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Onsite Storage: The Impact of State Regulation on Nuclear Policy

Fortnightly Magazine - February 1 1995

the licensee, local public interest groups, local politicians, and Oregon State University-to assist the state and ODOE in reviewing the Trojan decommissioning plan. Oregon's rules also purport to bar placement of nuclear fuel in the Trojan reactor vessel and to preclude onsite storage of spent fuel in any facility other than the existing spent-fuel pool (except for radioactive materials awaiting mandatory disposal in a federally approved facility).

And where is the NRC in all of this? It too regulates the Trojan plant licensee in all of the above-mentioned activities. In Oregon, the high principle of federal preemption has unraveled into an accommodation of dual state-federal regulation over radiological safety.Outlook

As the nuclear industry continues to address the challenges of electric price competition, utilities seeking favorable rate treatment might be inclined to accommodate state regulation over waste storage. As a practical matter, utilities objecting to such state involvement may find it difficult to fight the battle on their own. A broader effort may provide the answer. Where states engage in such initiatives, the NRC should assert its exclusive authority to regulate nuclear safety.

The NRC has taken some positive steps. It has supported solutions to waste storage issues through technical and regulatory channels-such as licensing of dry cask spent-fuel storage technology and withdrawal of a proposed rule that would have complicated onsite storage of LLW. See, 59 Fed.Reg. 19,147 (Apr. 22, 1994). The NRC has gone on record that "the federal government, primarily NRC, is assigned exclusive authority and responsibility to regulate the radiological and national security aspects of [commercial nuclear power plant construction and operation]." See, Policy Statement on Cooperation With States at Commercial Nuclear Power Plants, 59 Fed.Reg. 7530 (1989). Finally, the NRC has become involved in specific cases-most recently by communicating to officials in South Carolina its view that state regulations should not apply to onsite storage of radioactive equipment by power reactor licensees in South Carolina. Nevertheless, the NRC has proved less effective in other cases in asserting its exclusive regulatory authority.

In the end, by asserting economic and political pressure, the states have thwarted the NRC's best efforts and forced power reactor licensees to submit to increased state regulation over onsite waste storage and decommissioning. The situation recalls the Supreme Court's admonition in the 1983 PG&E case: "[T]he legal reality remains that Congress has left sufficient authority to the states to allow the development of nuclear power to be slowed or even stopped for economic reasons."

In theory, this problem is transitory. It should disappear when the states and their compacts establish LLW disposal facilities and the federal government completes the high-level waste repository. (Reported progress in developing a private spent-fuel storage facility might present an alternative for interim relief.) In the meantime, perhaps Congress needs to speak directly to the issue. Congress could relieve the pressure by authorizing immediate construction of an interim storage facility for high-level waste-a concept now tied unnecessarily to construction of the permanent disposal facility.Nicholas S. Reynolds is a member of the law firm Winston & Strawn, resident in the firm's Washington, DC,