Late last week, New York Attorney General Eric T. Schneiderman announced that he has won a landmark victory in a suit against the federal Nuclear Regulatory Commission (NRC) challenging a Commission finding that the long-term storage of radioactive waste at the nation's nuclear power plants is safe and has no adverse environmental impacts.  This decision means that the NRC cannot license or re-license any nuclear power plant, including the Indian Point facility in Westchester County, until it examines the dangers and consequences of long-term on-site storage of nuclear waste.   

The United States Court of Appeals for the District of Columbia Circuit today agreed with Attorney General Schneiderman that federal law requires the NRC to complete review of the public health, safety and environmental hazards such storage would pose before allowing the long-term storage of nuclear waste in communities. The appeals court found that the spent nuclear fuel stored on-site "poses a dangerous, long-term health and environmental risk."  The Court invalidated the regulation and remanded the matter back to NRC with a directive that the Commission fully comply with federal law.

"This is a landmark victory for New Yorkers, and people across the country living in the shadows of nuclear power plants. We fought back against the Nuclear Regulatory Commission's rubber stamp decision to allow radioactive waste at our nation's nuclear power plants to be stored for decades after they're shut down - and we won," said Attorney General Schneiderman. "The Court was clear in agreeing with my office that this type of NRC 'business as usual' is simply unacceptable. The NRC cannot turn its back on federal law and ignore its obligation to thoroughly review the environmental, public health, and safety risks related to the creation of long-term nuclear waste storage sites within our communities. Whether you're for or against re-licensing Indian Point and our nation's aging nuclear power plants, the security of our residents who live in the areas that surround these facilities is paramount. I am committed to continuing to use the full force of my office to push the NRC to fully evaluate -- and ensure -- the safety of Indian Point and our other nuclear plants."

The Court of Appeals today agreed with the Attorney General that the NRC violated NEPA when it found - without conducting the necessary studies - that no significant safety or environmental impacts will result from storing highly radioactive nuclear wastes onsite at the more than 100 operating reactors around the country, including from the Indian Point reactors in Westchester County, for 60 or more years after the reactors are closed. 

The Court also found that the NRC violated the law when it found "reasonable assurance" that sufficient, licensed, off-site storage capacity will be available to dispose of nuclear power plant waste "when necessary."  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 appeals court wrote that the NRC "apparently has no long-term plan other than hoping for a geologic repository." 

The Attorney General argued in the lawsuit that full compliance with NEPA requires the NRC to conduct a rigorous analysis of the potential for environmental, health and safety impacts.  An analysis of this type, if conducted thoroughly and objectively, would identify any environmental, health and safety risks related to long-term, onsite storage of radioactive waste at each site, as well as those mitigation measures (such as increased groundwater monitoring, reinforced containment structures, or repair of leaking spent fuel pools) needed to fully address them.

This victory stems from one of the first actions of Attorney General Schneiderman upon taking office.  In February 2011,  Attorney General Schneiderman, leading a coalition of state attorneys general including Connecticut, Vermont and New Jersey, and the Prairie Island Indian Community, challenged both a NRC rule amending federal regulations and its "Waste Confidence Decision Update" - both issued on December 23, 2010 - as violating the National Environmental Policy Act (NEPA).  NEPA is a federal law requiring federal government agencies to study the environmental impacts of proposed agency actions, including decisions whether to re-license nuclear power plants.

Attorney General Schneiderman has been highly successful in actions aimed at improving regulations and safety at Indian Point, and that could have important benefits for plants nationwide.  For example:

• In February 2012, the NRC sided with Attorney General Schneiderman by rejecting Indian Point's request for more than 100 exemptions from critical fire safety requirements. The Attorney General filed a petition last year over Indian Point's continued failure to comply with federal fire safety regulations established to keep plants secure in an emergency.
• In July 2011, Attorney General Schneiderman won a landmark ruling by the Atomic Safety and Licensing Board ordering the completion of  legally-required analyses of Indian Point' s  severe accident mitigation measures before it can be relicensed.  In December of that year, the NRC rejected a move by Entergy, Indian Point's owner, to reverse that decision. 

The NRC is a federal government agency, headed by five Commissioners, established by the Energy Reorganization Act in 1974 as a successor to the disbanded United States Atomic Energy Commission.  The Commission's responsibilities include reactor safety and security, reactor licensing and renewal, radioactive material safety, security and licensing, and spent fuel management (storage, security, reprocessing, and disposal).

This matter is being handled by Deputy Bureau Chief Monica Wagner, Assistant Attorneys General Janice Dean and John Sipos of the Attorney General's Environmental Protection Bureau, Deputy Solicitor General Cecelia Change and Assistant Solicitor General Brian Sutherland, under the supervision of Environmental Protection Bureau Chief Lemuel M. Srolovic, Executive Deputy Attorney General for Social Justice, Janet Sabel, and Solicitor General Barbara Underwood.