NUCLEAR WASTE:
LONG TERM STORAGE, THE FAILURE OF THE FEDERAL GOVERNMENT, AND NIMBY
By: Emily M. Yandle
I.
INTRODUCTION
Under the Nuclear Waste Policy Act of 1982 (“NWPA”), the federal government was
required to provide long-term storage for nuclear waste by 1998. The current methods of storage
are running out of space and are not intended for long-term use. At this point, the federal
government has ceased work on Yucca Mountain, and it is beginning to explore other possible
methods to meet its storage obligations. Currently, the United States has more than 64,000
metric tons of nuclear waste, and the amount of waste that will need to be disposed of is
increasing daily.
Energy is produced at a nuclear power plant by splitting uranium atoms placed in fuel
assemblies through the process of nuclear fission. This nuclear reaction occurs at a controlled
level for up to a few years before the fuel assemblies are removed from the reactor core. The
remaining fuel rods contain radioactive plutonium, radioactive fission products, and radioactive
gases. The fuel rods are at this point highly radioactive, and they will remain “dangerously
radioactive for tens of thousands of years.” Because of this long-term radioactivity, a long-term
solution must be found to the issue of storing nuclear waste, and a short-term solution will not be
sufficient.
This paper seeks to examine the different storage options that are either currently being
used in the United States or currently being considered as options in the future. Next, this paper
considers the government’s statutory obligations for accepting spent nuclear fuel from the
country’s utilities. There is also an examination of some of the current litigation on the
government’s failure to begin accepting nuclear waste from the utilities. Further, the paper seeks
to set out the optimal solution for meeting the government’s statutory obligation, with a premium
on expediency because the damages that the government will be required to pay increase every
year and will not stop accruing until a solution is reached. Up until this point, delay may be the
single biggest problem affecting the way in which nuclear waste is dealt with in the United
States.
II.
STORAGE OPTIONS
There are four primary options that are currently being considered for use in the United
States, and those that are not currently in use in the United States are being used or strongly
considered in other countries. The two options currently in use in this country are the storage of
nuclear waste in spent fuel pools and dry casks. The two options that are currently being
considered are long-term storage in an underground repository and reprocessing of the spent fuel.
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A.
Spent Fuel Pools
Spent fuel pools are located on the same sites as working nuclear reactors. When fuel
rods are moved from the reactor to the pool, they are completely immersed in water so that
workers at the nuclear facility are never exposed to radiation. The rods are constantly covered
by 20 feet of water at a minimum while in the pools in order to absorb heat and radiation to
protect workers and the public. The pools themselves are made from steel-reinforced concrete
and generally have steel liners to further enclose the rods.
The Nuclear Regulatory Commission (“NRC”) allows site owners to re-rack fuel rods
and consolidate the fuel rods to some extent to fit more rods into the spent fuel pools. However,
there is a point past which more rods cannot be put into a spent fuel pool because there is a risk
that the pool could overheat and release neutrons into the surrounding environment. The NRC
has projected that spent fuel pools will be at capacity by 2015. This leads to serious concerns
that companies my either begin to attempt over-filling their spent fuel pools or will need
significant amounts of other storage within the next five years; therefore, spent fuel pools are not
a long-term storage option.
B.
Dry Cask Storage
Dry cask storage encapsulates the fuel rods in inert gas, steel, and concrete. Despite
being encased so thoroughly, the dry casks still emit some radiation and heat to the surrounding
area. The designs for dry cask storage must be licensed by the NRC, and to date the NRC has
licensed twenty-two designs. Currently, nuclear sites are storing nine thousand metric tons of
spent fuel in dry cask storage.
While the option of storing nuclear waste in dry casks seems more long-term than spent
fuel pools, casks are currently licensed for twenty years with optional renewals. The NRC has
stated it believes dry cask storage can last for one hundred years; however, this is still
significantly shorter than the half life of the spent fuel. Additional issues arise because there are
concerns about terrorist attacks on the dry casks. The NRC seems unconcerned about this
problem because the dry casks are normally stored within the controlled area of the nuclear plant
and should be receiving the same security protection as the rest of the nuclear plant, including
the reactor core.
