ENVIRONMENTAL LAW
ASSIGNMENT 9
A Case Study of Judicial Review Under NEPA:
The Yucca Mountain Controversy
Reading:
Baltimore Gas & Electric Co. v. Natural Resources Defense Council
Kai Erickson, Out of Sight, Out of Our Minds
The Continuing Controversy Over Nuclear Waste Disposal
Notes and Questions:
1.
The Supreme Court began to “soften” the hard look doctrine of judicial review articulated
in Overton Park in the series of NEPA cases that we studied in Assignment 3. As we saw in the
last assignment, the Court also used Vermont Yankee to emphasize the courts’ obligation to grant
significant deference to federal agencies’ choice of decisionmaking structures and processes and
to the agencies’ ultimate decisions on the merits. Baltimore Gas & Electric reiterates (and
perhaps expands) that deference. The controversy over the proposed “permanent” storage of
high-level nuclear waste, which was the genesis of the BG&E litigation, also provides an
excellent opportunity to study important questions of risk assessment, risk management, and
decisionmaking under conditions of scientific uncertainty.
1
2.
As described in BG&E, the Nuclear Regulatory Commission adopted the "zero-release"
assumption by rulemaking and subsequently incorporated the rule into the licensing proceedings
for the construction and operation of individual nuclear power plants. How do the rulemaking
proceedings interact with the quasi-adjudicatory proceedings in this case?
3.
Do you agree with the Supreme Court that, in adopting the "zero-risk" assumption, the
NRC engaged in "reasoned decisionmaking"? Does your knowledge of subsequent events
change your analysis of this question?
4.
Does the NRC's decision to trade off over- and under-estimates of risk make sense? Are
not the fuel loading and long-term storage risks of leakage discrete consequences that must be
evaluated independently?
5.
Please note the Court's declaration that, when an agency “is making predictions, within
its area of special expertise, at the frontiers of science . . . a reviewing court must generally be at
its most deferential.” Has the Court held, in effect, that the greater the uncertainty, the freer the
agency is to ignore uncertainty?
6.
In view of the great uncertainty regarding the establishment of a long-term nuclear waste
repository that existed in 1983, did the Supreme Court abdicate its responsibilities under the
Administrative Procedure Act and NEPA to ensure that the NRC took a "hard look" at the
environmental consequences of licensing additional nuclear reactors that will generate additional
nuclear waste for which did not (and still does not) yet exist a permanent disposal site? Or,
given these uncertainties and the NRC’s responsibility to continue to license the construction and
operation of new nuclear power plants, was the Court’s decision the only realistic alternative?
7.
What remains of the “hard look” doctrine after BG&E?
8.
At the time it handed down the BG&E decision, the Supreme Court of course did not
know what would become of the process to select a permanent high-level nuclear waste
repository. With this history in mind (and with the benefit of hindsight), do you believe that the
Court should have invalidated the “zero-release assumption”?
9.
More generally, what should be the United States’s policy for the current production of
nuclear power and the future construction of new nuclear power plants? In light of the risks of
on-site storage of nuclear waste, should we proceed with the licensing of Yucca Mountain
despite the seismic, hydrogeologic, and political uncertainties?
BALTIMORE GAS & ELECTRIC v. NATURAL RESOURCES DEFENSE COUNCIL
Supreme Court of the United States
462 U.S. 87 (1983)
Justice O'CONNOR delivered the opinion of the Court.
2
Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C)
(NEPA), requires federal agencies to consider the environmental impact of any major federal
action. As part of its generic rulemaking proceedings to evaluate the environmental effects of
the nuclear fuel cycle for nuclear power plants, the Nuclear Regulatory Commission
(Commission) decided that licensing boards should assume, for purposes of NEPA, that the
permanent storage of certain nuclear wastes would have no significant environmental impact
and thus should not affect the decision whether to license a particular nuclear power plant. We
conclude that the Commission complied with NEPA and that its decision is not arbitrary or
capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C.
§ 706.
I
The environmental impact of operating a light-water nuclear power plant1 includes the
effects of offsite activities necessary to provide fuel for the plant ("front end" activities), and of
offsite activities necessary to dispose of the highly toxic and long-lived nuclear wastes
generated by the plant ("back end" activities). The dispute in these cases concerns the
Commission's adoption of a series of generic rules to evaluate the environmental effects of a
nuclear power plant's fuel cycle. At the heart of each rule is Table S-3, a numerical
compilation of the estimated resources used and effluents released by fuel cycle activities
supporting a year's operation of a typical light-water reactor.2 The three versions of Table S-3
contained similar numerical values, although the supporting documentation has been amplified
during the course of the proceedings.
The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking
proceedings. 39 Fed. Reg. 14188 et seq. (1974). This "original" rule, as it later came to be
described, declared that in environmental reports and impact statements for individual licensing
proceedings the environmental costs of the fuel cycle "shall be as set forth" in Table S-3 and that
"[n]o further discussion of such environmental effects shall be required." Id. at 14191.3 The
1
A light-water nuclear power plant is one that uses ordinary water (H2O), as opposed to
heavy water (D2O), to remove the heat generated in the nuclear core. See D. Considine and G.
Considine, Van Nostrand's Scientific Encyclopedia 1998, 2008 (6th ed. 1983). The bulk of the
reactors in the United States are light-water nuclear reactors. U.S. Nuclear Regulatory
Commission, 1980 Annual Report App. 6.
2
For example, the tabulated impacts include the acres of land committed to fuel cycle
activities, the amount of water discharged by such activities, fossil fuel consumption, and
chemical and radiological effluents (measured in curies), all normalized to the annual fuel
requirement for a model 1000 megawatt light-water reactor.
3
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq., a
utility seeking to construct and operate a nuclear power plant must obtain a separate permit or
license at both the construction and the operation stage of the project. After the Commission's
3
original Table S-3 contained no numerical entry for the long-term environmental effects of
storing solidified transuranic and high-level wastes,4 because the Commission staff believed that
technology would be developed to isolate the wastes from the environment. The Commission
and the parties have later termed this assumption of complete repository integrity as the "zerorelease" assumption: the reasonableness of this assumption is at the core of the present
controversy.
The Natural Resources Defense Council (NRDC), a respondent in the present cases,
challenged the original rule and a license issued under the rule to the Vermont Yankee Nuclear
Power Plant. The Court of Appeals for the District of Columbia Circuit affirmed Table S-3's
treatment of the "front end" of the fuel cycle, but vacated and remanded the portion of the rule
relating to the back end because of perceived inadequacies in the rulemaking procedures.
Natural Resources Defense Council, Inc. v. NRC, 178 U.S. App. D.C. 336, 547 F.2d 633 (1976).
Judge Tamm disagreed that the procedures were inadequate, but concurred on the ground that the
record on waste storage was inadequate to support the zero-release assumption. Id. at 361, 547
F.2d at 658.
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), this Court
unanimously reversed the Court of Appeals' decision that the Commission had used inadequate
procedures, finding that the Commission had done all that was required by NEPA and the APA
and determining that courts generally lack the authority to impose "hybrid" procedures greater
than those contemplated by the governing statutes. We remanded for review of whether the
original rule was adequately supported by the administrative record, specifically stating that the
court was free to agree or disagree with Judge Tamm's conclusion that the rule pertaining to the
back end of the fuel cycle was arbitrary and capricious within the meaning of § 10(e) of the
APA, 5 U.S.C. § 706. Id. at 536, n.14.
While Vermont Yankee was pending in this Court, the Commission proposed a new
"interim" rulemaking proceeding to determine whether to adopt a revised Table S-3. The
proposal explicitly acknowledged that the risks from long-term repository failure were uncertain,
staff has examined the application for a construction license, which includes a review of possible
environmental effects as required by NEPA, a three-member Atomic Safety and Licensing Board
conducts a public adjudicatory hearing and reaches a decision which can be appealed to the
Atomic Safety and Licensing Appeal Board and, in the Commission's discretion, to the
Commission itself. The final agency decision may be appealed to the courts of appeals. A
similar procedure occurs when the utility applies for an operating license, except that a hearing
need be held only in contested cases. See Vermont Yankee, 435 U.S. 519, 526527 (1978).
4
High-level wastes, which are highly radioactive, are produced in liquid form when spent
fuel is reprocessed. Transuranic wastes, which are also highly toxic, are nuclides heavier than
uranium that are produced in the reactor fuel. See Natural Resources Defense Council, Inc. v.
NRC, 222 U.S. App. D.C. 9, 16, n.11, 685 F.2d 459, 466, n.11 (1982).
4
but suggested that research should resolve most of those uncertainties in the near future. 41 Fed.
Reg. 45849, 45850-45851 (1976). After further proceedings, the Commission promulgated the
interim rule in March 1977. Table S-3 now explicitly stated that solidified high-level and
transuranic wastes would remain buried in a federal repository and therefore would have no
effect on the environment. Like its predecessor, the interim rule stated that "[n]o further
discussion of such environmental effects shall be required." The NRDC petitioned for review of
the interim rule, challenging the zero-release assumption and faulting the Table S-3 rule for
failing to consider the health, cumulative, and socioeconomic effects of the fuel cycle activities.
The Court of Appeals stayed proceedings while awaiting this Court's decision in Vermont
Yankee. In April 1978, the Commission amended the interim rule to clarify that health effects
were not covered by Table S-3 and could be litigated in individual licensing proceedings. 43
Fed. Reg. 15613 et seq. (1978).
In 1979, following further hearings, the Commission adopted the "final" Table S-3 rule.
44 Fed. Reg. 45362 et seq. (1979). Like the amended interim rule, the final rule expressly stated
that Table S-3 should be supplemented in individual proceedings by evidence about the health,
socioeconomic, and cumulative aspects of fuel cycle activities. The Commission also continued
to adhere to the zero-release assumption that the solidified waste would not escape and harm the
environment once the repository was sealed. It acknowledged that this assumption was uncertain
because of the remote possibility that water might enter the repository, dissolve the radioactive
materials, and transport them to the biosphere. Nevertheless, the Commission predicted that a
bedded-salt repository would maintain its integrity, and found the evidence "tentative but
favorable" that an appropriate site would be found. Id. at 45368. The Commission ultimately
determined that any undue optimism in the assumption of appropriate selection and perfect
performance of the repository is offset by the cautious assumption, reflected in other parts of the
Table, that all radioactive gases in the spent fuel would escape during the initial 6 to 20 year
period that the repository remained open, ibid, and thus did not significantly reduce the overall
conservatism of the S-3 Table. Id. at 45369.
The Commission rejected the option of expressing the uncertainties in Table S-3 or
permitting licensing boards, in performing the NEPA analysis for individual nuclear plants, to
consider those uncertainties. It saw no advantage in reassessing the significance of the
uncertainties in individual licensing proceedings:
"In view of the uncertainties noted regarding waste disposal, the question
then arises whether these uncertainties can or should be reflected explicitly in the
fuel cycle rule. The Commission has concluded that the rule should not be so
modified. On the individual reactor licensing level, where the proceedings deal
with fuel cycle issues only peripherally, the Commission sees no advantage in
having licensing boards repeatedly weigh for themselves the effect of
uncertainties on the selection of fuel cycle impacts for use in cost-benefit
balancing. This is a generic question properly dealt with in the rulemaking as part
of choosing what impact values should go into the fuel cycle rule. The
Commission concludes, having noted that uncertainties exist, that for the limited
5
purpose of the fuel cycle rule it is reasonable to base impacts on the assumption
which the Commission believes the probabilities favor, i.e., that bedded-salt
repository sites can be found which will provide effective isolation of radioactive
waste from the biosphere." Id. at 45369.
The NRDC and respondent State of New York petitioned for review of the final rule.
The Court of Appeals consolidated these petitions for all purposes with the pending challenges to
the initial and interim rules. By a divided panel, the court concluded that the Table S-3 rules
were arbitrary and capricious and inconsistent with NEPA because the Commission had not
factored the consideration of uncertainties surrounding the zero-release assumption into the
licensing process in such a manner that the uncertainties could potentially affect the outcome of
any decision to license a particular plant. Natural Resources Defense Council, Inc. v. NRC, 222
U.S. App. D.C. 9, 685 F.2d 459 (1982). * * *
We granted certiorari. We reverse.
II
We are acutely aware that the extent to which this Nation should rely on nuclear power as
a source of energy is an important and sensitive issue. Much of the debate focuses on whether
development of nuclear generation facilities should proceed in the face of uncertainties about
their long-term effects on the environment. Resolution of these fundamental policy questions
lies, however, with Congress and the agencies to which Congress has delegated authority, as well
as with state legislatures and, ultimately, the populace as a whole. Congress has assigned the
courts only the limited, albeit important, task of reviewing agency action to determine whether
the agency conformed with controlling statutes. As we emphasized in our earlier encounter with
these very proceedings, "[a]dministrative decisions should be set aside in this context, as in every
other, only for substantial procedural or substantive reasons as mandated by statute . . . , not
simply because the court is unhappy with the result reached." Vermont Yankee, 435 U.S. at 558.
