Nuclear stalemate: indefinite aboveground storage is a temporary, albeit safe band-aid for a serious wound.

• Author: Melzer, Steven D.

"To say that after 20 years and nine billion dollars spent on Yucca Mountain, that there's not an option, period to me is [a] remarkable statement."

--Senator John McCain, Arizona (1)

INTRODUCTION

The disposal of America's high-level nuclear waste and spent fuel has been the proverbial monster lurking in the bedroom closet for decades. (2) The volume of radioactive waste continues to grow at a steady rate annually, and states are running out of places to store the hazardous byproduct. (3) Congress, anticipating this problem years ago, established a statutory framework for a geologic repository site that all states could use to permanently dispose of nuclear waste in a safe manner. (4) The disposal project has repeatedly stalled, however, due in part to intense politicking, "not in my backyard" mentalities, and logistical issues. (5) Within the past six years, the Obama Administration has pulled the plug on the entire project and sought alternative options. (6) Unfortunately, as factions battle over the best course of action, radioactive waste and spent fuel continue to accumulate at nuclear reactors across the country. (7) This dire situation spurred a court decision that prompted the Nuclear Regulatory Commission to promulgate the Continued Storage Rule (the Rule) in August of 2014, which lifted the moratorium on reactor construction and expansion by allowing indefinite above-ground storage of nuclear waste. (8) The Commission recognized this move as a somewhat temporary solution, (9) but some experts have criticized the agency, contending that the Rule amounts to a band-aid fix that simply prolongs the inevitable permanent disposal problem. (10)

A significant amount of research has emerged elucidating the roller-coaster ride that Yucca Mountain has been for lawmakers, the nuclear industry, and citizens of affected locales. (11) Indeed, the volume of complex issues revolving around nuclear energy and its place in America's energy future is staggering. Not surprisingly, there are many ideas about how to best combat the negative physical byproducts of nuclear energy. (12) Notwithstanding this vast universe, this Note focuses on the validity and wisdom of the Nuclear Regulatory Commission's approach: the September 2014 Rule and accompanying Generic Environmental Impact Statement (GEIS), as well as their combined potential to significantly alter the trajectory of spent fuel storage and disposal in the United States. (13)

Part I will explain the relevant history helpful to understand the political battles and legal issues surrounding spent fuel disposal and the Yucca Mountain project. Parts II and III will analyze the implications of the new Continued Storage Rule and why it likely satisfies all applicable statutory requirements and judicial orders. Part IV will review industry and public reception of the new Rule and analyze the wisdom of its inception from a policy standpoint. Finally, Part V will conclude with suggestions about the trajectory of our nation's long-term spent nuclear fuel storage and permanent disposal.

1. HISTORY AND POLITICS

   1. Background

      Before the establishment of the Nuclear Regulatory Commission (NRC), responsibility for nuclear regulation was delegated by the Atomic Energy Act (AEA) of 1954 to the Atomic Energy Commission. (14) Given the excitement encircling this new source of electric power in the 1950s, the Atomic Energy Commission was primarily focused on encouraging the development of the promising technology in a safe manner. (15) However, the initial surge of public support quickly waned as Americans became concerned with the immense perceived hazards associated with nuclear facilities. (16)

      By 1974, the Atomic Energy Commission had come under widespread assault for a variety of reasons, (17) and Congress summarily decided to abolish the agency altogether. (18) Realizing that the promotional facet of nuclear power should be separated from the regulatory facet, legislators passed the Energy Reorganization Act of 1974. (19) This new statute created the contemporary NRC and charged it with the management of reactor facilities. (20) The NRC began operation in 1975. (21) In hindsight, this reshuffling of responsibility was particularly useful in the wake of the Three Mile Island incident that occurred just five years later. (22) The fledgling NRC was actually quick to respond to the crisis, although the devastating consequences still brought sweeping changes to the agency's regulatory scheme. (23) However, because Three Mile Island was the first major nuclear incident in the United States, it nonetheless grounded the public's fear about nuclear power in reality; namely, that the future of nuclear power was very promising but also tangibly dangerous. (24)