In addition to the security issues and the problem of long-term availability, dry cask
storage is very expensive compared to its useful life. The Nuclear Energy Institute has estimated
the startup costs for a dry storage facility to reach as much as twenty million dollars.
Additionally, maintenance and operations costs may be as much as seven million dollars each
year. Across 104 working nuclear power plants in the United States, estimates say that needing
to rely on dry cask storage may have cost the nuclear industry as much as eleven billion dollars
so far.
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C.
Underground, Long-term Storage
There is historical precedence that underground nuclear storage is possible over the long
term with few negative consequences to the surrounding people and environment. Around two
billion years ago, a spontaneous nuclear reaction took place in Oklo, Gabon in uranium deposits
underground. During the chain reaction, plutonium was produced and trapped in the rock
formations. Since the chain reaction stopped, the radioactivity has only moved slightly, and it
has not caused significant exposure to the general human population. Additionally, the
plutonium that was confined in the rock has become less radioactive over the intervening years.
Scientists have suggested that the safety mechanisms actually in place at Oklo could be exceeded
in a manmade depository to further ensure that radioactive material would not move.
Yucca Mountain was selected as the long-term United States depository for nuclear fuel
in 1987, and after that time, no other locations were seriously considered. Yucca Mountain was
selected from eight possible locations across the United States that the Department of Energy
(“DOE”) began considering in 1983. One of the primary contentions with using Yucca
Mountain as the long-term repository is that it only took the DOE four years to settle on Yucca
Mountain as its final location choice. However, there was purported scientific backing for the
selection of Yucca Mountain as the final site: it was in a particularly remote location; it was in a
dry climate area; and the water table in the area is much deeper than in most places. However,
protestors from the state of Nevada have pointed to issues with the site including evidence of
“potential volcanic activity, earthquakes, water filtration, underground flooding, nuclear chain
reactions, and fossil fuel and mineral deposits in the area.”
In 2002, the DOE recommended to President Bush the final selection of Yucca Mountain.
The facility was deemed to be “scientifically and technically suitable for the development of a
repository.” President Bush signed off on Yucca Mountain in February of 2002, and he
submitted his approval to Congress. Under the NWPA, the state that is selected to house the
long-term storage facility has the ability to veto the construction of the underground storage unit
in their state; however, this veto can be overridden by a vote in Congress. Nevada did attempt to
exercise its veto to Yucca Mountain, but Congress voted to overrule the veto. This allowed the
design to move forward to the NRC for approval. Nevada’s attempt to veto the construction of
Yucca mountain in the state may not be entirely unfounded as there is currently no nuclear waste
being stored in the state, and Nevada does not have a working nuclear plant. It may be unfair to
place the burden of long-term disposal on a state that has not contributed to the production of the
nuclear waste or benefitted from the energy produced from the nuclear waste.
Despite the fact that the NRC was working on approving the design of Yucca Mountain,
President Obama cut the funding for Yucca Mountain from the federal budget in 2009. This is
despite the fact that eleven billion dollars has already been spent to develop Yucca Mountain.
Instead, the President announced the creation of a “blue ribbon panel” to determine alternative
solutions to Yucca Mountain, the Blue Ribbon Commission on America’s Nuclear Future. The
panel is made up of fifteen members than run across the spectrum of the nuclear and political
disciplines, including former senators, a president of a business advisory firm, the president of
the Carnegie Institution for Science, several members of academia, and the CEO of Exelon
Corporation, a nuclear power producer. The Blue Ribbon Commission was officially formed in
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January 2010, and it is expected to submit an interim report within eighteen months and a final
report within twenty-four months.
While it seems as if Yucca Mountain will never come on-line as a location for the longterm storage of fuel, Yucca Mountain as it is currently designed would actually be too small to
meet all of the storage needs that currently exist in the United States. Yucca Mountain is limited
by statute to accepting only seventy thousand metric tons of nuclear waste. Based on
calculations by the NRC, if all of the nuclear waste currently in the United States were moved to
a completed Yucca Mountain today, it would be full.
D.
