THE BLUE RIBBON COMMISSION

– A NEW ANGLE?

F R A NC I S X . ( C H I P ) C A M

E R ON

, T H E P A R T NE R S H I P F O

R

C OL L A B O

R A T I V E G OV E R N

A NC E , E U C I , J U N

E 1 6 , 2 0 1 2

OVERVIEW

Yucca Mountain on ice: DOE, NRC, and the Courts – Yucca Mountain Mandamus Case

The Blue Ribbon CommissionCongressional Activity – DOE July ReportWaste Confidence -State of New York v. NRCStakeholder Collaboration – key to success

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PROLOGUE

Nuclear Waste Policy Act of 1982 (NWPA); 1987 Amendments

DOE license application docketed by NRC on September 8, 2008; DOE withdrawal of the license application in Spring of 2010

NRC actions – CLI-11-07

The Yucca Mountain Mandamus Case, In Re: Aiken County, SC, et al. Petitioners; NRC and Chairman Jaczko, Respondents

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COMMISSION’S HLW ORDERCLI-11-07, September 9, 2011 – on review of the June 29, 2012 NRC

Licensing Board decision denying the DOE request to withdraw the license application

On appeal to Commission, 2 to 2 deadlock, on whether to overturn or uphold the Board decision – thus DOE license application still technically alive

NRC staff stopped reviewing the DOE application in Fall 2010 at the then-Chairman Jaczko’s direction; Commission directs the Board to complete all case management activities; Board shuts down Licensing Support Network and Las Vegas Hearing Facility due to budgetary constraints

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IN RE AIKEN COUNTY – D.C. CIRCUIT COURT

Mandamus action filed by the States of South Carolina, Washington, and NARUC, Nye County, NV seeking to compel NRC to act on the DOE Yucca Mountain license application – filed on July 29, 2011, argued May 2, 2012

NRC argued that it does not have sufficient appropriations to make significant progress on the DOE license application – concedes that if it had sufficient appropriated funds, it would need to act but use of the $10 million remaining would accomplish little

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IN RE AIKEN COUNTY – D.C. CIRCUIT COURT

Petitioners argue that that the NRC should use its available money to complete and issue the Safety Evaluation Report, among other actions

A probable outcome, based on the discussions at oral argument, is an order by the Court for the NRC to use the $10 million to make some progress on the license application without specifying exactly what

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THE BLUE RIBBON COMMISSION (BRC)

Formed by the Secretary of Energy at the direction of President Obama, January 10, 2010

To conduct a comprehensive review of policies for managing the backend of the fuel cycle, including:

safe storage and permanent disposal;

options for decision making processes that are flexible, adaptive, and responsive;

ensuring that decisions are open and transparent, with broad participation

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BRC RECOMMENDATIONS - STRATEGY

Consent-based approach to siting waste facilities

New organization to manage the program, with funding

Access to funds paid into by ratepayers

Prompt efforts on one or more geologic disposal facilities

Prompt efforts on consolidated storage facilities

Prompt efforts to prepare for transport to storage/disposal

Support for innovation in nuclear technology and workforce

Active U.S. leadership in international efforts on waste

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BRC – IMPLEMENTATION

Legislative Changes:

Amend NWPA to establish a new consent-based process for selecting, evaluating storage and disposal facilities

Amend NWPA to allow one or more consolidated interim storage facilities

Amend NWPA to expand support given to jurisdictions affected by transportation

Establish a new waste management organization

Ensure access to dedicated funding

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BRC - IMPLEMENTATION

BRC Report concluded that progress towards a consolidated storage facility can begin immediately under existing NWPA provisions which authorize the government to site and design a Monitored Retrieval Storage (MRS) facility

DOE will respond to the BRC recommendations in a report to Congress scheduled for July 26, 2012

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BRC - IMPLEMENTATION

DOE - task forces have been established to develop the report:

Governance

Consent-based siting

System design

Transportation

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“GOVCORP”BRC: “… a new, single-purpose organization is needed…a

congressionally chartered federal corporation offers the best model”

Options:Autonomous administration within DOE, e.g., Bonneville Power

AdministrationIndependent single-purpose agency headed by a single administrator,

e.g., NASAGovernment Corporation, e.g., TVA, USECGovernment-chartered, mixed ownership corporation, e.g., COMSAT,

Fannie Mae

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“GOVCORP”

Issues:

Functional or stakeholder board of directors

Relationships with other federal agencies, Tribes

Technical support

Funding

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CONSENT-BASED APPROACH

BRC: the U.S. needs to adopt a new approach to siting and developing nuclear waste management and disposal facilities in the future

Consent-based – affected communities have an opportunity to decide whether to accept facility siting decisions and retain significant local control

Transparent

Adaptive and staged facility siting process

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CONSENT-BASED APPROACH

How to reconcile state and local community/tribal views

How to define consent – state-wide referendum? willingness to enter into legally binding agreements with the facility operator?