The controlling statute at issue here is the National Environmental Policy Act. NEPA has
twin aims. First, it "places upon an agency the obligation to consider every significant aspect of
the environmental impact of a proposed action." Vermont Yankee, supra, at 553. Second, it
ensures that the agency will inform the public that it has indeed considered environmental
concerns in its decisionmaking process. Weinberger v. Catholic Action of Hawaii, 454 U.S. 139,
143 (1981). Congress in enacting NEPA, however, did not require agencies to elevate
environmental concerns over other appropriate considerations. See Stryckers' Bay Neighborhood
Council v. Karlen, 444 U.S. 223, 227 (1980) (per curiam). Rather, it required only that the
agency take a "hard look" at the environmental consequences before taking a major action. See
Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21 (1976). The role of the courts is simply to ensure
that the agency has adequately considered and disclosed the environmental impact of its actions
and that its decision is not arbitrary or capricious. See generally Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 415417 (1971).
6
In its Table S-3 Rule here, the Commission has determined that the probabilities favor the
zero-release assumption, because the Nation is likely to develop methods to store the wastes with
no leakage to the environment. The NRDC did not challenge and the Court of Appeals did not
decide the reasonableness of this determination, 685 F.2d at 478, n.96, and no party seriously
challenges it here. The Commission recognized, however, that the geological, chemical,
physical and other data it relied on in making this prediction were based, in part, on assumptions
which involve substantial uncertainties. Again, no one suggests that the uncertainties are trivial
or the potential effects insignificant if time proves the zero-release assumption to have been
seriously wrong. After confronting the issue, though, the Commission has determined that the
uncertainties concerning the development of nuclear waste storage facilities are not sufficient to
affect the outcome of any individual licensing decision.
It is clear that the Commission, in making this determination, has made the careful
consideration and disclosure required by NEPA. The sheer volume of proceedings before the
Commission is impressive.5 Of far greater importance, the Commission's Statement of
Consideration announcing the final Table S-3 Rule shows that it has digested this mass of
material and disclosed all substantial risks. 44 Fed. Reg. 45362, 45367-45369 (1979). The
Statement summarizes the major uncertainty of long-term storage in bedded-salt repositories,
which is that water could infiltrate the repository as a result of such diverse factors as geologic
faulting, a meteor strike, or accidental or deliberate intrusion by man. The Commission noted
that the probability of intrusion was small, and that the plasticity of salt would tend to heal some
types of intrusions. The Commission also found the evidence "tentative but favorable" that an
appropriate site could be found. Table S-3 refers interested persons to staff studies that discuss
the uncertainties in greater detail. Given this record and the Commission's statement, it simply
cannot be said that the Commission ignored or failed to disclose the uncertainties surrounding its
zero-release assumption.
Congress did not enact NEPA, of course, so that an agency would contemplate the
environmental impact of an action as an abstract exercise. Rather, Congress intended that the
"hard look" be incorporated as part of the agency's process of deciding whether to pursue a
particular federal action. It was on this ground that the Court of Appeals faulted the
Commission's action, for failing to allow the uncertainties potentially to "tip the balance" in a
particular licensing decision. As a general proposition, we can agree with the Court of Appeals'
determination that an agency must allow all significant environmental risks to be factored into
the decision whether to undertake a proposed action. We think, however, that the Court of
Appeals erred in concluding the Commission had not complied with this standard.
5
The record includes more than 1100 pages of prepared direct testimony, two rounds of
questions by participants and several hundred pages of responses, 1200 pages of oral hearings,
participants' rebuttal testimony, concluding statements, the 137-page report of the hearing board,
further written statements from participants, and oral argument before the Commission. The
Commission staff has prepared three studies of the environmental effects of the fuel cycle * * * .
7
As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular
internal decisionmaking structure. Here, the agency has chosen to evaluate generically the
environmental impact of the fuel cycle and inform individual licensing boards, through the Table
S-3 rule, of its evaluation. The generic method chosen by the agency is clearly an appropriate
method of conducting the hard look required by NEPA. See Vermont Yankee, supra, 435 U.S. at
535, n.13. The environmental effects of much of the fuel cycle are not plant specific, for any
plant, regardless of its particular attributes, will create additional wastes that must be stored in a
common long-term repository. Administrative efficiency and consistency of decision are both
furthered by a generic determination of these effects without needless repetition of the litigation
in individual proceedings, which are subject to review by the Commission in any event. * * *
The Court of Appeals recognized that the Commission has discretion to evaluate
generically the environmental effects of the fuel cycle and require that these values be "plugged
into" individual licensing decisions. The court concluded that the Commission nevertheless
violated NEPA by failing to factor the uncertainty surrounding long-term storage into Table S-3
and precluding individual licensing decisionmakers from considering it.
The Commission's decision to affix a zero value to the environmental impact of longterm storage would violate NEPA, however, only if the Commission acted arbitrarily and
capriciously in deciding generically that the uncertainty was insufficient to affect any individual
licensing decision. In assessing whether the Commission's decision is arbitrary and capricious, it
is crucial to place the zero-release assumption in context. Three factors are particularly
important. First is the Commission's repeated emphasis that the zero-risk assumption—and,
indeed, all of the Table S-3 rule—was made for a limited purpose. The Commission expressly
noted its intention to supplement the rule with an explanatory narrative. It also emphasized that
the purpose of the rule was not to evaluate or select the most effective long-term waste disposal
technology or develop site selection criteria. A separate and comprehensive series of programs
has been undertaken to serve these broader purposes.6 In the proceedings before us, the
Commission's staff did not attempt to evaluate the environmental effects of all possible methods
of disposing of waste. Rather, it chose to analyze intensively the most probable long-term waste
disposal method-burial in a bedded-salt repository several hundred meters below ground and
then "estimate its impact conservatively, based on the best available information and analysis."
44 Fed. Reg. 45362, 45363 (1979). The zero-release assumption cannot be evaluated in
6
In response to Minnesota v. NRC, 195 U.S. App. D.C. 234, 602 F.2d 412 (1979), the
Commission has initiated a "waste confidence" proceeding to consider the most recent evidence
regarding the likelihood that nuclear waste can be safely disposed of and when that, or some
other offsite storage solution, can be accomplished. 44 Fed. Reg. 61372 et seq. (1979). See 44
Fed. Reg. 45362, 46353 (1979). The recently enacted Nuclear Waste Policy Act of 1982, Pub.
L. No. 97425, 96 Stat. 2201, 42 U.S.C. § 10101 et seq. (1982 ed), has set up a schedule for
identifying site locations and a funding mechanism for development of permanent waste
repositories. The Environmental Protection Agency has also proposed standards for future waste
repositories, 47 Fed. Reg. 58196 et seq. (1982).
8
isolation. Rather, it must be assessed in relation to the limited purpose for which the
Commission made the assumption.
Second, the Commission emphasized that the zero-release assumption is but a single
figure in an entire Table, which the Commission expressly designed as a risk-averse estimate of
the environmental impact of the fuel cycle. It noted that Table S-3 assumed that the fuel storage
canisters and the fuel rod cladding would be corroded before a repository is closed and that all
volatile materials in the fuel would escape to the environment.7 Given that assumption, and the
improbability that materials would escape after sealing, the Commission determined that the
overall Table represented a conservative (i.e., inflated) statement of environmental impacts. It is
not unreasonable for the Commission to counteract the uncertainties in post-sealing releases by
balancing them with an overestimate of pre-sealing releases. A reviewing court should not
magnify a single line item beyond its significance as only part of a larger Table.
Third, a reviewing court must remember that the Commission is making predictions,
within its area of special expertise, at the frontiers of science. When examining this kind of
scientific determination, as opposed to simple findings of fact, a reviewing court must generally
be at its most deferential. See, e.g., Industrial Union Department v. American Petroleum
Institute, 448 U.S. 607, 656 (1980) (plurality opinion); id. at 705706 (MARSHALL, J.,
dissenting).
With these three guides in mind, we find the Commission's zero-release assumption to be
within the bounds of reasoned decisionmaking required by the APA. We have already noted that
the Commission's Statement of Consideration detailed several areas of uncertainty and discussed
why they were insubstantial for purposes of an individual licensing decision. The Table S-3
Rule also refers to the staff reports, public documents that contain a more expanded discussion of
the uncertainties involved in concluding that long-term storage will have no environmental
effects. These staff reports recognize that rigorous verification of long-term risks for waste
repositories is not possible, but suggest that data and extrapolation of past experience allow the
Commission to identify events that could produce repository failure, estimate the probability of
those events, and calculate the resulting consequences. NUREG0116, at 486.8 The Commission
7
The Commission also increased the overall conservatism of the Table by overestimating the
amount of fuel consumed by a reactor, underestimating the amount of electricity produced and
then underestimating the efficiency of filters and other protective devices. * * * Additionally,
Table S-3, which analyzes both a uranium-recycle and no-recycle system, conservatively lists,
for each effluent, the highest of the two releases that would be expected under each cycle. 41
Fed. Reg. 45849, 45850 (1977).
8
For example, using this approach the staff estimated that a meteor the size necessary to
damage a repository would hit a given square kilometer of the earth's surface only once every 50
trillion years, and that geologic faulting through the Delaware Basin in southeast New Mexico
(assuming that were the site of the repository) would occur once in 25 billion years. The staff
determined that a surface burst of a 50 megaton nuclear weapon, far larger than any currently
9
staff also modeled the consequences of repository failure by tracing the flow of contaminated
water, and found them to be insignificant. Id. at 489 through 494. Ultimately, the staff
concluded that
"[t]he radiotoxic hazard index analyses and the modeling studies that have been
done indicate that consequences of all but the most improbable events will be
small. Risks (probabilities times consequences) inherent in the long term for
geological disposal will therefore also be small." Id. at 211.
We also find significant the separate views of Commissioners Bradford and Gilinsky.
These Commissioners expressed dissatisfaction with the zero-release assumption and yet
emphasized the limited purpose of the assumption and the overall conservatism of Table S-3.
Commissioner Bradford characterized the bedded-salt repository as a responsible working
assumption for NEPA purposes and concurred in the zero-release figure because it does not
appear to affect Table S-3's overall conservatism. 44 Fed. Reg. 45362, 45372 (1979).
Commissioner Gilinsky was more critical of the entire Table, stating that the Commission should
confront directly whether it should license any nuclear reactors in light of the problems of waste
disposal, rather than hide an affirmative conclusion to this issue behind a table of numbers. He
emphasized that the "waste confidence proceeding," should provide the Commission an
appropriate vehicle for a thorough evaluation of the problems involved in the Government's
commitment to a waste disposal solution. For the limited purpose of individual licensing
proceedings, however, Commissioner Gilinsky found it "virtually inconceivable" that the Table
should affect the decision whether to license, and characterized as "naive" the notion that the fuel
cycle effluents could tip the balance in some cases and not in others. 44 Fed. Reg. 45374 (1979).
In sum, we think that the zero-release assumption—a policy judgment concerning one
line in a conservative Table designed for the limited purpose of individual licensing decisions—
is within the bounds of reasoned decisionmaking. It is not our task to determine what decision
we, as Commissioners, would have reached. Our only task is to determine whether the
Commission has considered the relevant factors and articulated a rational connection between the
facts found and the choice made. Bowman Transportation, Inc. v. Arkansas-Best Freight System,
Inc., 419 U.S. 281, 285286 (1974); Citizens to Preserve Overton Park v. Volpe, supra. Under
this standard, we think the Commission's zero-release assumption, within the context of Table S3 as a whole, was not arbitrary and capricious.
***
deployed, would not breach the repository. The staff also recognized the possibility that heat
generated by the waste would damage the repository, but suggested this problem could be
alleviated by decreasing the density of the stored waste. In recognition that this suggestion
would increase the size of the repository, the Commission amended Table S-3 to reflect the
greater acreage required under these assumptions. See 44 Fed. Reg. 45362, 45369 (1979).
10
IV
For the foregoing reasons, the judgment of the Court of Appeals for the District of
Columbia Circuit is
Reversed.
Justice POWELL took no part in the consideration or decision of these cases.
11
OUT OF SIGHT, OUT OF OUR MINDS
Kai Erikson
The New York Times Magazine, March 6, 1994
As the nation enters the second half-century of the nuclear age, it confronts the
extraordinary challenge of deciding what to do with its nuclear waste. The most dangerous of
these wastes have half-lives of 100,000 years or more, and they pose a hazard for a good deal
longer than that. To call them spent, in fact, is almost to turn language on its head: the wastes
need to be set aside not because their vigor is drained or their fever cooled but because these
poisonous materials have become too irradiated for further use.
Virtually all nations with the capacity to generate nuclear power now see deep geological
burial as the eventual solution to the problem of waste disposal. But they vary considerably in
the urgency with which they approach that eventuality. In most of the world, authorities are
content to let the wastes cool for the time being on the surface—along with the political tempers
the wastes always seem to arouse—and in that frame of mind are awaiting the technology for
permanent disposal sites. (This might be called the Charlie Dressen solution, in honor of the
onetime manager of the Brooklyn Dodgers who once said to his team in the late innings of a
game in which they were desperately behind: "O.K., guys, go out there and hold them while I
think of something.")
The United States, however, is impatient to entomb those wastes once and for all, even
though many experts say that there are no compelling technical reasons for doing so anytime
soon. The need to tidy things up in this way may run deeper in the American grain than is the
case elsewhere—good riddance to bad rubbish—but there are powerful political reasons too: The
nuclear industry and the Government agencies that oversee it hope that a crisp and decisive
solution to the waste problem will help breathe new life into what is now a declining enterprise.