Reprocessing
Reprocessing has not been considered as a serious option in the United States for some
time, but it is likely being considered as an option by the Blue Ribbon Commission. In the
1970’s, President Carter prohibited reprocessing as an option out of fear for the creation of
plutonium. Reprocessing seems like a viable option because the current nuclear reactors only
use a portion of the energy that is bundled up in the uranium. In fact, as much as ninety-five
percent of the energy is remaining in the fuel. Reprocessing would allow the recovery of some
of that available energy; however, President Carter expressed concern about the plutonium that
was produced and the possibility of its use in nuclear weapon proliferation.
Many of the concerns that initially led to the ban of reprocessing in the United States are
not as valid today. While the main commercial reprocessing technology does produce plutonium
as a byproduct; however, newer technologies that are in developmental stages lead to almost no
high-level waste byproducts. In any case, reprocessing is incredibly expensive, and
commentators have suggested that countries who currently engage in reprocessing might not
have begun reprocessing their waste if they had not already spent such a tremendous amount of
money on developing their reprocessing facilities.
Even if reprocessing is chosen as the primary method for confronting the growing issue
of spent fuel in the United States, long-term storage of spent fuel cannot be abandoned. The
byproducts of reprocessing are certainly “smaller in amount” than the spent fuel before
reprocessing; however, the remaining waste is actually more radioactive than the initial spent
fuel. Additionally, when nuclear power plants are decommissioned, there are several
components of nuclear plants that will also require long-term storage because of their
radioactivity, such as the reactor head.
E.
Other Storage Options
Despite the availability of these seemingly viable ideas, other, less realistic ideas have
also been proposed occasionally. Two of the least viable ideas include “burying the radioactive
waste at sea or shooting it into space.” Based on the current regulatory climate, it seems very
unlikely that either of these ideas will be seriously pursued in the future because it is unlikely the
government will be willing to take on the uncertainty and significant risk of either of these
options. Additionally, the DOE is not currently studying either option.
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In addition to these alternative options, there are also alternative technologies that could
make long-term, underground storage safer. Chief among these is “burning” the nuclear waste in
a special reactor. The goal of this process is to create byproducts with shorter half-lives than
uranium and plutonium. However, this option again runs afoul of critics that are worried about
the possibility of nuclear proliferation.
III.
NUCLEAR WASTE POLICY ACT OF 1982
Under the NWPA, the federal government was required to begin accepting nuclear waste
for long-term storage by January 31, 1998. As early as 1994, the DOE realized that it would be
unable to meet its obligation to accept the nuclear waste until at least 2010, and as of today, that
date has been pushed back even further. In fact, in 1994, the DOE used the term “up in the air”
to describe the new 2010 date. Under § 302(a)(5) of the NWPA, the DOE was required to enter
into contracts for the taking of spent fuel in exchange for the payment of money by the utility
into a Nuclear Waste Fund. Entry into contracts was mandatory for any utilities owning and
operating nuclear plants. Fees were paid into the Nuclear Waste Fund under the standard
contracts as one time fees followed by fees in proportion to the amount of electricity actually
produced by the nuclear power plant.
The NWPA was premised on the idea that the government should take upon itself the
“responsibility to provide for the permanent disposal of [spent nuclear fuel].” Many legislators
had no problem backing the long-term, underground storage of nuclear waste if it meant that the
nuclear waste was removed from their state quickly in order to garner favor with voters.
Additionally, at the inception of the NWPA, legislators saw the temporary storage of nuclear
waste at the individual nuclear sites as what should just be a short-term solution while the longterm disposal site was completed.
IV.
CONTRACT ENFORCEMENT
In 2000, the United States Court of Appeals for the Federal Circuit held that the nuclear
plant operators did not have to exhaust their administrative remedies under the contracts because
their claim for delay did not arise under the contract. The court believed that the delay provision
included in the contract spoke to delays once performance had actually been commenced. This
was different from the delay at issue where the government was delaying the acceptance of
nuclear waste for at least twelve years. However, the court did deny the utilities’ claim that the
DOE should begin accepting nuclear waste immediately because other remedies were available
under the contract that both parties signed.
Since the DOE allowed the 1998 deadline to pass, more than 70 utilities have filed suit
against it. Utilities have claimed damages based on the additional costs associated with having
to store the fuel on-site. Additionally, utilities have cited the high regulatory cost associated with
gaining approval for the storage of waste on-site or in some sort of off-site storage facility.
