s i b ility that those l eaks wer e only harmless beca use of site-spec ific fac tors or even sheer luck. The WCD Update ha s no analy sis of t hose possibili ties other than to say that past leaks had "neg ligible"near-term health eff ects. Id. A stu d y o f t h e impact of thirty additional y ear s of SNF storag e must actua lly conce rn itself with the extra y ear s of storag e.The Commi ssion also notes that a tas kforc e has made rec ommendations for improvements to spent-fue l pools, whic h the NRC "has addre ssed, or is in the proce ss of addre ssing." Id. But those improvements are thus far un t es t ed , and we have no way of defe rring to the Commi ssion's conclusion that they will en s u re the absenc e of environmenta l harm. Finally , t h e Commi ssion ref ers to its monitoring and reg ulatory compliance prog ram as a b u ff er ag ainst pool deg rada tion. Id. That arg ument is ev en l ess availing beca use it amounts to a conclusion that leaks will not occur beca use the NR C is "on duty." Wit h full cre dit to t h e Commi ssion's considera ble enfor ceme nt and inspection eff orts , m er ely pointing to the compliance prog ram is in no way sufficie nt to support a scientific finding that spent-f u el pools will not cause a signific ant environment impact d u ri ng the extended storag e USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 17 of 21 18 period. This is particula rly true when the period of time cover ed by the Commi ssion's predic tions may extend to near ly a centur y for some f acilities.

Despite g iving our "most defe rential" trea tment to the Comm i s s i on's application of its technica l and scientific experti s e, we cannot rec oncile a finding that past leaks have been harmless with a conclusion that future leaks at all sites will be harmless as well. The Commi ssion's task here was to deter mine whether the pools could be considere d safe fo r an additional thirty y ear s in the future. That p as t leaks have not b een harmful with respe ct to g roundwa ter does not speak t o whether and how future leaks might occur , and what the eff ects of those leaks might be. The Commi ssion's analy sis of leaks, there fore , was insuffic ient. 2.Even though the Commi ssion eng ag ed in a more substantial analy sis of fires than i t did of l eaks, that analy sis is plag ued by a failure to examine the conseque nces of pool fires in ad d ition to the probabilities.

Petitioners, citing Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission , 869 F.2d 719, 739 (3d Cir. 1989), arg ue that the Commi s s i o n could only avoid conducting an EI S if it f ound the risk of fires to be "re mote and specula tive." The Commi ssion, citing Carolina Environmental Study Group v. United States , 510 F.2d at 799, arg ues that it did not ne ed to e x amine the conseque nces of fire s beca use it f ound the risk of fir es to be ve ry low. We disag ree with both parties. As s h o u l d be clea r by this point in our opinion, an ag ency conducting an EA g ener ally must examine both the probability of a g i v en h arm occur ring and the conseque nces of that harm if it does oc cur. O nly if the harm in question is so "re mote and specula tive" as to reduc e the USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 18 of 21 19 eff ect i ve probability of its occur renc e to zero may the ag ency dispense with the conseque nce s p o rt ion of the analy sis. See Limerick Ecology Action , In c., 869 F.2d at 739. But, contra petiti o n ers, the finding that the probability of a g iven harm is nonzero does not, by i t s el f, mandate an EI S: afte r the ag ency ex am i n es the conseque nces of the harm in proportion to the likelih o od of its occur renc e, the overa ll expected harm could s t i l l be insignifica nt and thus could support a FON SI. S ee Carolina Envtl. Study Grp., 510 F.2d at 799 ("Rec og ni t i o n o f the minimal probability of such an event is not eq u atable with nonrec og nition of its conseque nces."). Her e, howeve r, the Commi ssion did not underta ke to examine the conseque nces of pool fires at all. Depe nding on the weighing of t he probability and the c onsequenc es, an EI S may or m ay not be required, and such a deter mination would merit considera ble defe renc e. C.f., City of New Y ork , 715 F.2d at 751-52 (def err ing to an ag ency's weig hing of a "ca tastrophic" h arm ag ainst an "infinitesimal probability

"). But unless the risk is "re mote and specula tive,"the Commi ssion must put the weig hts on both sides of the scale befor e it can ma ke a de termination.

3.A s f o r petitioners' rema ining arg ument tha t th e Co mm is s io n did no t consider non-hea lth environmenta l eff ects, we ag ree with the Commi ssion that petitioners did not proper ly raise those issues in the rulemaking.

Petitioners essentially prese nt two non-hea lth impacts: decr ease in proper ty values and risk of harm to the Prairie I sland I ndian Communi ty's homeland.

The Tribe did mention its small siz e and cl o se proxi mity to the Prairie I sland Nuclea r Gene rating Plant, but it did not asser t specific ally how it might be h ar m ed by either the rulemaking itself or the licensing the rulemaking enable s. W i th reg ard to proper ty v alues, petitioners point to a study considering the economic impact of the I ndian Point plant. But that study actua lly USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 19 of 21 20 assumes a diminuti on in values cau s ed by curr ent plant opera tion and si m p l y extends it mathematica lly-it in no way asser ts whether or how any harm to proper ty values might occur n o r how that harm is rela ted to a chang e in the phy sic al environment.

Petitioners' failure to raise these objections to the ag ency waives the

m. See P ublic Citi zen , 541 U.S. at 764. We note, as did t h e Supreme Court in Public Citi zen , that primary responsibility for compliance with NEPA lies with the Commi ssion, not petitioners; nonetheless, the non-hea lth eff ects alluded to here are not "so obvious that there is n o n ee d fo r a commentator to point them out." Id. Gi v en, howeve r, t hat we are inval i d ati ng the Commi ssion's conclusions as a whole, petitioners will have the opportunity to proper ly raise and clar ify these c oncer ns on remand.

• *

• Over all, we cannot defe r to the Commi ssion's c onclusions reg arding temporar y storag e beca use the Commi ss i o n did not conduct a sufficie nt analy sis of the environmenta l ris k s. I n so holding, we do not require , as petitioners would pref er, that the Commi ssion examine eac h site individually. Howeve r, a generic analy sis must be forwa rd looking and have enough brea dth to support the Commi ssion's conclusions.

Fur thermore , as NEPA require s, the Commi ssion must conduct a t ru e EA reg arding the extension of temporar y storag e. Such an analy sis m u s t, unless it finds the probability of a g iven risk to be eff ectively zero, acc ount for the conseque nces of eac h risk. On remand, the Commi ssion will have the opportunity to co n d u ct exactly such an a naly sis. V. Conclusion We rec og nize that the Commi ssion is in a difficult position g iven the political problems conce rning the storag e of spent USCA Case #11-1045 Document #1377720 Filed: 06/08/2012 Page 20 of 21 21 nuclea r fuel. Nonethele ss, the Commi ssion's obliga tions under NEPA require a more thoroug h analy sis than provided for in the W CD Update. We note that the Commi ssion is curren t l y conducting an EI S reg arding the environmenta l impacts of SNF storag e bey ond the six ty-y ear post-license period at issue in this case , and some or all of the pr oblems here may be addre ssed in such a ru lemaking. I n any event, we g rant the petitions for revie w, vaca te the WC D Update and TSR, an d re mand for further proce eding s consistent with this opi nion. So ordered.

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