Solving the U.S. Nuclear Waste Dilemma

• Date: 01 August 2010

8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10783

A R T I C L E

Solving the U.S. Nuclear

Waste Dilemma

by Richard B. Stewart

Richard B. Stewart is University Professor and John Edward Sexton Professor of Law at the New York University School

of Law, where he directs the Hauser Global Law School Program and the Center on Environmental and Land Use Law.

His scholarship and teaching focus on environmental law and policy and administrative law and regulation.

I. Introduction

Current U.S. nuclear waste law and policy is bankrupt. e

1982 Nuclear Waste Policy Act (N WPA) set a 1998 dead-

line for opening a deep geologic repository to receive spent

nuclear fuel (SNF) and high-level waste (HLW) from repro-

cessing. In 1987, Congress amended the Act to designate

Yucca Mountain in Nevada as the only potential site, and

severely restricted the development of any federal facility for

consolidated storage of nuclear waste. Nevada’s unrelent-

ing opposition to the Yucca repository eventually succeeded

with the election of Barack Obama as President. e Obama

Administration has withdrawn funding for Yucca and with-

drawn its application for licensing by the NRC. e bank-

ruptcy of the highly prescriptive and preemptive NWPA

leaves la rge volumes of defense nuclear wastes and mount-

ing inventories of spent nuclear fuel without a destination

pathway. e fa ilure of Yucca contrasts with the success of

the Waste Isolation Pilot Project (W IPP) repository in New

Mexico, which was developed entirely outside of the rigid

NWPA framework. WIPP, the only operating deep geologic

nuclear waste repository in the world, emerged over a twenty-

year period through a largely unplanned process of contesta-

tion and negotiation between the federal government and the

State of New Mexico. WIPP opened in 1998 and has been

receiving substantial volumes of certain defense wastes from

Department of Energy (DOE) facilities.

At the same time as it cancelled Yucca, the Obama Admin-

istration has proposed massive government assistance for the

construction of large numbers of new nuclear power plants.

e failure of the federal government to honor its promises

to dispose of spent nuclear fuel, which continues to accumu-

late at existing power plants, is a potentially potent political

weapon for those who oppose expa nsion of nuclear power.

Obama is looking to the distinguished Blue Ribbon Com-

mission on A merica’s nuclear future recently appointed by

Energy Secretary Chu to solve his nuclear dilemma.

e tale of the two repositories—failed Yucca and suc-

cessful W IPP—has important lessons for future policy. e

development of one or more repositories for the wastes once

destined for Yucca, as well as arrangements for interim con-

solidated storage, must be based on a step-by-step approach

to decisionmaking that includes the informed assent of the

public and of host localities rather than unilateral federal at.

II. Overview of Nuclear Waste Types,

Sources, and Stocks

Nuclear waste is generally classied into six main c atego-

ries: SNF, HLW, transuranic wa ste (T RU), low-level waste

(LLW), mixed waste that is both radioactive and chemically

toxic and regulated under the Resource Conservation and

Recovery Act (RCRA) as well as the Atomic Energy Act

(AEA), and uranium mill tailings (UMT ). ese categories

are legal constructs that a re often not based on risk-relevant

dierences in their radioactive and other characteristics or

the treatment, management, storage, and disposal issues that

they pose. is article focuses on the more highly radioactive

wastes in the rst three categories.

  refers to the spent f uel rods that

have been irradiated in a nuclear reactor, mostly from civil-

ian nuclear power plants. SNF includes both highly active

but short-to-medium- lived ssion products (principally

cesium and strontium) as well as medium-active but long-

lived radionuclides with half-lives of thousands of years.

 Richard B. Stewart, 

      , 17 N.Y.U. E’

L.J. 783 (2008). It has been abbreviated, c onsiderably revised, and

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J B. S   R B. S, U.S. N W

L  R P. is ar ticle was produced as part

         

        

        

    

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