Utilities have also cited to the costs of building new renewable generation plants in order to gain
credits offsetting the construction of on-site and off-site facilities.
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Further, utilities have repeatedly pointed out that the government has received the benefit
of the bargain while the utilities have not received anything in return. Utilities to date have paid
in more than twenty-eight billion dollars to the Nuclear Waste Fund. While utilities are paying
out this money, it is really the individual rate payers who are paying the fees as a surcharge on
their electrical bills. Courts have begun awarding damages in some cases, and awards have
reached as high as $420 million. This is in addition to the lawyer’s fees that are also in essence
being paid by the taxpayer. Further, long-term governmental liability for failure to take control
of the nuclear waste is estimated to reach seven billion dollars by 2017 and eleven billion dollars
by 2020. Depending on the final calculations of damages, they could include “fees the utilities
have already paid into the nuclear waste fund, interest on those fees, and costs incurred by the
utilities in maintaining interim storage facilities on-site.”
The DOE has sought settlement agreements with some utilities whereby the DOE will
take title and control of the nuclear waste, but for the short-term, the nuclear waste will continue
to be stored on the site of the utility. In return, the utility agrees not to sue the DOE for failing to
meet the deadline for accepting waste. While some utilities have agreed to enter into these
agreements, others have been more reluctant out of fear that the DOE may never remove the
nuclear waste from the plant locations.
V.
SOLUTIONS
Based on the current statutory language of the NWPA, the government needs to make a
decision relatively soon about a solution because millions if not billions of dollars are being lost
each year. Additionally, the current storage options being used by the utilities have an expiration
date. Even under an optimistic estimate put forth by the NRC, the dry storage casks are only an
option for up to one hundred years before they will have to be replaced at additional costs.
Because of the likely very long lead time in implementing a new solution, a decision needs to be
made sooner rather than later. For example, Yucca Mountain was considered the sole option for
more than twenty years before it was scrapped with little recognizable progress made. Because
the damages owed by the federal government are increasing each year that the government fails
to take control of nuclear waste, a delay will only make the eventual solution even more
expensive. Additionally, courts seem to be having little trouble imposing damages on the
government because this is a fairly standard breach of contract claim, the sort which United
States courts are well equipped to handle on a regular basis.
Reprocessing should be an important part of the solution. While reprocessing does
involve a considerable expense, it will make the United States more independent from other
countries in obtaining nuclear fuel. Currently, the United States only receives eight percent of
the uranium it uses from within the United States. Countries including Australia, Canada,
Kazakhstan, Namibia, and Russia provide the rest of the uranium used to power nuclear plants in
the United States. As with the current concerns about foreign petroleum sources, there may
eventually be concerns about the security issues from receiving nuclear fuel from other countries.
Reprocessing would allow the United States to make better use of the significant amount of spent
fuel currently being stored as well as any new fuel that is brought into the country.
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As noted earlier, even if Yucca Mountain was completed today, it would already be too
small. One suggestion has been to increase the capacity of Yucca Mountain so that it would be
usable for a longer time in the future. Additionally, if reprocessing were allowed in the United
States, the amount of spent fuel that would actually need to be moved into storage could be
decreased significantly. Based on the natural nuclear storage facility in Oklo, long-term storage
can be successful without causing significant harm to the surrounding public. Further, the
radiation in Oklo remained largely where it was created without any additional protections in
place such as those that were planned for Yucca Mountain.
VI.
CONCLUSIONS
While it is understandable that the choice of disposal methods is a significant one with
long-term repercussions, a decision must eventually be made because there are too many risks
and costs associated with leaving nuclear waste at the individual plants where it is created. The
way nuclear waste is currently stored is at best a solution for the next century. Given the long
time it takes to bring a storage location on-line, a decision must be made within the next several
years. A solution should involve some combination of reprocessing and long-term storage.
Reprocessing will decrease the United State’s dependence on foreign fuel sources while also
decreasing the amount of waste that needs to be stored long-term. However, a long-term
underground spent fuel storage facility has been shown to be successful over the course of
billions of years. Additionally, even with the use of reprocessing decreasing the amount of waste
to be stored, there are still byproducts and radioactive plant components that must be stored on
an ongoing basis.
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