California, for example, as well as a number of other states, has imposed a moratorium on the
building of new reactors until a permanent method can be found to dispose of high-level waste.
Underground burial, whatever its technical and political merits, reflects a kind of natural
logic. The uranium at the heart of those wastes was once an ore brought up from deep beneath
the ground, and even though humankind has fired that ore into something truly awesome, it
seems to make intuitive sense to put it back. Ashes to ashes, dust to dust. Besides, we are
creatures of the surface in much the same way that aquatic animals are creatures of the deep and
we find it easy to suppose that we have disposed of something, rid ourselves of something, if it is
lofted above or sunk below the plane on which we live.
The Nuclear Waste Policy Act of 1982 has been the official response to the disposal
problem. The act set up a kind of unwelcome competition among a number of states to see
which of them would serve as host for the first (and for a few years, at least, the only) high-level
nuclear waste repository. The law called for exhaustive scientific study of a number of potential
sites, but the real hope, as one Senate staff member put it, was to discover a "technically
appropriate subsurface with a politically compliant governor on top." The nominated governors,
12
though, proved anything but compliant, and the political strands of what the former
Congressman Morris Udall called "that delicate fabric of agreements" worked their way loose
long before the most elementary questions about subsurfaces could even be raised.
In 1986, before one exploratory shaft had been sunk, the number of sites selected for
study ("characterization" it was to be called) was narrowed to three: a thick deposit of salt under
the farmlands of Deaf Smith County in north Texas, a basalt formation under the Hanford
nuclear reservation in south-central Washington and a deep layer of volcanic tuff under a desert
ridge in southern Nevada known as Yucca Mountain. In 1987, a year later, Congress announced
in an amendment to the original bill that Yucca Mountain was winner of the competition by
default—the understanding being, presumably, that if the site proves geologically unsuitable, the
selection process will begin all over again. So Yucca Mountain, apparently, is it, although things
remain as murky as ever. The Department of Energy has delayed opening of the facility until at
least 2010, and even that distant date seems unrealistic.
It is obvious that the decision to concentrate on Yucca Mountain did not issue from any
serious comparative technical research. "What you are watching is an exercise in pure politics,"
said Al Swift, a member of the House of Representatives from Washington, at the time of the
1987 amendment. "I am participating in a nonscientific process—sticking it to Nevada." A
future historian, moreover, looking back at our time, might very well go one step further and
conclude that the decision to rely on deep geological entombment did not issue from a thorough
scientific weighing of competing waste technologies, either. At one point in the process, a good
deal of thought was given to alternatives—chemical reprocessing, for example—but the only
ones entertained at any length involved "permanent disposal": President Jimmy Carter had
declared as a matter of policy that "resolving civilian waste management problems shall not be
deferred to other generations." So geological burial was selected almost by default over such
other "permanent" solutions as launching the wastes into outer space, burying them under
sediments on the ocean floor or depositing them on distant Pacific atolls or the frozen plains of
Antarctica. Carter's impulse was a generous one, perhaps, but it was not based on scientific
research or scientific reasoning.
Nor did the Government's decision to invest in nuclear energy in the first place follow
any effort to evaluate competing energy technologies. The nuclear age came in on the crest of so
strong a wave that it seemed almost to be ordained, and it was essentially the same wave that
carried the first nuclear bombs to Hiroshima and Nagasaki. The development of a civilian
nuclear program was a natural continuation of the wartime Manhattan Project, made more urgent
by the cold war and by the hope that a peaceful atom might atone for what the wartime atom had
done. David E. Lilienthal, the first chairman of the Atomic Energy Commission, spoke of the
"conviction" he shared with his fellow nuclear enthusiasts "that somehow or other the discovery
that had produced so terrible a weapon simply had to have an important peaceful use. . . . We
were grimly determined to prove that this discovery was not just a weapon."
Yucca Mountain is as barren a part of the United States as can be found. It is 70 miles
north and west of Las Vegas and 50 miles northeast of Death Valley. It sits on the western rim
13
of (and, in fact, is partly in) the Nevada nuclear test site and on the southern rim of (and is partly
in) the Nellis Air Force Base gunnery range. This dry, remote, gritty place slopes up from the
rangelands of southern Nevada, covered with sagebrush and creosote, and it is a thing of
immense silence and great beauty.
Human beings, however, have been pounding the surrounding lands for more than 40
years. Hundreds of nuclear devices have been detonated at the nearby test site, underground and
on the surface, and immediately to the north the target arrays at Nellis have been bombarded by
tens of thousands of bombs and millions of rounds of strafing fire.
The test site and the Air Force range, together with lands managed by the Department of
the Interior, occupy a considerable portion of southern Nevada. If one begins at Las Vegas in the
south and circles clockwise from settlement to settlement around the edge of the enclosed
Federal lands—a perimeter of hundreds of miles—one passes through a variety of places: the
homes of small groups of southern Paiute and western Shoshone Indians; towns like Pahrump, in
the midst of a sharp real estate boom, and Goldfield, once a lively mining town of 20,000 but
now home to barely 400, or towns like Caliente, once an important depot for coast-to-coast
trains. (Few now pass and none stop.) The traveler passes through Government installations and
Mormon farms, brothels and trading posts, truck stops and small clusters of house trailers and, in
between, huge empty spaces.
As one circles the northern rim of the Government lands, one crosses an important but
unmarked boundary. People who live west of the test site—in Indian Springs, Pahrump,
Amargosa Valley, Beatty, Goldfield, Tonopah—are much more likely to approve of plans for the
repository. They live nearby and thus may be in a better position to profit from it. Besides, they
were upwind during atmospheric testing in the 1950's and early 1960's and have a more benign
view of the dangers of radiation. People living east of the test site, on the other hand, and thus
downwind—in Pioche, Panaca, Caliente, Alamo, Mesquite, Moapa—are far more apt to view the
repository with suspicion. They are too far away to count it a source of income, for one thing,
and many of them are convinced that their home territories were visited by drifting clouds of
radioactivity during the times of atmospheric testing. So they have learned to be wary not only
of nuclear power but of Government policies and promises.
Shoshone and Paiute natives, meanwhile, consider the whole tract to be part of an ancient
claim and view its use by Federal agencies as "willful trespass." They have been using Yucca
Mountain for perhaps 12,000 years, so the notion that it can be "owned" by a Government that
first set foot on it barely a century ago and managed by a department established but two decades
ago has an odd ring to it. Anglos and Indians alike worry that depositing nuclear waste in the
ground might contaminate underground water supplies as well as do other environmental
mischief. But Indians are much more likely than Anglos to think of underground spaces as a
living part of the human habitat. The very idea of injecting the most virulent poisons ever known
into the body of a mountain seems to them an insult to the earth, an affront to ancestors and a
violation of natural good sense.
14
High-level nuclear wastes, remember, can be dangerous for many thousands of years, and
in recognition of that obdurate reality the Environmental Protection Agency has insisted on
guarantees that such material will stay isolated from "the accessible environment" for 10,000
years—held secure in canisters for 100 or more of those years and then, as the containers begin
to degrade, by the geological formations in which they are entombed. That requirement is now
under review, but the problem it was meant to solve remains the same: Somehow a way needs to
be found to protect not only ourselves from those furiously radioactive materials but the people
of a distant future whose way of life and cast of mind we can know nothing about.
The nation needs to find answers to two essential questions: Can the geological
formations be counted on to remain stable for 10 millennia? And can human beings be counted
on not to interfere?
A very considerable amount of research has been done (or is now in the planning stages)
on the first of these questions—studies in geology, hydrology, seismology, climatology and so
on. But the Government has done relatively little research on the second question. Nor is it at
all obvious how one would proceed even if endless sums had been set aside for the purpose.
The 1982 Nuclear Waste Policy Act gave each nominated state the right to conduct
evaluations of target sites within its borders independent of any research undertaken by the
Department of Energy and it authorized Federal grants to help them do so. In 1983, Nevada set
up an ambitious program of research, drawing on the social sciences to consider what effect the
opening of such a facility might have on everyday life. The issues here were not geo-technical
studies of the site itself—that would be the work of the Department of Energy—but
socioeconomic studies of its human surroundings.
The first set of studies conducted by Nevada sought to learn about "standard effects," the
research question being: What is likely to happen to the state's economy and culture if an
operation the size of the repository (some three square miles) opens on the eastern flank of
Yucca Mountain—even if the risks posed by radiation are not taken into account?
These questions are relatively easy to frame, being of a kind posed in any socioeconomic
impact study. How much is it likely to cost to build and maintain the facility? How many of
those dollars can be expected to remain in Nevada? How large a labor force should be required
for the operation? What portion of that force is likely to be drawn from the local labor pool?
What revenues and what expenditures should surrounding neighborhoods expect?
This is exacting technical work and it takes both skill and experience to do it well. But it
nonetheless calls upon familiar mental reflexes and familiar research procedures and it does not
require any stretching of established perspectives. The task is to come up with reasonable
forecasts and then enter them into computer models.
A second set of studies, focusing on what came to be called "special effects," draws on a
different set of mental reflexes. The question here is: What impacts are likely to result from the
15
special risks involved in such a repository? This is unfamiliar conceptual terrain for the social
sciences, if only because the time period under consideration is more than twice as long as the
whole of recorded human history. Imagining—never mind measuring—something so immense
is like peering into a universe of darkness with a flashlight. Ten thousand years! What
vocabulary can we draw on to speak sensibly of such a thing? What compass can we use to find
our way in such a vastness?
The situation demands a choice: Either look for a compelling way to convey the
immensity of that darkness (in which event one might better call on a poet than a scientist) or
study the realities illuminated by that one thin beam of light.
That second course, understandably, is what the available research funds have been spent
on. The situation, as Kristin Shrader-Frechette points out, is uncomfortably like that of the
famous drunk who looks for his keys under a streetlight not because he has any reason to think
he lost them there but because the light is better. The researchers could not have acted
otherwise. But it is a risky process all the same. No matter how energetically one qualifies and
explains, no matter how often one speaks of "uncertainties," one can hardly help giving the
impression that the terrain being illuminated by that flashlight is larger than it is, that one's
comprehension of the problem is surer than it is.
What can one see by the light of a flashlight into the future? Public opinion surveys can
tell how people feel about nuclear power in general and about nuclear wastes in particular. One
can ask individuals who have a special impact on the economy of Nevada—business
representatives and convention planners, for example—what they are likely to do if the
repository goes online. One can ask local people whose lives might be affected by the opening
of the facility how they think they would react if that were to happen. One can ask people how
much compensation they would require in order to accept a repository within a certain distance
of their homes. One can speculate about the effects of the repository on tourism and inmigration. All those approaches have been tried and the ensuing studies on the whole are as
good as the state of the art permits.
The results of these studies are clear and, from Nevada's point of view, alarming. If the
repository goes online and if people continue to feel toward it as they do now, the effects on the
Nevada economy will be devastating. Tourists will be less likely to visit and their images of the
state will become far more negative. Conventions will move elsewhere and businesses will
relocate. Fewer people will migrate into the state to assume new jobs or raise families or retire.
The clearest finding to emerge from all these studies is that people are astonishingly
apprehensive about things nuclear.
In one sense, then, the Nevada authorities have the answer they need. Should Yucca
Mountain become the nation's nuclear waste dump, the costs to the state, by present appearances,
will outweigh the benefits by an enormous margin. Yet no matter how much confidence one has
in the research done so far, there is no mistaking that it focuses exclusively on the consequences
of opening the facility and maybe running it for a few years. Until recently, the Department of
16
Energy had been working on the assumption that site characterization would begin in 1988; that
the Nuclear Regulatory Commission would begin its review of the chosen site in 1994 and issue
a construction permit in 1998; that the repository would accept wastes from 2003 to 2028; that a
caretaker phase would then follow for 20 years (during which time the wastes could be retrieved
if desired or necessary), and finally, that the facility would be decommissioned, decontaminated
and sealed forever between 2053 and 2060.
The starting date of the project has now been postponed, but its operating career, once
under way, will be of the same duration. That may feel like a daunting stretch of time, but at
least it is imaginable: 72 years, a Biblical life span. Our flashlight can probably be counted on to
cast a beam at least some part of that distance.
But the 10,000-year future we are supposed to be contemplating will hardly have begun
by then, so a new and far more important question emerges: What will happen if something goes
wrong not in the operational life of the repository but in the radioactive life of the wastes? What
if there is a leak into the biosphere at any moment in the 10 millennia the repository is required
by law to remain secure? In posing a question like that, one is asking something very special of
the social-science imagination. On the old Department of Energy calendar, the period of years
we are being asked to think about stretches from 1998 (when construction begins) to 11,998; on
the latest calendar, from 2010 until 12,010. Now if one were to write the numbers 11,998 and
12,010 on every blackboard in America, how many people would guess that they referred to
dates? Figures like those lie outside our normal reckonings of time. And they are certainly
outside the reach of even the wildest sort of prediction.
So what can contemporary researchers, adept in the ways of the social sciences but
anchored to their own time and place, do about all that? Nothing, perhaps, except to
acknowledge that it is mighty hard to see 10,000 years into the future. The early summary
reports issuing from Nevada, like technical reports everywhere, sounded that warning as often as
one could ask. Indeed, some form of the word "uncertainty" appeared dozens of times in the first
several pages of one report, along with a reference to "future conditions that will be very difficult
to fully anticipate" and a grave admission that "these hazards are not all knowable." The report
speaks of "external perturbations and surprises" and "unanticipated events"; it concedes that "the
range of uncertainty is great" and that "any methodology that claims precision in the anticipation
of repository consequences must be viewed with appropriate caution."