      Since Three Mile Island, U.S. reliance on nuclear power has remained significant. (25) As of July 2014, there were 100 nuclear reactors in locations spread across thirty-one states. (26) Those reactors provide 20% of all electricity consumed in the United States. (27) Nuclear reactors are much more efficient than most mainstream energy sources; for example, the capacity factor (a measure of efficiency) of nuclear energy is 91%--coal plants operate at a capacity factor of around 59% and wind farms hover at 32%.28 The average nuclear facility provides nearly sixteen million dollars of tax revenue for its state and local government, and sixty-seven million dollars in federal taxes. (29) Production of nuclear energy is very clean, particularly when compared with coal plants, but continues to be a polarizing source of electricity due to its perceived danger. (30) The NRC's focus has gradually shifted away from reactor operation risks, however, and towards what is likely the largest problem facing the nuclear industry today--what to do with the massive amount of radioactive waste and spent fuel that are piling up at facilities across the nation. (31)

   2. Dealing with a "New " Problem

      This nuclear fuel storage problem is not a novel issue. Congress passed the Nuclear Waste Policy Act (NWPA) in 1982, (32) having realized that the disposal of radioactive material would become a problem in the future. (33) The NWPA and its subsequent amendments provided the framework within which a permanent geologic repository could be selected. (34) Careful deliberation and study produced nine potential sites, spanning six states. (35) The Department of Energy (DOE) was to conduct additional study on each site, create a short list of three, and present those options to the President, who would make the final decision. (36) Congress was fully aware that the final repository site would be overwhelmingly unpopular within the chosen locale, and thus granted both states and Native American tribes veto power. (37) This veto power could only be overridden by a majority vote in both the House and Senate. (38) The obvious aim of this effort was to help curb the public outcry guaranteed to sprout from the result of the selection process.

      The three locations on the "short list" emerged from the DOE in 1985: Hanford Nuclear Reservation in Washington; a salt formation in Texas; and Yucca Mountain in Nevada. (39) Lobbyists from each state sprang into action. (40) The official process was quickly and notoriously circumvented, seemingly by power politics, when Congress passed an amendment to the NWPA colloquially known as the "Screw Nevada Bill" that established Yucca Mountain as the permanent repository site. (41) Such a result, in hindsight, is not surprising; in 1987, Nevada had very limited influence in Congress. (42) A closed-door meeting of senior lawmakers occurred on December 17, 1987. (43) During this meeting, a bill was introduced that highlighted Yucca Mountain's particular strength as a repository site because of several distinct differences from the Texas and Washington sites. (44) Perhaps partially a result of Nevada's noticeable and suspicious absence at the meeting, the bill was passed only five days later, which effectively sliced the DOE short list to one contender: Yucca Mountain. (45) The Governor of Nevada exercised his veto power but was overruled by a supermajority. (46)

      Despite the success of Texas and Washington in protecting their interests, Yucca Mountain soon proved to be a much more complicated location than previously thought. Technological advances revealed alleged weaknesses in the Yucca Mountain plan, which eventually led to serious questions about the legitimacy of the site. (47) Despite lingering concerns, Congress designated Yucca Mountain as the sole geologic repository for spent nuclear fuel in 2002. (48) The Secretary of Energy issued a statement recounting the massive amount of money, research, and time sunk into the project and the DOE's subsequent conclusion that Yucca Mountain could safely perform its function. (49) The DOE formally submitted the over-8,000-page license application for Yucca Mountain to the NRC in 2008. (50) The decision had been made.

      A year later, on March 5, 2009, the Secretary of Energy confirmed to Senator John McCain in a committee hearing that Yucca Mountain was no longer a candidate for a nuclear repository site, firmly entrenching the Obama Administration in an anti-Yucca stance. (51) This position was heavily criticized by the nuclear industry and several members of Congress, and was generally decried as an overreach of executive power. (52) Quickly thereafter, in January of 2010, the Obama Administration made plans to formally withdraw the license application. (53)

   3. The Withdrawal from Yucca Mountain

      The DOE submitted a motion to withdraw the previously filed application for the licensing of Yucca Mountain to the Atomic Safety and Licensing Board (an entity that answers to the NRC) on March 3, 2010. (54) The DOE noted that "[w]hile DOE reaffirms its obligation to take possession and dispose of the nation's spent nuclear fuel and high-level nuclear waste, the Secretary of Energy has decided that...