Yucca Mountain Laid To Rest

On September 30, 2010, the DOE Office of Civilian Radioactive Waste Management (OCRWM) ceased to exist.  This was the Office established by Congress to study, design, license, construct and operate a repository for the nation’s spent nuclear fuel.  The reasons for its demise have been discussed at length in the trade press and in the news media.  Much of the credit for the end of Yucca Mountain (YM) is given to the Senate Majority Leader, Harry Reid, who built his career around opposing construction of a repository in Nevada.

Although that viewpoint is easy to understand given the political nature of the YM project from the begining, YM had withstood the opposition of Nevada previously.  When the site was first recommended by DOE in 2002, Nevada vetoed the recommendation, but was overruled by a significant majority vote in both the House and Senate.

What changed? In the initial vote to approve YM, it enjoyed a coalition of support that was broad and deep.  The nuclear industry, states with waste in storage, Congress and the rural counties in Nevada where the repository would be built all supported the program.  In the three years immediately following the Yucca site recommendation, OCRWM made a number of mistakes, causing supporters to lose faith. Certification of the Licensing Support Network was struck down when it was challenged by Nevada and submittal of the License Application (LA) to the US Nuclear Regulatory Commission (NRC) suffered numerous delays.

Although OCRWM made significant progress in 2008 when the LA was submitted to the NRC, and docketed, major supporters had already shifted their focus.  One of the drivers for broad support was the “confidence rule” first issued by the NRC in 1984.  The confidence rulemaking responded to legal challenges over the environmental impact of nuclear energy absent waste disposal capability. The NRC rule established expectations for future licensing of nuclear power plants.  Two key parts of the rule were requiring reasonable confidence that the wastes could, and would in due course be disposed of safely; and that wastes could be stored safely in the interim.

As faith in Yucca waned, supporters lobbied for a shift in the focus of the confidence rule. A rule based only on safe, longer term storage, would obviate the need for disposal at YM. The rule was updated on 9/15/2010 with this shift in the basis for continued licensing activities.

As expected, legal challenges to this change were soon raised. The plaintiffs complained that the changed rule did not adhere to NEPA requirements for a thorough environmental impact analysis because no detailed study of long term storage had ever been done.  This was raised as a particular concern for high burn-up fuels.  The plaintiffs won that challenge and the NRC is still working on a supplement to their environmental analyses to support the proposed rule change (as of 10/18/2013).  

Even after completion of an analysis of the impacts associated with long term storage, a new final rule making supporting continued storage is likely to be challenged in the courts again.  There is an argument that waste confidence is based on the eventual ability to dispose of these wastes, not on the ability to store them safely for very long periods of time.  The fact that eventual disposal of these wastes has actually taken several steps backwards rather than progressing could suggest the plaintiffs have a viable rationale for their follow-on suit. That will be an interesting case to follow.

Some have suggested that the nuclear power industry should do more to support development of a repository.  Pressing their Congressional representatives to support aggressive development of a repository (be it Yucca Mountain, or a new site based on the consensus of the host community) would be a good place to start.  There is a belief that such action would be in the utilities best interests.  Unfortunately, a cold calculation of the energy situation may suggest a different approach.  Right now, the operational costs of small merchant nuclear plants are not competitive with natural gas fired plants, and they can’t follow the loads on the grid as easily as a gas plant can.  Shutting down a plant before the end of its useful life involves significant costs.  Funds for decommissioning the plant are collected during the plant’s operating life.  If the plant is shut down early, insufficient decommissioning funds may be available.  This can be a big problem, but the government may provide a solution for them!

The utilities have contracts with the federal government to take their spent fuel and dispose of it.  The government was supposed to start collecting the fuel in 1998.  When the government failed to pick up the spent fuel on time, the utilities sued for partial breach of contract and won their suits. Based on the government’s failure to pick up the fuel for disposal, taxpayers are on the hook for about $500,000,000 per year to cover the continued storage costs at utility sites.  Now, take this logic one step further.  If the NRC loses its waste confidence battle because there is no progress on disposal, it may have to call for the closure of all of the nuclear plants in the US.  If that happens, whose fault is it?  Again, the government is responsible for disposing of these wastes, so any requirement to shut down plants based on a lack of disposal capability would fall on the government again. If forced to shut down before their operating licenses normally expire, the utilities could sue for both their decommissioning costs and the cost of replacement power!  Based on the precedents set by the storage liability, they would have a good chance of winning those challenges.

Loss of broad support is what killed YM, not political pressure alone. The fact that neither the utility industry nor their lobbying group are actively pressing for a solution suggests the status quo is fine with them.  If America loses its nuclear industry, it will be due to the lack of actions from its supporters as much as from the actions of its detractors.  It will be one more technology originated in the US that we wind up giving away to the rest of the world along with the jobs that once went with it.  Right now the incentives are not aligned to encourage anything more than minor research on nuclear power in this country.  If key policy makers want to change that, they need to work tirelessly on resolving all issues affecting the full nuclear life cycle, including disposal.  

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