How useful are such admonitions? They are like the warnings found on cigarette packs.
They are cautionary notes, parenthetical remarks, annotations. They are not worked into the
flow of the argument at all. And in the end, the effect of all that talk about "uncertainties" and
"perturbations" and "surprises" is oddly comforting, as if the empirical territories covered by the
report were broad and secure, even if the outer edges are a bit soft and tinged with ambiguity.
The words matter. Instead of saying "any methodology that claims precision in the
anticipation of repository consequences must be viewed with appropriate caution," how about
declaring flatly that "any methodology that claims precision in that regard must be regarded as
17
ridiculous"? Instead of saying "the reality is that these hazards are not all knowable," why not
say "the reality is that these realities are wholly beyond our ken"?
And what is the logic of choosing a term like "surprise" to refer to events that may take
place 5,000 or 10,000 years from now? "Surprise" seems to speak of something out of the
ordinary, something that bolts from the blue and imposes itself upon a pattern of life events that
one would otherwise expect to have remained fixed and immutable. As if absence of change
were nature's way. As if absence of change were the way of human history.
A good deal of attention has been given by the Department of Energy to the risks that the
wastes will be disturbed by some natural change in the site itself—seismic, geologic, climatic,
volcanic, hydrologic, something else—during the 10,000 years after the repository has been
sealed and decommissioned. But scarcely any attention has been given to the possibility that
human beings might wander into the site and find a way to release its awesome burden. The
Department of Energy, for the most part, has apparently assumed that the risks of human
interference in the workings of a repository, whether intentional or unintentional, are so remote
that they need not be taken into account in any but the most glancing way. Human behavior is
being set aside, really, because it is so hard to come to terms with—so intractable, so difficult to
discuss (as a Department of Energy report once put it) "in quantitative or probabilistic terms." It
is difficult to predict what human beings will do a year hence, hard even to guess what they will
do a decade hence, but preposterous to think that one can even begin to know what they will do a
century or a millennium hence.
The Department of Energy has focused on two major possibilities, although neither of
them seems to have been ranked thus far as "sufficiently credible to warrant further
consideration." The first is that someone will drill down into the repository from the surface and
breach a waste package, allowing radioactivity to escape into the environment. The only
commodity department experts now count as worth drilling for is ground water, but they are
reviewing the possibilities that mineral or energy resources may one day prove valuable enough
to attract activity. The second is that somebody will rearrange the flows of water on the surfaceconstructing dams, for instance, or engaging in massive irrigation projects or in some other way
disturb underground water supplies and increase the possibility that they will be contaminated by
those lurking wastes.
Energy Department experts are unconvinced that people in the future will have other
reasons for boring into the site or for wanting to peel away the protective layers of rock above it,
even though new kinds of earth-moving equipment are already visible on the technological
horizon. But it is hard to take much comfort from their calculations on this score since those
calculations seem to be based for the most part on the assumption that the human future will be
characterized by 20th-century political structures, 20th-century living arrangements, 20thcentury thought processes and, most alarming of all, 20th-century technologies. The department
announces solemnly in its Yucca Mountain Site Characterization Plan of 1988 that it plans to do
research "to determine the anticipated drill-hole density, bore-hole diameter and depths of the
drill-holes over the next 10,000 years in the vicinity of Yucca Mountain." To say that is to risk
18
sounding absurd. The very use of the term "drilling" is enough to betray the limits of the
department's imaginative reach: The history of technology should lead us to assume that
humankind will have found other ways to penetrate rock in 100—never mind 1,000—years.
Most of the intrusions the Energy Department has considered, even the ones it has
dismissed as "not credible," are assumed to be unintentional. Indeed, the terms "human
interference" and "human intrusion" are defined in the glossary of the 1988 Site Characterization
Plan as "the inadvertent effects of future human activities" on buried waste material. It is
understandable, then, that technical discussions at the department and elsewhere would turn on
matters of communication. Can the site be marked so unmistakably that no one blunders into it
unawares and lets radioactivity escape? The Site Characterization Plan notes that "a warning
system composed of surface markers and monuments will be placed at the site as a means of
informing future generations of the risks associated with the repository and its contents." But
what monuments can be counted on to last? What warnings can be counted on to be both
decipherable and impressive several thousand years from now?
That is no trivial matter. We have some idea what monuments have survived the erosions
of time because we have an archeological record to draw on. The earliest Sumerian cuneiform
tablets are more than 5,000 years old and the earliest pyramids are about the same age.
Stonehenge is 4,500 or so years old and the Great Wall of China, 2,200. But history is an
imperfect guide here, at best, because we have no way of knowing what markers have failed to
survive. Moreover, it is increasingly clear that new forms of environmental degradation—acid
rain is but one example—create perils altogether unlike those endured for 5,000 years by the
patient, uncomplaining Sphinx of Giza. And what symbols or words shall we call on to make the
point? Languages have half-lives far shorter than nuclear wastes, or so our experience to date
would suggest, and even if we suppose that English survives, the 20th-century expressions we
select to convey the awe in which we hold those wastes are almost sure to have a different
meaning and a different emphasis in the distant future. If Geoffrey Chaucer—ostensible father
of the English we speak—were asked to propose lines for such a monument, he might well
choose these from the closing of "Troilus and Criseyde":
So preye I god that noon miswryte thee,
Ne thee mismetre for defaute of tonge.
And red wherso thou be, or elles songe,
That thou be understonde. . . .
Meaning, in effect, "I hope to God that nobody misunderstands what I have written here."
And if that is what 600 years can do, what about 6,000? (The thought almost calls for a science
fiction story. "A stranger dressed in furs moves slowly up the desert ridge," it begins, "as if in
search of something. But what? God? Love? Water? A place to burrow underground? She
comes across a block of stone, pitted by the storms of nature and the delinquencies of humankind, and runs a curious finger over the markings carved into its flank: 'Ne the mismetre. . . .'")
19
The chances that people will be allowed to forget actually have to be counted as remote.
Knowledge is not that easily lost, for one thing, and if we can find ways to assure that the
message will be reviewed and revised every half-century or so, we should have more confidence
in our ability to communicate with generations yet to come. But it is important to remember that
language is far more perishable than the stone on which it is often carved and that other efforts to
inform the future—Sumerian tablets, hieroglyphic scripts, Dead Sea Scrolls—have become
archeological curiosities.
Darius the Great was so anxious to leave a message for those who were to follow him
that he had it carved high on a cliff in cuneiform in three languages. For good measure, he
added a fearful curse to anyone who might deface it. "Saith Darius the king: if thou shalt behold
this inscription or these sculptures, and shalt destroy them . . . then may Ahura Mazdah slay thee,
and may thy race come to nought." Did travelers tremble? Apparently not. Cuneiform was no
longer in use a few centuries later, and in fact the curse remained unintelligible even to scholars
until the middle of the 19th century.
We are used to the idea that shifts in the natural order—the changing of climates, the
evolving of species, the comings and goings of ice ages—are slow and measured, providing a
steady base line against which all the restless flutterings of humankind can be seen in
perspective. But the rate of environmental change—gradual enough when nature sets the pace—
is becoming so sensitive to human intrusion that the old assumptions need to be reconsidered.
The story of the next 100, 1,000, 10,000 years is likely to be the story of what human beings do
even more than what climates and water tables and geological formations do. Indeed, the
impacts of human behavior on the natural world are likely to be so profound that geology and
seismology and hydrology might soon need to be counted social sciences as well as physical
sciences. The ability to induce changes in climate, to provoke seismic activity, to reshape land
contours millions of years in the making, to re-channel underground flows of water—by design
or by accident—are likely to be in the human repertory before long. And for that matter, the
constitution of our species may soon depend more upon genetic engineering and developments in
artificial intelligence than on the slower rhythms of natural selection.
If those things are so, how can one even begin to focus intelligently on the rate of
technological change? We often look behind us in history to try to get some sense of the pulse
and cadence of passing time. "Without a long running start in history," Lewis Mumford says,
"we shall not have the momentum needed to take a sufficiently bold leap into the future." Ten
thousand years ago, the plains north of Nevada had only recently emerged from under a sheath of
ice a mile thick. Ten thousand years ago, Stone Age hunters elsewhere, speaking a language that
no one now could make out, were learning for the first time to plant seeds in the ground and to
harvest the result. Can we use that span to measure how much change we might expect over the
next 10,000 years? Clearly not, since the rate of technological innovation promises to be
infinitely more rapid in years to come than it has been in years past. The distance we have come
from the time of that tentative farmer, scratching the ground with a stick, is nothing compared
with the distance—the potential distance at least—separating us from those who will follow.
20
And human habits, every bit as volatile and as elusive, are likely to change in dramatic
ways as well. What are the odds that people will have so grown in number and will have devised
so many new ways to cope with the elements that they will move to places now thought to be
remote and uninhabitable? Pacific atolls, for example, or polar ice-caps? What are the odds, for
that matter, that people will have so befouled the surfaces of the earth that they will seek a new
habitat underground? What are odds that a mineral for which no one now can imagine any use
will come to be seen as valuable enough to be worth the risking of lives? Uranium had no
known uses as recently as 100 years ago.
A repository like the one proposed at Yucca Mountain is very apt to change the landscape
of human sensibility as well as the landscape of fact. What we know about the perversities and
the obsessions of our own kind should make us very sensitive to the likelihood that its sheer
presence will concentrate human energies in new ways and induce new forms of inventiveness.
The danger is not so much that the warning system will fail to alert a future civilization but that it
will do so all too well. Some people may come to believe that a powerful weapon lies buried out
there in the middle of enemy territory, waiting only to be activated. What ingenuities might that
provoke? Some may come to believe that the remains of an ancient culture lie buried out there in
the middle of a new one, set in the deepest tombs the age could dig and protected by a
mysterious curse. What curiosity might that excite? Some may come to believe that a thing of
supernatural force and energy lies buried out there in the middle of a remote desert, crowned by
monuments so large and exuberant that they cry out for attention. What religious awe might that
inspire?
We do not know how to answer these questions or even to phrase them intelligently. And
precisely because that is so, we must accord them a special measure of respect and count our
inability to come to terms with them as reasons enough to move ahead in this matter with
extreme caution. "Human beings have gotten pretty good at looking into deep space," says a
thoughtful consultant to the Department of Energy, "but we are really no good at looking into
deep time."
Thus the moment may have come to abandon the cool, measured language of technical
reports—all that talk of "perturbations" and "surprises" and "unanticipated events"—and simply
blurt out: "Ten thousand years! That's incredible!" To speak in this way is not just to indulge in
a passing exclamation of wonderment. For the notion that one can actually see something across
a span of 10,000 years really is incredible.
The most mature and accurate scientific report we can issue, it seems to me, would
conclude: We do not know, we cannot know and we dare not act as though we do know. To
speak thus is not to introduce a note of drama into what can otherwise seem a dry and technical
business but to assess the matter in as rational and unemotional a way as language permits.
Things will change drastically over the next few hundred years—never mind the next few
thousand—and in ways that we cannot, by definition, foresee. To think otherwise is unrealistic,
unscientific and more than a little crazy.
21
What, then, should the nation do? When one is faced with such high levels of
uncertainty, the wisest course would presumably be to preserve as much flexibility as possible
and to turn to irreversible measures only if there are no viable alternatives. Deep geological
entombment is clearly one of the least reversible options that can be imagined; indeed, that has
long been regarded as its principal virtue.
Federal policy, as I noted earlier, has been to assure that "waste management problems
shall not be deferred to other generations," and many environmental groups have shared the same
view. Geological burial—at first glance, anyway—looks like an ideal way to accomplish that
since, after all, it "removes" the wastes from the environment and solves the problem once and
for all. But in many ways entombment does just the opposite. It deliberately poisons a portion
of the natural world for an endless stretch of time and in doing so it not only leaves future
generations with thousands of tons of the most dangerous rubbish imaginable on their hands but
makes it as difficult as the state of our technology permits for them to deal with it. We cannot
promise our own children—never mind those who follow hundreds or thousands of years
hence—that they will be safe from the wastes. And so long as that is so, we are not taking the
problem out of their hands so much as we are taking the solution out of their hands.
So perhaps the Government should relax its insistence on immediate and irreversible
burial and turn to forms of storage that allow both continuous monitoring and retrieval. In the
face of all the doubts and uncertainties that attend nuclear waste management, such a policy
maximizes flexibility and keeps options open. That may sound like the Charlie Dressen solution.
But it also may be the wisest stratagem our age can devise.
The Continuing Controversy Over Nuclear Waste Disposal
The political debate and legal controversies over Yucca Mountain are far from over. One
battlefront has been between the United States and the State of Nevada under the Nuclear Waste
Policy Amendments Act of 1987, Pub. L. 100–202, 101 Stat. 1329–121) & Pub. L. 100–203, 101
Stat. 1330–243), codified at 42 U.S.C. §§ 10101 et seq. As described by Kai Erikson, the 1987
legislation amended the Nuclear Waste Policy Act of 1982 to reduce the number of candidates
for the permanent high-level nuclear waste storage repository from six sites to one. As it was
commonly understood that that one state would be Yucca Mountain, the statute came to be
known as the “Screw Nevada Bill.”