Opting out of the agreement

Congressional approval

Benefits and funding

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CONGRESSIONAL ACTIVITY

DOE report on implementation of BRC recommendations – July 26, 2012 – should form the basis for Congressional action on implementing the BRC recommendations

In the interim, FY 2013 Energy and Water Appropriations Bill authorizes DOE to begin a pilot program for a “consent-based” approach to developing one or more consolidated interim storage facilities with a priority for decommissioned reactors (“stranded” fuel)

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WASTE CONFIDENCE

State of New York et al. v. NRC, No. 11-1045, D.C. Cir. (June 8, 2012)

Review of the NRC’s Waste Confidence Decision and rulemaking on the temporary storage and permanent disposal of nuclear waste

Originally promulgated in 1984 in response to a successful legal challenge to Commission reactor licensing

Updated by the Commission on December 23, 2010 (75 Fed. Reg. 81037)

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WASTE CONFIDENCE

The update revised two of the five findings in the original Waste Confidence Decision:

Finding 2 – a suitable repository will be available “when necessary” (previously, “in the first quarter of the 21st century”)

Finding 4 – spent nuclear fuel can be stored safely at reactor sites for at least 60 years beyond the licensed life of the reactor (previously 30 years)

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WASTE CONFIDENCE

The Court:

The Waste Confidence Decision is a major federal action requiring an EIS or a finding of no significant impact

The Commission’s analysis of the risks of spent nuclear fuel is deficient in two ways:

It did not consider the environmental effects of permanent disposal not being available when necessary

It did not consider the dangers – fires, leaks, - of storing waste on the reactor site

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WASTE CONFIDENCE

Vacated the Waste Confidence Decision update and remanded it back to the Commission for further action

Note that the Court did not hold that the Commission was required to analyze each reactor site individually in terms of the risk of extended (60 years) temporary storage; rather, it suggested that a generic analysis of the risks could be sufficient to support the 60 year finding

In this regard, the required analysis could be part of the Commission’s ongoing EIS on storage beyond 60 years

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WASTE CONFIDENCE

In the aftermath of the decision, a group of advocacy organizations from across the United States petitioned the Commission to suspend final licensing decisions in all pending NRC reactor licensing proceedings until completion of the court-required environmental analysis

See Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings, June 18, 2012

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WASTE CONFIDENCE

The Commission’s response to the petition stated that the Commission has not yet decided how to respond to the D.C. Circuit’s decision and will not make a final decision on any combined operating license (new reactors) or renewed operating license until then See NRC Staff Answer, June 25, 2012

Petitioners can raise these concerns in individual licensing proceedings under the Commission’s normal rules

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WASTE CONFIDENCECommission options:

Fold the analysis into the ongoing EIS on storage beyond 60 years – or at least on the permanent disposal “when necessary” aspect

Undertake a new effort to provide the required analysis, both on the “when necessary” aspect and/or the 60 year storage aspect

Although the Commission’s Answer to the June 18, 2012 petition stated that it would not issue any final reactor license decisions until it decided how to respond to the Court decision, it could eventually continue individual licensing decisions while any analysis was being conducted – the Court did not foreclose this possibility – and allow the environmental concerns to be litigated in each proceeding

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WASTE CONFIDENCE

Implications for the BRC recommendations:

Waste Confidence Decision does not directly apply to consolidated interim storage

However, the environmental analysis on storage at reactor sites prepared in response to the D.C. Circuit decision could have implications for the licensing of the consolidated interim storage facilities to the extent that the same safety/technical issues are involved

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STAKEHOLDER COLLABORATION BRC :

The legislation to establish the new waste management organization should include appropriate mechanisms to facilitate and support constructive stakeholder participation

To provide an ongoing conduit for input from the full range of interests – utility companies, public utility commissions, taxpayers, states, tribes, and local communities, public interest groups, the nuclear industry, DOE, the U.S. Navy, the academic community, nonproliferation and security community – establish a stakeholder advisory committee and

A special subcommittee of the Advisory Committee to provide specific guidance on the siting process as a conduit for stakeholder input

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STAKEHOLDER COLLABORATIONCollaborative processes bring together affected and concerned

interests, i.e., stakeholders, for a dialogue, and hopefully, consensus, on an issue

Inclusive of all interests, early in the decision-making process, in a structured environment, assisted by a process-expert, i.e., a facilitator

Has been used successfully on many controversial and complex issues, including radioactive waste

Even where consensus is not reached, collaboration can reach positive results in identifying important issues, narrowing the range of disagreement, and identifying what outcomes might be acceptable

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STAKEHOLDER COLLABORATION

Important for use in the waste disposal and storage area in order to:

keep the momentum of the BRC moving

provide a direct forum for stakeholder action NOW

useful bipartisan solutions can be developed for policymakers and legislators before decisions are made

embraces a message that deviates from what has been perceived as dysfunctional unilateral action

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STAKEHOLDER COLLABORATION

Challenging:

Complex and controversial

The issues of storage, permanent disposal, and transportation are interconnected

The framework of relationship between state, local, and tribal governments

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STAKEHOLDER COLLABORATIONWhat issues?

The nature of the consent process – how to define; roles of states, tribes, and communities

The NRC/EPA licensing standards for permanent disposal – a BRC emphasis

The siting criteria for storage and disposal

When?

Before Congressional action? After the GovCorp is established?

Under whose sponsorship?

DOE?

GovCorp?

Stakeholder initiated, “sua sponte”

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