Where to put it all? Opening the judicial road for a long-term solution to the nation's nuclear waste problem.

• Author: Kenny, Tom

INTRODUCTION

In 1983, Congress passed and the President signed into law the Nuclear Waste Policy Act (NWPA), (1) which directed the Department of Energy (DOE) to enter into contracts with generators of nuclear waste to collect that waste in return for payment of fees. (2) The DOE would use the fees to construct a permanent geologic repository for long-term storage of the nuclear waste. (3) Unfortunately for all parties involved, the government, despite collecting billions of dollars in fees, has never been able to build the repository. (4)

In 1997, nuclear power plant operators asked for and received a writ of mandamus from the D.C. Circuit that barred the government from resorting to an unavoidable delays clause in its contract with the utilities that would have freed the government from liability for breach of its contracts. (5) This Note will argue that the D.C. Circuit exceeded its jurisdiction in issuing this writ and infringed on the exclusive jurisdiction of the Court of Federal Claims to interpret the federal government's contractual obligations. The writ has contributed to stifling efforts to come up with a workable long-term solution to the nation's nuclear waste problem.

Part I will examine the history of the search to find a long-term storage option for nuclear waste, why efforts to build a permanent geologic repository failed, and what led to the D.C. Circuit's issuing an extraordinary writ of mandamus. Part II discusses the effects of the writ on the ongoing nuclear waste litigation in the Court of Federal Claims. Parts III and IV then discuss how the government finally decided to mount a collateral attack against the writ of mandamus and why the Court of Federal Claims correctly found the writ to be void for want of jurisdiction. Part V will address how the Federal Circuit reversed the Court of Federal Claims and reinstated the writ, which once again greatly reduced the possibilities of the interested parties working toward an effective, efficient, and long-term solution to the nation's nuclear waste problem.

1. BACKGROUND: WHERE TO PUT IT ALL?

   Since Enrico Fermi produced the first controlled atomic chain reaction at the University of Chicago during World War Two, the federal government and the states have struggled with how to safely dispose of the waste generated from the production of nuclear power. (6) As of 2007, there were over 100 commercial nuclear reactors operating in the United States, which produced some 2,000 metric tons of waste annually. (7) In 1998, the Office of Civilian Radioactive Waste Management calculated that "commercial reactors had produced 38,400 metric tons of spent nuclear fuel and radioactive waste." (8) That same office determined that if each of the nation's licensed reactors "finishes out its 40-year license, the [amount of] waste will reach 100,000 metric tons by the year 2035." (9) Additionally, these estimates "reflect only civilian nuclear waste, and do not consider the spent fuel from defense-related activities, including nuclear weapons, research, and nuclear-powered submarines, which will account for 2,500 additional metric tons of waste needing permanent disposal." (10) With some of the waste containing materials that will be lethal for more than 200,000 years, (11) the necessity of a stable, long-term solution is obvious.

   1. Options Discarded

      Since the 1950s, the National Academy of Sciences and other agencies in the federal government have studied a number of different options for the containment, storage, and disposal of nuclear waste. (12) In 1959, Nobel Prize-winning physicist Pyotr Kapitsa of Russia proposed sending nuclear waste to outer space, and scientists in the United States discussed transporting nuclear waste on the space shuttle, an idea that lost support after the explosion of the Challenger in 1986. (13) Scientists have discussed the idea of disposing of nuclear waste at the polar ice sheets by placing it in corrosion-resistant containers and allowing it to melt through the ice down to the bedrock below. (14) However, fears of the waste seeping into the ocean led to an international agreement which prohibited this proposal from coming to fruition. (15) "Scientists have also considered the disposal of nuclear waste in holes drilled approximately six miles beneath the Earth's surface. However, scientists currently do not know enough about the effects the extreme pressure and extreme temperature would have on the waste, which effectively negated this option." (16) Scientists both in the United States and abroad have considered other options, such as ocean dumping, subseabed disposal, (17) and reprocessing the spent nuclear fuel to recover uranium and plutonium, but for a variety of reasons, these proposals have never gained much traction. (18)