The 1987 amendments create an unusual selection and approval process. The statute
directs the Secretary of Energy to select the repository site. The Governor of the state in which
the site is located then has sixty days to file a “notice of disapproval”—effectively a veto of the
Secretary’s choice of location. In turn, the state veto may be overridden by federal legislation.
Secretary of Energy Spencer Abraham notified President Bush of his decision to select
Yucca Mountain as the permanent waste repository in February 2002. Nevada Governor Kenny
Guinn promptly filed a notice of disapproval of the selection. The House and the Senate then
voted to override the Governor’s veto, and President Bush signed legislation in July 2002. As
22
authorized by the Nuclear Waste Policy Act, Nevada filed suit in the U.S. Court of Appeals for
the D.C. Circuit challenging the federal selection of Yucca Mountain. As described in the
following articles, the state challenged the constitutionality of the Nuclear Waste Policy
Amendments Act and raised a variety of environmental claims including the argument that the
EIS for the project did not adequately address the long-term risks of escapement of nuclear
materials after the repository is closed.
In Nuclear Energy Institute v. Environmental Protection Agency, 373 F.3d 1251 (D.C.
Cir. 2004), the court of appeals overturned the selection of Yucca Mountain. Although the court
rejected Nevada’s claim that the statute violated the Tenth Amendment by forcing the state to
accept the repository, it concluded that the EIS that accompanied Secretary Abraham’s decision
violated NEPA because it only considered the risk of storing high-level nuclear waste in the
Yucca Mountain facility for 10,000 years. In contrast, the EIR showed that the radiation
generated from the stored waste would reach its greatest intensity in approximately 3000,000
years.
In response to the court’s decision, EPA prepared a revised EIS that purported to analyze
the risks and potential environmental effects of nuclear waste storage at Yucca Mountain for the
next one million years! According to Elizabeth Cotsworth, EPA’s Director of Radiation and
Indoor Air, “Most EPA rules apply for the foreseeable future—five or six generations. This rule
is for basically 25,000 generations.” The uncertainties and unpredictabilities of this time span
beggar human understanding. As described by National Public Radio:
One way to get a sense for what can change over a million years is to look back into the past. Scientists
do know that life has changed dramatically over the past million years. For example, our ancestors had
skulls that were a third smaller that ours. They had not harnessed fire or started to make clothing.
Neanderthals were still in the future. Rick Potts, director of the Human Origins Program at the
Smithsonian Museum of Natural History, says not to underestimate what can happen in a million years.
"A million years ago is an exceptionally long time," he says. "Even though I study [the time period] 1
million years ago and what [that] means, it takes me time to get my head around it."
David Kestenbaum, EPA Expected to Issue Million-Year-Long Regulation, National Public
Radio, Morning Edition, Nov. 26, 2006.
Although the new EIS paved the way for opening the Yucca Mountain facility, the 2006
general election changed the political subtext as Nevada’s senior senator, Harry Reid, became
the Senate Majority Leader. In a press conference following the November election, Reid
declared that Yucca Mountain is “dead right now.” Erica Werner, Nuclear Waste Dump Faces
New Roadblocks, Associated Press, Nov. 24, 2006. The 110th Congress subsequently reduced
funding for nuclear waste repository, and in January 2008 the Department of Energy and the
primary contractor at the Yucca Mountain site announced that all but 15 “caretaking employees”
would be laid off. The Department also stated, however, that it would continue to draft the
application to the Nuclear Regulatory Commission for a license to open the facility in 2017. A
Shift at Yucca Mountain, New York Times, Jan. 9, 2008.
23
The 2008 general election hastened the demise of the Yucca Mountain site. President
Obama’s budget for the 2009-10 fiscal year eliminated all funding for the project, except for a
small security detail. Matthew L. Wald, Future Dim for Nuclear Waste Repository, New York
Times, Mar. 5, 2009. Congress agreed to the budget cuts, but restored enough funds to enable
the Department of Energy to proceed with the NRC licensing request. Stephen Power, Chu,
Orszag at Odds Over Yucca Funding, Wall Street Journal, Jan. 14, 2010. Then, in March 2010,
the Department withdrew the application and announced that it would create a “blue-ribbon”
panel to study alternatives for the permanent disposal and storage of high-level nuclear waste,
including on-site storage, reprocessing, and other locations for a permanent repository. Siobhan
Hughes, Energy Department Files to Withdraw Yucca Mountain License Application, Wall
Street Journal, Mar. 4, 2010.
The following articles bring the continuing administrative, legal, and political saga of
Yucca Mountain up to date:
Matthew L. Wald, Administration Cannot Drop Bid for Nuclear Waste Dump in Nevada
New York Times, June 29, 2010
In a setback for the Obama administration, a panel of judges at the Nuclear Regulatory
Commission ruled on Tuesday that the Energy Department could not withdraw its application to open a
nuclear waste dump at Yucca Mountain in Nevada.
Making good on a campaign pledge by President Obama, the Energy Department had formally
sought to drop its plan for Yucca Mountain, a volcanic structure about 100 miles from Las Vegas. But
states with major accumulations of waste from nuclear weapons production had petitioned to prevent the
department from doing so. In a 47-page decision, the three-member panel of administrative judges said
the Energy Department lacked the authority to drop the petition because it would flout a law passed by
Congress.
In the Nuclear Waste Policy Act of 1982, Congress directed the Energy Department to file the
application and the commission to consider it and “issue a final, merits-based decision approving or
disapproving the construction,” the judges said. “Unless Congress directs otherwise, D.O.E. may not
single-handedly derail the legislated decision-making process.”
The effect of the decision is unclear for now. Congress would have to appropriate hundreds of
millions of dollars a year for the Energy Department to pursue the application. But the president’s budget
for next year proposes no money at all; and while some members of the House are eager to appropriate
funds, the Senate majority leader, Harry Reid of Nevada, is adamantly opposed to the project.
Yet the decision could keep the application alive long enough for the politics to change. That
would not end the debate over scientific and engineering issues related to the project, which is markedly
different from the waste burial strategy being pursued in other countries. Some experts say the geology of
the Nevada site, selected by Congress in 1987, is unsuitable. The Energy Department would have to
convince the commission that the repository could contain the waste for hundreds of thousands of years.
The three-judge panel noted that the Energy Department was not claiming that Yucca was unsafe
or that there was anything wrong with the 86,000-page application, but was saying only that the site was
24
“not a workable option.” The decision on Tuesday could be overruled by the five-member Nuclear
Regulatory Commission itself. The commission is studying the order, said a commission spokesman,
Eliot Brenner.
President Obama had promised in his election campaign to drop the Yucca Mountain plans if he
were elected. But the states of Washington and South Carolina, with major stores of waste, had petitioned
to prevent the Energy Department from withdrawing the application. So did the Nuclear Energy Institute,
the industry’s trade association; several counties in Nevada; and the National Association of Regulatory
Utility Commissioners, made up of state officials who sit on public service commissions.
The state officials are concerned because the Energy Department’s waste program has been
mostly financed by electricity consumers, who pay one-tenth of a cent per kilowatt-hour into a nuclear
waste fund. The state commissioners have also asked that payments to the fund be suspended because
there is now effectively no program to find a burial spot. About $10 billion has been spent so far.
In announcing his intention to give up on the Yucca Mountain plan, Mr. Obama said he would
establish a commission to seek solutions to nuclear waste. But the commission, which began meeting this
year, is not looking for alternative sites but considering ways of recycling and reusing some of the waste.
That could reduce the number of repositories needed, but at least one would still be required; national
policy still dictates that the waste should eventually be buried.
Stephanie Mueller, an Energy Department spokeswoman, said the agency was “confident that we have the
legal authority to withdraw the application for the Yucca Mountain repository.”
“We believe the administrative board’s decision is wrong and believe that the Nuclear Regulatory
Commission will reverse that decision,” Ms. Mueller said. But Steve Kerekes, a spokesman for the
Nuclear Energy Institute, said the ruling signaled that the Yucca Mountain licensing effort would
continue.
New Fight Breaks Out on Nuclear Dump Site
Tennille Tracy, Wall St. Journal, Jan. 31, 2011
Republican lawmakers are trying to revive plans for a nuclear-waste dump at Yucca Mountain,
Nevada, setting up a showdown with the Obama administration over its efforts to abandon the site last
year. In a separate effort, also aimed at re-starting the Yucca Mountain project, state officials in South
Carolina and Washington are preparing to go to court in March to challenge the administration's actions.
The moves highlight an energy-policy dilemma for the Obama administration. President Barack
Obama in his State of the Union address listed nuclear power among the "clean energy" technologies the
government should promote. But the proposal to develop a permanent nuclear-waste storage facility at
Yucca Mountain, about 100 miles from Las Vegas, faces strong opposition from Senate Majority Leader
Harry Reid, a Nevada Democrat.
The nuclear-power industry, meanwhile, supports the Yucca project. Radioactive waste is
currently stored at dozens of locations around the country for lack of a permanent repository.
Both South Carolina and Washington are home to large collections of Cold War-era nuclear waste, and
members of Congress representing these radioactive sites, including Rep. Doc Hastings (R., Wash.) are
leading the effort to revive the Yucca Mountain facility. They argue that a 1982 law prohibits the
administration from abandoning the Yucca Mountain project, which Congress designated as the nation's
25
first nuclear-waste repository. Mr. Hastings, chairman of the House Natural Resources Committee, says
the administration "has zero authority to withdraw the [Yucca Mountain] license application."
The Energy Department "is confident that we have the legal authority to withdraw the application
for the Yucca Mountain repository," a spokeswoman said. The Energy Department moved to terminate
Yucca Mountain in March 2010 when it asked the Nuclear Regulatory Commission to withdraw a twoyear-old application to build a repository. Calling Yucca Mountain "not a workable option," the Energy
Department said the science on nuclear-waste storage had evolved since the project was first proposed.
A few months later, in June, a quasi-independent NRC panel dealt a blow to the administration
and denied its request, saying the 1982 Nuclear Waste Policy Act "does not give the secretary the
discretion to substitute his policy for the one established by Congress." The NRC's five commissioners
were then asked to consider an appeal of the panel's decision. They submitted preliminary votes on that
issue in August and September but have not yet issued a decision.
Republicans are pressing the NRC to conclude its review, and are keeping pressure on NRC
Chairman Gregory Jaczko, a former aide to Mr. Reid. In a Nov. 19 letter to Mr. Jaczko, Mr. Hastings and
two other House Republicans said it was "clear you delayed the resolution of this matter" and pressed the
chairman to issue a final ruling. Mr. Hastings and other lawmakers say Mr. Jaczko and the NRC lack the
authority to suspend a safety review of Yucca Mountain. Mr. Jaczko halted this review last year.
An NRC spokesman defended the chairman's decision. "It is the chairman's responsibility and
authority to ensure that agency resources are used properly. He acted properly, and not unilaterally, after
consulting with the chief financial officer, the executive director for operations, and the general counsel."
None of NRC commissioners has disclosed their votes on Yucca Mountain, so it's unclear how many
would support or oppose the project.
Ryan Tracy, Yucca Mountain Nuclear Dump Prospects Dim
Wall St. Journal, Sept. 9, 2011
The prospects for a nuclear waste dump in Nevada dimmed further on Friday when members of
the U.S. Nuclear Regulatory Commission said they had deadlocked on a crucial vote involving the
project. The deadlock, at 2-2 with one commissioner abstaining due to a conflict of interest, means the
Obama administration can continue with plans to scuttle the project.
The NRC vote dealt with a 2008 application from the Bush administration to open a waste dump
at Yucca Mountain. The Obama administration withdrew that application last year, saying the project
wasn't workable because it doesn't have support in Nevada. An independent board overseen by the NRC
had challenged that move, ruling that the administration couldn't legally withdraw an application to open
the site. But on Friday, despite the split vote, the NRC ordered the board to drop the case.
Friday's action isn't likely to end the fight over Yucca but will mean proponents now will see their
fight shift to the courts. In a pending federal court case, a judge has said the commission must make a
decision on the issue and it isn't clear that a 2-2 vote would suffice, according to the National Association
of Regulatory Utility Commissioners, which favors the Yucca site. In a statement, the association said
Friday's split vote left "intact" the independent board's ruling against the Obama administration.
26
The chairman of the House Energy and Commerce Committee, which oversees the NRC, called
on the Obama administration to continue funding the Yucca project. "Today's action means the Yucca
Mountain license application remains alive," Energy and Commerce Chairman Fred Upton (R. Mich.) and
Rep. John Shimkus (R., Ill.) said in a joint statement. Opponents of the Nevada waste site viewed the
split vote as good news. The decision "brings the Yucca Mountain saga closer to its final conclusion,''
Senate Majority Leader Harry Reid (D., Nev.) said in a statement. "I am pleased that the commission is
ready to wrap up all work on Yucca licensing."
Friday's decision was a victory for Gregory Jaczko, the chairman of the commission since 2009
and a former science adviser to Reid. Mr. Jaczko has ordered the close of the agency's safety review of
the project, saying it is clear that the Obama administration didn't intend to move forward, and sought to
prevent the results of the review from becoming public. The NRC's inspector general has also said Mr.
