A reason for holiday cheer–Significant court victories on nuclear waste

By Jim Hopf

DC PerspectivesA United States appellate court recently handed down two long-awaited rulings with respect to Yucca Mountain. As most observers expected, both decisions were decidedly in nuclear’s favor.

Yucca licensing effort

The court essentially has ruled that the administration’s termination of the Yucca licensing process is illegal, as it is in violation of the Nuclear Waste Policy Act (NWPA). On August 13 of this year, the court directed the Nuclear Regulatory Commission to resume the licensing process, but allowed a comment period to determine how best to proceed.

Yucca_Mountain_2 180x144In a more recent (November 18) ruling, the court has given more specific instructions (summarized in this NRC order). It has ordered the NRC to complete the Safety Evaluation Report (SER) for the repository, and to place all licensing documents that support the Yucca application into its official records system, where they can be accessed by the public. The court also requested that the Department of Energy complete an Environmental Impact Statement (EIS) that is required for repository approval.

The administration, as well as the NRC, has tried to argue that even if required by the NWPA, the NRC cannot complete (or continue) the licensing process since Congress has not appropriated the money to do the work. However, it appears that this will not get in the way of the NRC complying with these recent court orders. Documents show that the NRC has $11 million in “unobligated carryover funding” that was originally appropriated in 2011. The NRC staff estimates that $8.3 million will be required to complete the SER.

tour group yucca  mountainA completed SER, with a positive conclusion, would represent a scientific determination by the NRC’s technical staff that the repository would meet all the (strict) technical requirements. Although the full licensing process would still involve steps for legal challenges and other stakeholder input, a final, published SER would essentially settle the scientific/technical question as to whether or not Yucca is a viable solution to the nuclear waste problem.

Nuclear waste fee

The court also handed down a ruling that indefinitely suspends the 0.1 cent/kW-hr fee that the federal government has been collecting from nuclear utilities to support the nuclear waste program. The fund has been collecting ~$750 million per year from nuclear utilities, and has accumulated almost $30 billion, despite the ~$12 billion that has been spent already on the Yucca project. The court order would zero out the fee indefinitely (probably until a new repository project was started, at a new selected site).

The Yucca project has been terminated, or is at least on indefinite hold, and no other repository site is being pursued or characterized. Thus, it is not at all clear what significant (and justifiable) expenses the program would face in the near- to mid-future. Given that any repository operations date has been moved far into the future, any expenses related to shipping and handling fuel have also been moved into the distant future. Thus, the court concluded that there is no reason why additional contributions to the fund are needed and justified.

In an attempt to justify the continuation of the fee, the DOE produced an extraordinarily wide estimated range for the total eventual cost of the repository program; essentially arguing that it had no idea what it would cost. The court sharply disagreed with the DOE’s cost estimates, calling its fee assessment “fundamentally flawed”, “legally inadequate”, and “absolutely useless.” The court, in fact, ridiculed the DOE’s fee assessment (and the absurdly large cost estimate range), saying that it “reminds us of the lawyer’s song in the musical “Chicago”—”Give them the old razzle dazzle.” That is, the court suggested that the DOE was being deliberately dishonest and evasive.

Significant victories

I believe that both decisions will significantly benefit nuclear, for the following reasons:

Impact of SER publication

I’ve always believed that having the NRC publish a SER, which determines that Yucca Mountain is a scientifically and technically sound solution for permanent nuclear waste disposal, would be of significant value to nuclear power, even if the project does not end up going forward.

The fact is that nuclear waste can be stored at plant sites, very safely and at very low cost, due to its miniscule volume. My view is that the biggest negative impact of failure to resolve the nuclear waste problem is that it leaves the public with a false impression that nuclear waste is a unique, intractable problem with no acceptable technical solution. In terms of long-term health/environmental risks, the real truth is that nuclear’s waste problem is more technically solved than that of many, if not most, other industrial waste streams, including those of fossil fuels. The false notion of intractability is a source of significant public opposition to nuclear power. That opposition, in turn, leads to the use of fossil fuels in lieu of nuclear, which results in public health risks and environmental impacts that are orders of magnitude larger than any that will ever be caused by nuclear waste, no matter where or how it’s disposed of.

A SER, with a positive conclusion, published by the NRC’s objective technical staff, could go a long way toward ameliorating those (mostly unfounded) concerns on the part of much of the public. Even if Yucca does not go forward, it can be argued that while Yucca was a technically sound (adequate) solution to the problem, we are choosing to pursue other options that are even better and/or have a greater degree of state and local public support. The point would be that it is not the case that we have no acceptable options (i.e., that we are “doomed” in some respect). We will be able to say that we know the waste will be buried in a way that does not result in significant long-term impacts or risks, given that we know we have at least one technically sound option.