      In the absence of an alternative, the solution that has emerged is on-site storage at the nuclear power plant facilities. (19) The Nuclear Regulatory Commission (NRC) determined it had "reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating licenses at that reactor's spent fuel storage basin." (20) The NRC also decided to allow for storage "at either onsite or offsite independent spent fuel storage installations." (21) Still, storing spent nuclear fuel at the power plants themselves was never the NRC's preference, possibly because so many of the nation's nuclear power facilities are located near populous areas as well as rivers and sea coasts. (22) The recent disaster at the Fukushima Daiichi facility in northeast Japan following an earthquake in March 2011 focused new attention on the risks involved in storing spent nuclear fuel on site. (23) The earthquake damaged seven of the cooling pools that stored spent fuel rods at the facility and six weeks after the earthquake, three of those seven cooling pools were still emitting radiation. (24) In a later rulemaking, the NRC noted that while it only allowed for a thirty year on-site storage period, it did not dispute that "dry spent fuel storage is safe and environmentally acceptable for a period of 100 years." (25) However, the NRC rulemaking went on to declare that despite this long potential period of safe, on-site storage, it "supports timely disposal of spent fuel and high-level waste in a geologic repository, and by this Decision does not intend to support storage of spent fuel for an indefinitely long period." (26)

   2. An Answer in the Desert: A Permanent Geologic Repository

      Disposing nuclear waste in a permanent geologic repository involves "placing contained and packaged waste into tunnels which are surrounded by several levels of barriers, and that are engineered to contain the waste for several thousands of years." (27) With the goal of establishing just such a repository and with it a long-term solution to the nation's spent nuclear fuel storage problems, Congress enacted and President Reagan signed the NWPA on January 7, 1983. (28) The NWPA declared that "[f]ederal efforts during the past 30 years to devise a permanent solution to the problems of civilian radioactive waste disposal have not been adequate." (29) The NWPA's purpose was "to establish a schedule for the siting, construction, and operation of repositories that will provide a reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high-level radioactive waste and such spent nuclear fuel as may be disposed of in a repository." (30)

      While the NWPA contemplated that the DOE would manage the disposal of nuclear waste, it also contemplated that the nuclear power plant operators would foot the bill through the establishment of a Nuclear Waste Fund. (31) The NWPA authorized the Secretary of Energy to enter into contracts with nuclear power plant operators for the payment of fees in exchange for accepting nuclear waste. (32) Critically, the NWPA effectively made it mandatory for nuclear power plant operators to enter into the contracts by prohibiting the NRC from issuing or renewing an operating license unless the plant had entered into or was negotiating with the DOE to enter into such a contract. (33) Just as critically, the NWPA mandated that in return for the payment of fees, the DOE would begin to dispose of the nuclear waste "not later than January 31, 1998." (34)

      Pursuant to its authority under this section of the NWPA, "[t]he DOE engaged in an administrative hearing process to create a single contract with identical terms" (35) and promulgated its Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste (the "Standard Contract"). (36) The Standard Contract sets out a schedule of associated fees (37) and, as the NWPA mandates, provides for the DOE to begin performing under the contract "not later than January 31, 1998 and shall continue until such time as all [spent nuclear fuel] ... has been disposed of." (38)

      But even before the President signed the NWPA into law, legislators began to raise concerns about the method the NWPA established for choosing the site of the permanent geologic repository. (39) The Act directed the Secretary of Energy, in consultation with interested parties including the Administrator of the Environmental Protection Agency, the Council on Environmental Quality, the Director of the U.S. Geological Survey, the NRC, and the governors of potentially affected states, to issue guidelines for the recommendation of sites. (40) The Act mandated that the guidelines specify, among other factors, "population factors that will disqualify any site from development as a repository if any surface facility of such repository would be located ... in a highly populated area." (41) The Secretary would then nominate five potentially suitable sites and recommend three to the President (42) who would then, "in his...