Jaczko strategically kept information from other commissioners in order to secure their support for
pulling funding from the review this year. Mr. Jaczko has said he informed his colleagues and followed
the law.
Yucca Mountain has long been eyed as a destination for America's ever-growing pile of
radioactive used nuclear fuel, and Congress designated it as such in 2002. This summer a presidential
panel of experts recommended that the U.S. revamp its nuclear waste policy and find a disposal site with
local support. The NRC deadlocked because Commissioner George Apostolakis recused himself from the
vote, citing a conflict of interest due to previous academic work on the issue.
Tennille Tracy, Panel Urges Quick Action for Nuclear Waste Plan
Wall St. Journal, Jan. 26, 2012
The U.S. government should move quickly to deal with a growing stockpile of radioactive
nuclear waste after abandoning a plan to store the waste at Yucca Mountain in Nevada, a presidential
panel said Thursday. After two years of research, the Blue Ribbon Commission on America's Nuclear
Future said the government has an "ethical obligation" to deal with the country's nuclear waste and to
"avoid burdening future generations" with the task.
The commission, formed by President Barack Obama in 2010, said the U.S. should build
temporary storage facilities to handle radioactive waste until a permanent solution for disposal is found.
Lacking a place to ship their waste, nuclear power plants store the material on-site—a practice that has
been questioned in the wake of the Fukushima Daiichi disaster last year in which pools containing spent
fuel were at risk of losing their water.
Nuclear-power companies, which have long urged U.S. officials to develop a comprehensive plan
for nuclear waste, said the panel's report could prompt the government to act. The panel's
recommendations will "reform and re-energize the country's high-level radioactive waste program," said a
group of nuclear power organizations, including the National Association of Regulatory Utility
Commissioners and the Nuclear Energy Institute, whose members include Exelon Corp., NextEra Energy
Inc. And Duke Corp.
The commission, led by former Rep. Lee H. Hamilton (D., Ind.) and former National Security
Adviser Brent Scowcroft, also recommended that annual fees paid by electricity users—equal to about
$750 million a year—be set aside for addressing nuclear waste and not absorbed into the federal budget.
27
Mr. Obama formed the commission after shutting down a repository planned for Nevada's Yucca
Mountain, abandoning a project that had been in the works for decades and raising questions about longterm storage plans. The Yucca Mountain project drew a long list of opponents, including Senate Majority
Leader Harry Reid (D., Nev.). Republicans have criticized the president for abandoning Yucca Mountain,
saying he was bowing to political considerations.
The panel said future efforts to establish a nuclear-waste facility should first win the support of
local citizens. Under its mandate, the panel wasn't permitted to examine whether Yucca Mountain would
be a suitable permanent storage site. The experience in the U.S. "suggests that any attempt to force a topdown, federally mandated solution over the objections of a state or community...will take longer, cost
more, and have lower odds of ultimate success," the panel said. Even finding a place for a temporary
facility could be difficult, the panel said, because people living nearby might suspect that it could become
permanent. For that reason, U.S. officials have to work diligently to develop a long-term solution, the
panel said. The panel also dismissed the idea of reprocessing the waste, a method used in Europe, and
said it would be premature for the U.S. to follow suit.
Nuclear watchdog groups, including the Alliance for Nuclear Accountability, criticized the panel
for failing to endorse a method of on-site storage that involves placing irradiated rods in outdoor casks
fortified by bunkers and berms. This method, known as hardened on-site storage, would eliminate the
need to transport the waste to off-site storage facilities and give scientists more time to develop long-term
solutions, those groups said.
Many of the panel's recommendations will require new laws. The panel released a draft version of
its report last year.
Matthew L. Wald, Court Weighs an Order on Nuclear Waste Site in Nevada
New York Times, August 3, 2012
A federal appeals court indicated Friday that it would issue an order for the Nuclear
Regulatory Commission to resume an evaluation of a possible nuclear waste repository at Yucca
Mountain, a volcanic ridge in the Nevada desert, unless Congress acted by December to resolve
the legal tangle around the project. The commission is required by a 1987 law to determine if the
site, 100 miles from Las Vegas, is suitable, but in 2010, President Obama had the government
stop work on the project, making good on a campaign pledge. If Congress does not resolve the
conflict by mid-December, the federal judges themselves will probably order the commission to
continue its work until its money runs out, the Court of Appeals for the District of Columbia
indicated.
Congress was at a stalemate over Yucca Mountain. Harry Reid of Nevada, the leader of
the Senate’s Democratic majority, has blocked financing but lacks the votes to change the law.
Some Congressional Republicans insist that it go forward. Aiken County, S.C., and the states of
Washington and South Carolina, jurisdictions with extensive stores of military and civilian waste,
sued, arguing that even though Mr. Obama told the Energy Department to withdraw its
application to build the project, the law still required the regulatory commission to consider
Yucca Mountain’s suitability.
In a 2-1 ruling, the three-judge appeals panel said Friday that for the time being, it would
not order the commission to follow the path laid out by the 1987 law. The panel had argued that
28
it has only $10.4 million in hand to conduct the inquiry, far less than it would need. The court
said it would wait until Dec. 14 to see whether Congress would clarify the situation by
appropriating more money or by ordering that no more be spent.
One of the judges, A. Raymond Randolph, dissented, writing that the commission was
“willfully denying” a command by Congress. “Whatever might happen in the future, the fact
remains that Congress has already spoken,” he wrote. And another judge, Brett M. Kavanaugh,
wrote that if Congress did not clarify what the commission should do through its fiscal 2013
appropriations, he would support issuing an order to have the regulatory commission proceed on
considering the license application. The third judge, Merrick B. Garland, did not issue a written
opinion.
It is unclear whether Congress will do anything about Yucca Mountain by December. On
Tuesday, Congressional leaders reached a tentative deal that could put off the need to finalize a
budget until March. That the commission lacks the money to do the job is partly because of
Senator Reid’s success in blocking further appropriations for it. On the House side, Republicans
are proposing the allocation of more money to let the commission finish its licensing decision.
Whether the site would in fact receive a license is not clear. But Lake Barrett, who was the senior
civil servant in charge of the Yucca project from 1992 until 2002, said on Friday that if the
commission were ordered to resume its work, it could release a safety evaluation of the Nevada
site by its staff, which could give Yucca Mountain new momentum. But the administrative law
judges hearing the license application have accepted nearly 300 issues for litigation in the case.
The D.C. Circuit’s opinion is: In re Aiken County, 2012 U.S. App. LEXIS 16093 (D.C.
Cir. 2012). The 112th Congress did not take action to “clarify the situation” as the Court of
Appeals hoped. As described below, however, there is a move in the 113th Congress to stop
charging the utilities for the costs of “permanent repository” until a new one (or perhaps Yucca
Mountain itself) is selected and under construction.
***
The March 2011 earthquake and tsunami in Japan, and the resulting escapement of
radioactive gas from the Fukushima Daiichi Nuclear Power Station, renewed public concern
about the safety of nuclear power and nuclear waste storage in the United States. The following
articles highlight this debate:
John Broder, U.S. Nuclear Industry Faces New Uncertainty
New York Times, Mar. 13, 2011
The fragile bipartisan consensus that nuclear power offers a big piece of the answer to America’s
energy and global warming challenges may have evaporated as quickly as confidence in Japan’s crippled
nuclear reactors. Until this weekend, President Obama, mainstream environmental groups and large
numbers of Republicans and Democrats in Congress agreed that nuclear power offered a steady energy
source and part of the solution to climate change, even as they disagreed on virtually every other aspect of
energy policy. Mr. Obama is seeking tens of billions of dollars in government insurance for new nuclear
construction, and the nuclear industry in the United States, all but paralyzed for decades after the Three
Mile Island accident in 1979, was poised for a comeback.
29
Now, that is all in question as the world watches the unfolding crisis in Japan’s nuclear reactors
and the widespread terror it has spawned. “I think it calls on us here in the U.S., naturally, not to stop
building nuclear power plants but to put the brakes on right now until we understand the ramifications of
what’s happened in Japan,” Senator Joseph I. Lieberman, independent of Connecticut and one of the
Senate’s leading voices on energy, said on CBS’s “Face the Nation.”
Nuclear power, which still suffers from huge economic uncertainties and local concerns about
safety, had been growing in acceptance as what appeared to many to be a relatively benign, proven and (if
safe and permanent storage for wastes could be arranged) nonpolluting source of energy for the United
States’ future growth. But even staunch supporters of nuclear power are now advocating a pause in
licensing and building new reactors in the United States to make sure that proper safety and evacuation
measures are in place. Environmental groups are reassessing their willingness to see nuclear power as a
linchpin of any future climate change legislation. Mr. Obama still sees nuclear power as a major element
of future American energy policy, but he is injecting a new tone of caution into his endorsement.
“The president believes that meeting our energy needs means relying on a diverse set of energy
sources that includes renewables like wind and solar, natural gas, clean coal and nuclear power,” said
Clark Stevens, a White House spokesman. “Information is still coming in about the events unfolding in
Japan, but the administration is committed to learning from them and ensuring that nuclear energy is
produced safely and responsibly here in the U.S.”
Three of the world’s chief sources of large-scale energy production — coal, oil and nuclear power
— have all experienced eye-popping accidents in just the past year. The Upper Big Branch coal mine
explosion in West Virginia, the Deepwater Horizon blowout and oil spill in the Gulf of Mexico and the
unfolding nuclear crisis in Japan have dramatized the dangers of conventional power generation at a time
when the world has no workable alternatives able to operate at sufficient scale.
The policy implications for the United States are vexing. “It’s not possible to achieve a climate
solution based on existing technology without a significant reliance on nuclear power,” said Jason
Grumet, president of the Bipartisan Policy Center in Washington and an energy and climate change
adviser to the 2008 Obama campaign. “It’s early to reach many conclusions about what happened in
Japan and the relevance of what happened to the United States. But the safety of nuclear power will
certainly be high on the list of questions for the next several months.”
“The world is fundamentally a set of relative risks,” Mr. Grumet added, noting the confluence of
disasters in coal mining, oil drilling and nuclear plant operations. “The accident certainly has diminished
what had been a growing impetus in the environmental community to support nuclear power as part of a
broad bargain on energy and climate policy.”
Mitch McConnell of Kentucky, the Senate Republican leader, said that the United States should
not overreact to the Japanese nuclear crisis by clamping down on the domestic industry indefinitely.
Republicans have loudly complained that the Obama administration did just that after the BP oil spill last
spring when it imposed a moratorium on deepwater oil drilling until new safety and environmental rules
were written. “I don’t think right after a major environmental catastrophe is a very good time to be
making American domestic policy,” Mr. McConnell said on “Fox News Sunday.” He said that the
American public and politicians had recoiled after Three Mile Island, rejecting permits for the
construction of dozens of nuclear plants on the “not in my backyard” impulse. “My thought about it is,
30
we ought not to make American and domestic policy based upon an event that happened in Japan,” Mr.
McConnell said.
Mr. Obama has been as supportive of nuclear power as any recent president as he has tried to
devise a political and technical strategy for ensuring energy supplies and reducing greenhouse gas
emissions. Nuclear power, along with expanded offshore oil drilling, “clean coal” development and
extensive support for renewable energy, are part of his “all-of-the-above energy strategy,” an approach
and terminology borrowed from Republicans. But his support for coal and oil as part of a grand
compromise on energy were set back by last year’s mining and drilling disasters, and today’s problems
with nuclear in Japan cannot help. Concerns about earthquakes and nuclear power have been around for a
long time; new questions might also be raised now about tsunamis and coastal reactors.
In Mr. Obama’s State of the Union address and in his budget, he proposed an expansion of
nuclear energy technology and $36 billion in Department of Energy loan guarantees for the construction
of as many as 20 new nuclear plants. That policy will be on the table at a hearing of the Energy and
Commerce Committee on Wednesday, when Steven Chu, the energy secretary, and Gregory B. Jaczko,
chairman of the Nuclear Regulatory Commission, are scheduled to testify. “We will use that opportunity
to explore what is known in the early aftermath of the damage to Japanese nuclear facilities,” said
Representative Fred Upton, Republican of Michigan, the committee chairman, “as well as to reiterate our
unwavering commitment to the safety of U.S. nuclear sites.”
Representative Edward J. Markey, Democrat of Massachusetts and a skeptic of nuclear power
who nonetheless supported expansion of nuclear power as part of the House energy and climate
legislation he co-sponsored, said the United States needed tougher standards for siting and operating
nuclear plants. He said regulators should consider a moratorium on locating nuclear plants in seismically
active areas, require stronger containment vessels in earthquake-prone regions and thoroughly review the
31 plants in the United States that use similar technology to the crippled Japanese reactors. “The
unfolding disaster in Japan must produce a seismic shift in how we address nuclear safety here in
America,” Mr. Markey said.
Matthew L. Wald, Japan Nuclear Crisis Revives Long U.S. Fight on Spent Fuel
New York Times, Mar. 23, 2011
The threat of the release of highly radioactive spent fuel at a Japanese nuclear plant has revived a
debate in the United States about how to manage such waste and has led to new recriminations over a
derailed plan for a national repository in Nevada. Pools holding spent fuel at nuclear plants in the United
States are even more heavily loaded than those at the Japanese reactors, experts say, and are more
vulnerable to some threats than the ones in Japan. However, utility companies have taken steps since the
9/11 terrorist attacks to make them safer.
Adding to those concerns, no plan to move the waste has emerged to replace a proposed
repository at Yucca Mountain in the Nevada desert. President Obama promised to cancel the project
during his 2008 campaign, and last year he told the Department of Energy to withdraw an application that
it had submitted to the Nuclear Regulatory Commission for a construction license.
Frustration in Congress is growing. “You have an unholy mess on your hands,” Representative
John D. Dingell, Democrat of Michigan, told the chairman of the Nuclear Regulatory Commission,
Gregory B. Jaczko, at a House subcommittee last week. “The stuff keeps piling up, and you’ve doubled
31
the amount that you can store in a single pool, but that’s running out. Is there a long-term plan anywhere
in government?”
Congress selected Yucca Mountain as its first choice for a waste site in 1987, pending
engineering studies. Many lawmakers said the Obama administration lacked the authority to stop the
project and should revive it so that waste can be removed from their states. Support for the Yucca
Mountain project is strong among both Republicans and Democrats in the House. But the Senate majority
leader, Harry Reid of Nevada, has promised supporters back home that it is dead.
Even if a national consensus were to emerge to revive the Yucca Mountain plan, it could not
receive nuclear waste for at least 10 years, proponents acknowledge. Before President Obama pulled the
plug on Yucca Mountain, officials estimated that it would take five years to authorize construction and six
years after that before the site was ready to accept fuel, said Brian O’Connell, a nuclear waste specialist at
the National Association of Regulatory Utility Commissioners. For the site to begin accepting fuel within
10 years, “everything would have to be green lights,” he said. “And you could anticipate the instinct will
be to go more slowly because of what happened in Japan.”
Scientists and engineers suggest an interim fix is to store more spent fuel in dry casks, already a
practice at many plants, although moving them to a remote central site would be better. Some of the casks
are at retired or torn down reactor sites and require a high level of security.
South Carolina and Washington State, meanwhile, have sued the federal government, arguing that
it has an obligation to accept the waste, some of which comes from the manufacture of nuclear weapons.
On Tuesday, the United States Court of Appeals for the District of Columbia heard oral arguments in one
case.
The not-in-my-backyard politics of nuclear waste have changed in recent decades. Congress
chose Yucca Mountain over sites in Texas and Washington in 1987, when those two states were
ascendant in the Capitol. The House speaker, Jim Wright, was a Texan, and so was the vice president,
George Bush. The House majority leader, Thomas S. Foley, was from Washington State. Mr. Reid was a
mere freshman senator. Beyond the objections of Mr. Reid’s constituents to opening Yucca Mountain, it
is not clear that it is a good place to bury nuclear waste. One problem is that the courts have interpreted
federal law as requiring the Energy Department to show that the waste can be safely stored in canisters
there for one million years. So far, the department has established only that it can contain the material for
10,000 years.
Examination of the mountain has also shown that if the fuel canisters degrade in millenniums to
come, water would spread the waste faster than initially thought. Formed from volcanic material, the
mountain’s rock was assumed to be barely permeable, but it has cracks through which water travels
rapidly. In addition, the United States has about 72,000 tons of spent fuel from civilian sites and many
tons of military waste — more than Yucca could hold under current laws.
In moving to withdraw the license application for the site last year, President Obama appointed a
special panel to explore nuclear waste disposal, and a preliminary report is due in a few weeks. The
panel’s members have not been asked to propose a specific site. Instead, they are examining issues like
whether the spent fuel should be chemically recycled to recover plutonium produced in uranium-powered
reactors for reuse, as it is in France and Japan. Another option is to develop a new class of reactors that
would transmute nuclear waste into less troublesome materials.
32
It is also debating what procedure the United States should use in selecting a repository, which
would be needed in any case. So far, the political wisdom has been that Congress should choose a
community rather than bargain with localities, although that has been successfully done in some
Scandinavian counties. In the United States, the selection process has led to gridlock and the scattering of
the waste in numerous locations.
Even the federal government’s decision to drop Yucca became a political thicket. When the
Energy Department said in June that it wanted to withdraw its application, a panel of three administrative
law judges said there was no provision in the law to do that, and it rejected the idea. That ruling was
automatically appealed to the full five-member Nuclear Regulatory Commission. One commission
member recused himself because of previous work on the Yucca Mountain issue, and the others seem to
be deadlocked on whether the application can be withdrawn. A 2-to-2 vote would fail to override the
three-judge panel, and its ruling would stand. But Mr. Jaczko, the commission chairman and a former
member of Senator Reid’s staff, has refused to bring the matter to a final vote, leaving it unsettled.
At the House Energy and Commerce Committee hearing at which Mr. Dingell spoke last week,
Representative John Shimkus, Republican of Illinois, asked Mr. Jaczko why he had suspended the
commission’s work on judging the technical merits of the repository. “There’s no legal authority to close
Yucca Mountain,” Mr. Shimkus said, adding that federal law required the commission to judge the license
application. Mr. Jaczko replied that he had acted within his authority as chairman. Mr. Shimkus
countered, “You better be double-checking your facts, because we’re not through with this debate on
legal authority, and I hope you’re well prepared.”
Utility companies have complained about the Yucca decision, too — but not too loudly because
they do not want the lack of a long-term policy to interfere with the potential construction of new reactors
or their ability to operate the 104 that are now running. The Nuclear Regulatory Commission recently
ruled that it was confident that waste could be stored for decades in dry casks, a policy shift that could
help advance the construction of new reactors.
For now, the only national consensus about nuclear waste — that utilities should pay one-tenth of
a cent for every kilowatt-hour that their reactors generate into a federal waste fund — is also threatened.
The National Association of Regulatory Utility Commissioners is suing to end the fee, arguing that it is
not needed to support the waste program because Yucca Mountains has been shelved. Even if the
repository were to open, said Robert Alvarez, a former Energy Department official, the challenge would
be to move spent fuel faster than it is produced. “Even if they had the ribbon-cutting ceremony today, it
will take decades to move the current inventory into a repository,” he said. “By that time, we’ll have a
comparable amount sitting in pools.”
He and others support expanding the use of dry casks. Workers lower a steel box into the spent
fuel pool, place the fuel inside it, drain the box of liquid and then pump it full of an inert gas to prevent
rust. The box is then placed in a concrete-and-steel sleeve on a concrete pad surrounded by concertina
wire and closed-circuit cameras, resembling a basketball court at a maximum-security prison. The dry
casks require no mechanical cooling because the fuel placed inside them has cooled enough so that the
simple circulation of air outside of the steel box will keep the temperature well below the fuel’s melting
point.
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Critics have said that the boxes could become terrorist targets. The nuclear industry maintains
that even if a cask were breached, the worst case would be the scattering of some dry radioactive ceramic
pellets. Yet so far the industry has resisted expanded use of dry casks despite a National Academy of
Sciences recommending their use. And even if that resistance disappeared, some fuel has to stay in the
pool for several years after it is taken from the reactor, until the heat generation is so small that the fuel
will not melt inside a dry cask.
Rebecca Smith, New Risks for Nuclear Plants
Wall St. Journal, Feb. 1, 2012
Nuclear reactors in the central and eastern U.S. face previously unrecognized threats from big
earthquakes, the Nuclear Regulatory Commission said Tuesday. Experts said upgrading the plants to
withstand more substantial earth movements would be costly and could force some to close. The NRC
said it would require nuclear-plant operators to conduct new seismic studies for all 96 reactors in eastern
and central states to determine if the plants could withstand the shaking predicted by the government's
new seismic model.
Updating the U.S. survey of past seismic activity became urgent after a 9.0-magnitude earthquake
and tsunami devastated northeastern Japan last March. The event overwhelmed the defenses of reactors at
the Fukushima Daiichi site, causing widespread damage and radioactive releases. The earthquake
exceeded the level for which the reactors had been designed, calling into question earlier seismic
assessments.
The NRC plans to give nuclear-plant operators four years to re-evaluate risks by running complex
calculations for all structures, systems and components. By law, nuclear plants must be able to withstand
earthquakes "without functional impairment of those features necessary to shut down the reactor,
maintain the station in safe condition and prevent undue risk to the health and safety of the public." The
seismic study "is an important piece of work but it doesn't tell us what needs to be done," said Alex
Marion, vice president for nuclear operations at the Nuclear Energy Institute, a trade organization. "The
model will need to be applied to specific sites and that will take awhile."
Critics said regulators are moving too slowly. "The NRC does not need a new model—it needs a
spine," said Dave Lochbaum, director of nuclear safety for the Union of Concerned Scientists in
Chattanooga, Tenn. The NRC already has sufficient evidence to require immediate upgrades to dozens of
plants, he said, adding that further delay amounts to a "bureaucratic stall tactic." The NRC has said it
needs more information before requiring upgrades. NRC spokesman Scott Burnell said it was possible
"that operators will do the analyses and say, 'Our existing safety margin covers it, so no upgrades are
needed.' We just don't know yet."
Any required retrofits could be expensive. "To go back into some of these older plants and deal
with seismic issues might end up costing more than the plants are worth," said Stephen Maloney, a
partner at Azoulas Risk Advisors in Boston, a consulting firm that works with the nuclear industry. That
could force such plants to close.
The seismic model could influence new seismic maps the U.S. Geological Survey is expected to
issue next year, and could affect building codes and insurance rates. The new model was jointly
developed by the NRC, the U.S. Department of Energy and an industry-funded research group, the
Electric Power Research Institute. The model incorporates information on about a thousand earthquakes
34
that previously weren't cataloged. Those were determined through written records, geologic data, carbon
dating and other methods. The research brings the total to nearly 3,300 quakes in the region since 1568.
The model shows increased hazards at many locations. For example, it indicates that the single
worst earthquake likely to happen in a 10,000-year period in Chattanooga, Tenn., would be nearly twice
as damaging to structures as previously calculated. Scientists found similar hazards at six other locations
where they did spot checks: Houston; Manchester, N.H.; Jackson, Miss.; Topeka, Kan.; central Illinois;
and Savannah, Ga.
Atlanta-based Southern Co. hopes to build two reactors in central Georgia, about 100 miles from
Savannah. The company took the latest seismic information into account and believes the reactors will
meet the standard of the new model, said B.L. "Pete" Ivey, a vice president. But Southern will need to run
calculations for its existing reactors to see if they meet the standard, he said.
Because regulators worry about "low probability/high consequence" events like the one in Japan,
much seismic research now is focused on the central and eastern U.S., an area once seen as less active
geologically than the West. There are 96 reactors in the region, compared with just eight in the West.
Scientists, using computers, satellites and field data, now know there have been many huge earthquakes in
the central and eastern regions of the country. And shock waves travel far in the East because the Earth's
crust is more rigid there than in the West.
Matthew L. Wald, Nuclear Power’s Death Somewhat Exaggerated
New York Times, Apr. 10, 2012
Nuclear energy is going through an odd patch. It refuses to die, but it does not prosper.
This is how modest the nuclear industry’s prospects now look: Senator Lamar Alexander, a
Tennessee Republican who has called for building 100 reactors in the next few years, told a
conference of industry specialists in late March that the long-ballyhooed “nuclear renaissance”
did not really exist anymore. Now, he said, it is an “awakening to the awareness of nuclear.”
But it is an awakening with a price of $30 billion or more. Mr. Alexander was speaking to a
conference convened on the 33rd anniversary of the Three Mile Island accident, a few weeks after
the Nuclear Regulatory Commission gave permission to build a power reactor for the first time in
more than 30 years, for the twin Vogtle near Augusta, Ga.
Those will cost $14 billion, if all goes well, and more if it does not. A few days after he
spoke, the commission approved a license for another pair of reactors in South Carolina, which
will cost about the same. Several other companies are laying out hundreds of millions of dollars
in planning for reactors that may or may not get to the groundbreaking stage.
The industry’s three great recent stumbling blocks, the Fukushima accident of March
2011, the exceptionally low price of natural gas and a recession that has stunted demand for
power, mock the idea that dozens of new reactors are waiting in the wings. But in an era of worry
over global warming, support is plentiful for at least keeping a toe in the water. “Even if global
warming science was not explicitly invented by the nuclear lobby, the science could hardly suit
the lobby better,” complained a book published last month, “The Doomsday Maching,” a polemic
on the evils of splitting the atom. In fact, the industry continues to argue that in the United States
it is by far the largest source of zero-carbon energy, and recently began a campaign of upbeat ads
to improve its image.
35
According to the authors of “The Doomsday Machine,” Martin Cohen and Andrew
McKillop, “In almost every country — usually for reasons completely unrelated to its ability to
deliver electricity — there is almost universal political support for nuclear power.” That is
probably an exaggeration, with Japan leaving almost all of its 54 reactors idle at the moment
because of the Fukushima Daiichi triple meltdown, and Germany promising to close its fleet. But
China and India, two countries with enormous demand for electricity and not much handwringing over global warming, are planning huge reactor construction projects.
And even the Japanese catastrophe plays in some quarters as a reason to build new
reactors. For example, the reactors being built in Georgia and South Carolina are the AP1000
model, with the letters standing for “advanced passive,” because emergency cooling relies on
natural forces like gravity, evaporation and convection, not power-operated pumps and valves
that require a supply of electricity, the force that Fukushima simply did not have.
At the same conference that Senator Alexander addressed, Jim Ferland, then the president
and chief executive of Westinghouse Electric, insisted, “If an AP1000 had been there, we
wouldn’t be having this discussion today; that plant would be back on line.” General Electric,
which designed the reactors used by Tokyo Electric Power at Fukushima, has made similar
claims for its new “passively safe” design.
If the nation’s 104 reactors, all but one finished by the 1980s, were eventually replaced, it
would be with equipment that has fewer moving parts and fewer ways to get into accidents. But
they may not be replaced because the competition from other sources of electricity is strong.
In the United States, nuclear power is stumbling forward because of an energy policy of limited
diversity — what President Obama refers to as his “all of the above” strategy. That means loan
guarantees and production tax credits for new reactors, created in the George W. Bush
administration, are viewed favorably in the Obama White House. But “all of the above” also
means support for solar and wind, as well as support for oil and natural gas production, especially
hydraulic fracturing for gas in shale rock. Fracking, as it is known, has turned gas into a
formidable competitor. Gas is priced in a unit called a million B.T.U.’s, a quantity that will
produce about 150 kilowatt-hours, about as much as a small house uses in a week.
When gas was $14 per million B.T.U.’s, it cost 9 cents per kilowatt-hour just for the fuel.
Today, with natural gas priced at about $3 per million B.T.U.’s, the fuel cost to make a kilowatthour is about 2 cents. That does not count the cost of building the plant to burn the gas, but it does
make almost anything else, including zero-carbon sources like solar, wind and nuclear, much less
attractive. In the wings are other competitors, including the possibility of a better reactor. The
Energy Department recently said it might spend $450 million on “small modular reactors” that
could be built in a factory and trucked to sites to replace old coal plants or power small
communities. The government, though, researches far more types of reactors than ever achieve
commercial life.
And the Fukushima meltdowns did not help. “It seems like every time something
happens, you always get these prognostications this is the end, the nuclear industry has come to a
halt,” said William D. Magwood IV, one of the five members of the Nuclear Regulatory
Commission and a former assistant secretary of energy in charge of promoting nuclear power.
36
Fukushima, said Bart Gordon, a former Democratic representative from Tennessee and former
chairman of the House Committee on Science, Space and Technology, was “undermining some
of the environmental converts, so the political issue is more difficult.”
Fukushima certainly did not help the South Texas Project, one of the four selected by the
Energy Department as prime candidates for loan guarantees. That project was in trouble before
March 2011, because an important municipal partner had dropped out. One of the replacement
partners was the Tokyo Electric Power Company, which is now hardly in a position to invest in
new reactors abroad. Another candidate for a loan guarantee, now probably dead, was the Calvert
Cliffs 3 project, about 40 miles south of Washington, which was supposed to be built in a
competitive marketplace, where the price of power was set by natural gas. That made even the
Energy Department rather skeptical about its prospects.
Mr. Magwood argues that the situation is not so dire, though, because the “renaissance”
was never as big as some people assumed. He said he calculated in 2008 that of the 23 or so
projects that were under discussion, only 12 were actually under development, and of those, only
10 faced no real licensing or technical hurdles. But only five of those had clear sources of
financing. He assumed three would be in the first wave; now it is two. The industry insists that
even its small-scale rebirth is a step forward. Those two pairs of reactors could lay the
groundwork for more.
Mr. Ferland said that AP1000s in this country would be easier to build because of the
experience of construction in China. For example, he said, technicians there had misrigged one
heavy component at a plant, bending it slightly and causing a two-week delay. That will not
happen in Georgia or South Carolina, he said. Smaller lessons, like how to lay out cable trays so
they do not occupy space later needed for other components, were accumulating rapidly, he said.
Simply breaking ground on a reactor and finishing it, something this country has not done for 30
years, would be a step forward.
***
Finally, the United States’s failure to open a long-term nuclear waste repository has
created significant legal and monetary liabilities. Eighteen nuclear power plant operators who
have sued the government for breach of contract for failing to take receipt of nuclear waste
materials that presently are being stored on site. The contracts, which were based on the Nuclear
Waste Policy Act of 1982, 42 U.S.C. § 10222, required the Department of Energy to begin
accepting high-level nuclear waste for permanent disposal no later than January 31, 1998. The
United States Court of Appeals for the Federal Circuit has rejected the Department’s defense that
performance of the contracts is not yet possible because of the delays at Yucca Mountain and has
ruled that the United States may be held liable for breach of contract. Maine Yankee Atomic
Power Co. v. United States, 225 F.3d 1336, 1343 (Fed. Cir. 2000); Northern States Power Co. v.
United States, 224 F.3d 1361, 1367 (Fed. Cir. 2000). In a later decision, however, the Federal
Circuit held that the United States is not liable for damages that would compensate the utilities
for costs they incurred in reliance on the construction and operation of the Yucca Mountain
facility before the United States’ breach of contract. The Court also ruled that the utilities’
37
claims for post-breach damages are not barred by the statute of limitations. Indiana Michigan
Power v. United States, 422 F.3d 1369 (Fed. Cir. 2005).
The United States has paid more than $960 million in damages to the utilities. The
United States’ aggregate liability is estimated to reach $16.2 billion by the year 2020. In
addition, sixteen nuclear power companies have filed suit to enjoin the Department of Energy
from collecting the fees that it has charged for the cost of constructing and operating the longterm waste repository. See Matthew L. Wald, U.S. Sued Over Nuclear Waste Fees, N.Y. Times,
Apr. 5, 2010. The nuclear utilities are now seeking political redress as well:
Nuclear Power Firms Push Back Against Fees
Tennille Tracy, Wall St. Journal, Feb. 11, 2011
Buried in the details of President Barack Obama's budget release Monday will be more than $770
million that nuclear-power companies pay each year for a waste-storage site that's years behind schedule.
But this might be the last year the White House can count on that income.
Nuclear-power companies are pressing to suspend the hefty fees they pay into the national
nuclear-waste fund. Created by Congress in 1982, this fund was designed to finance the government's
storage of radioactive waste. And, until recently, it was to pay for a new waste dump at Yucca Mountain,
Nev. But with more than $24 billion dedicated to the fund, and the federal government still years away
from building a storage site, the companies say they are tired of funneling money toward a project whose
fate is uncertain.
"This is what I say: Don't do business with the government when you pay for a service in advance
that they'll perform later," said Brian O'Connell, director of the nuclear-waste program at the National
Association of Regulatory Utility Commissioners.
Debate over the nuclear-waste fee coincides with the Obama administration's effort to promote
nuclear energy as a way to cut down greenhouse-gas pollution and reduce the country's dependence on
foreign oil. It marks only the latest chapter, however, in the fiery battle over nuclear-waste storage. While
a storage facility would be a boon to the nuclear-power industry, it's considered a pariah to people who
live near proposed site locations.
In 2009, the Obama administration started to scrap the facility at Yucca Mountain, about 100
miles from Las Vegas, following years of fierce opposition from Nevada lawmakers, including Senate
Majority Leader Harry Reid (D., Nev.). After the administration decided to abandon Yucca Mountain,
nuclear-power companies, represented by the Nuclear Energy Institute, asked the Energy Department to
suspend the waste-fund fees. The companies argued the government didn't need to collect more fees until
another plan was developed. "There's no more program. And since the fees are supposed to be based on
the program, there shouldn't be a need to collect more money, said Jay Silberg, a partner at the law firm
Pillsbury.
The Obama administration has so far rejected the companies' requests. In November, Energy
Secretary Steven Chu said in a report that there was "no reasonable basis" to halt the payments. Other top
energy officials have said the government needs the revenue to pay for a future storage project. "The fees
collected from the nuclear industry are legally mandated and reviewed every year, and will pay the cost of
38
the eventual, long-term disposition of the materials with alternatives to Yucca Mountain," said Stephanie
Mueller, a spokeswoman for the Energy Department.
Fund fees, paid by utilities or their ratepayers and facilities, are based on a charge of one-tenth of
a cent for every kilowatt-hour of electricity generated at a nuclear plant. Nuclear-power facilities in
Illinois, Pennsylvania and South Carolina have made particularly large contributions to the fund, with
each state responsible for more than $1 billion worth of payments, according to the Nuclear Energy
Institute. Power companies are now considering a lawsuit to suspend the fee until the Energy Department
determines what type of project it wants to pursue and a general timeline on which it wants to pursue it,
Mr. O'Connell said.
But the federal government's failure to build a nuclear-waste site or develop an alternative storage
plan has already cost taxpayers a billion dollars. For the last several years, nuclear-power companies
have sued the federal government for its failure to collect radioactive waste from their facilities, as
required under the 1982 Nuclear Waste Policy Act, and the companies have sought compensation for the
cost of storing the waste themselves.
Some companies have won their lawsuits while others have settled with the government.
According to the Justice Department, the government has already paid the companies $960 million. And
assuming the government will be able to collect the waste by 2020, the Energy Department estimates the
government's liability could reach $16.2 billion. But these lawsuit didn't halt the Energy Department's
ability to collect the fees.
Matthew L. Wald, Come January, Another Try on Nuclear Waste
New York Times Green, Dec. 18, 2012
The incoming chairman of the Senate Energy Committee suggests that the Energy Department
should stop billing utilities more in waste disposal fees than the department is actually spending on
addressing nuclear wastes. And he wants the department to pay for moving some of the wastes out of
spent fuel pools at the nation’s highest-risk reactors and into dry casks.
Ron Wyden, an Oregon Democrat, will take over as the committee’s chairman when Congress begins its
new session next month. In an interview on Monday, he pointed out that the department collects about
$750 million a year in waste disposal fees at the rate of one-tenth of a cent per kilowatt-hour generated by
the reactors that feed those utilities. Yet the government is spending nearly nothing, he noted.
That’s partly because the Obama administration pulled the plug on a proposed repository at
Yucca Mountain, about 100 miles from Las Vegas in the Nevada desert, in its 2009-10 budget request.
Mr. Wyden said the committee would have to take a broad look at the issue of the Energy Department’s
nuclear waste fund. “The utilities are obviously unhappy they’re paying the money,’’ which is being
“hijacked” for other purposes, he said — namely, deficit reduction. The fund now has a balance of $25
billion. “There is a lot of frustration” about the money and the lack of progress, he said.
Collecting money at the same rate at which it is being spent has precedents. “That is how the
Nuclear Regulatory Commission is funded,” Mr. Wyden pointed out. Most of the commission’s budget
39
comes from licensing fees. The electric power industry has been pressing for cuts in the fees, as have
some state officials who regulate the utilities. Whether Congress will go along is not clear, but every part
of the nuclear waste question is now on the table.
The waste disposal fees were enshrined as law in the 1980s and are the last surviving element of a
three-decade-old national consensus that the Energy Department should evaluate candidate sites, pick the
best one and build a repository for nuclear wastes there. (Congress eventually told the department not to
bother looking beyond Yucca Mountain — an idea that seemed to meet with the approval of everybody
outside Nevada for a long while.)
A blue-ribbon commission that President Obama appointed after shelving the Yucca Mountain
plan recommended starting over and searching for a new site in a process based on the host state’s
consent, as opposed to forcing a repository on an unwilling Nevada. That implies that a permanent
repository is many years into the future, possibly beyond the lifetimes of many of the reactors now
operating. Dominion said in October that it would close its Kewaunee nuclear plant in Wisconsin. And
with the current glut of natural gas, more closings seem possible, which means leaving the wastes behind
— “stranded,” as Mr. Wyden put it — at the sites of defunct reactors.
Meanwhile, as the second anniversary of the Fukushima Daiichi nuclear accident in Japan draws
near, some members of Congress say it is time to reduce the risk posed by spent fuel by moving some of
it to dry casks. Alison Macfarlane, who took over as chairwoman of the Nuclear Regulatory Commission
in June, expressed support for that step before assuming her post, but has not pressed it lately. Mr.
Wyden proposes examining the reactors on a case-by-case basis, focusing on those with a boiling water
design of the type used at Fukushima, to consider which ones should have their spent fuel pools partly
emptied.
As for the search for a permanent burial site, Mr. Wyden said the government should be looking
for volunteers but that the site would have to be technically suitable. He also said he would like to
explore separating the military wastes from the civilian wastes, and perhaps sending them to the Waste
Isolation Pilot Project, which is in a salt deposit near Carlsbad, N.M. The repository is now used for
plutonium-contaminated materials but not high-level waste. The military wastes have been dear to Mr.
Wyden’s heart for 30 years: many of them are in leaking tanks at the Hanford nuclear reservation in
Washington, across the Columbia River from his home state, Oregon. But those wastes would have to be
solidified before they could be buried, and the Energy Department has had great difficulty doing that.
Senator Jeff Bingaman of New Mexico, a Democrat who is head of the committee until the end of
the lame duck session, has already introduced a bill to reform the process of picking a site, but action is
unlikely this year. The lame duck session has failed so far to deal with its central task, a budget and tax
compromise.
***
Perhaps the best way to conclude is to recall the former Secretary of the Treasury, Paul
O’Neil, who said in 2001: “If you set aside Three Mile Island and Chernobyl, the safety record
of nuclear is really very good.” I guess we now must add Fukushima to the list as well.
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