The advantage of a published SER will only be significant if scientists and the nuclear industry and its supporters highlight the SER’s conclusions and strongly make the above case to the public. The publishing of the SER, as well as its scientific significance with respect to the real risks of nuclear waste disposal, will not be noticed by the public unless we make an effort to raise public awareness. A clear message must be sent that the nuclear waste problem has been solved, from a scientific and technical perspective.

Impact of waste fee elimination

As for the waste fee, it’s clear that further contributions are not justified. Not only is there no repository project to spend money on right now, but since any project, and any significant expenditures, have been pushed far down the road, long-term interest on the funds already accrued would likely be sufficient to cover any future expenses. At a minimum, it’s clear that the fee should be suspended until a new site is selected and significant (and justified) program expenditures resume.

One almost has to wonder if the government was deliberately dragging its feet on moving forward with a repository, making the fee essentially a nuclear power tax that the government could use to spend on other things—or, at least, use the trust fund to make the deficit/debt appear smaller. With the fee suspended, and with courts requiring the government to compensate utilities for on-site storage costs, the government may finally have a financial incentive to actually resolve the problem.

The immediate effect of the suspension is to reduce nuclear plant operating costs by 0.1 cents/kW-hr (i.e., $1 per MWh). Given the financial pressures that many older, smaller existing nuclear plants currently (and hopefully temporarily) face, every little bit helps. The fee elimination could well reduce the probability of seeing any more plant closures over the next few years. That, in turn, would significantly benefit both public health and environment, and reduce CO2 emissions.




Jim Hopf is a senior nuclear engineer with more than 20 years of experience in shielding and criticality analysis and design for spent fuel dry storage and transportation systems. He has been involved in nuclear advocacy for 10+ years, and is a member of the ANS Public Information Committee. He is a regular contributor to the ANS Nuclear Cafe.

10 thoughts on “A reason for holiday cheer–Significant court victories on nuclear waste

  1. Ed Pheil

    I think a few regional interim dry storage facilities are needed to put fuel from old plants and sites that are being shutdown. Also some plants are running out of storage space. Large dry storage facilities would be a benefit to the nuclear industry because the waste is easily available for reprocessing to recover the 97% still useful fuel. It would be ideal if the same site could accommodate a pyro-resource recovery facility as well to further shrink the waste volume another factor of 100x.This would minimize shipping of radioactive waste, but that is not a requirement.

  2. Susanne E. Vandenbosch

    Perhaps the suspension of the nuclear waste fee collection will mobilize Congress. The court said there was no nuclear waste disposal program.

  3. Jim Hopf

    K.K.S Pillay,

    I can’t see how a formal scientific conclusion that Yucca meets all the requirements and is therefore an acceptable, viable solution to the waste problem could hurt. Deep geologic disposal has been the consensus among experts for some time.

    We have to keep in mind that this is a purely political (vs. technical) problem. Any long-term health/environmental risks from spent fuel disposal are negligible (orders of magnitude smaller) compared to the risks posed by other industries and (more importantly) non-nuclear energy sources, whether the waste is buried at Yucca or some other “more suitable” site.

    I find the alternative of storing fuel for a century or more to be significantly less desirable, for two reasons. First, as I discuss in the post, it will leave the waste issue “unsolved”, thereby continuing to abet the false public notion that it is an intractable problem with no technically acceptable solution. This will result in reduced public support for nuclear, more fossil fuel use, and public health risks and environmental impacts that are orders of magnitude larger than any associated with disposal at Yucca.

    Second, it’s unlikely to solve, or even ameliorate, the problem. All proposed paths (advanced reactors, reprocessing, etc..) still eventually require a repository, for the disposal of fission products if nothing else. Do you think that siting a repository with “500 year” waste as opposed to “10,000 year” waste will be any easier? If so, you’re naiive. Again, this is a purely political problem. It’s not actually about the long time frames (people are being disingenous whan they claim to really care about what happens thousands of years from now). No, it’s about the thought of being singled out (perhaps against their will) as the nation’s sole “dump site”. No other technical approaches will change any of that.

    At a minimum, if we DO end up storing the stuff for decades/centuries, a scientific ruling declaring that Yucca mountain was a viable and acceptable solution could help ameliorate the (political) damage resulting from leaving the issue unresolved, if we make sure the public is made aware of it. The only significant risk/harm out there is the use of fossil sources, in lieu of nuclear, due to a misguided public mindset that nuclear waste remains a significant risk/problem with no technically adequate solution.

    Stated more simply, the public needs to know the truth about Yucca mountain, i.e., that it is a technically acceptable solution (with negligible long term risks). They deserve to know that truth, especially given the billions of dollars they’ve spent to find that out.

  4. anonymous

    “Understood, but the NRC order essentially sums up the directives of the court.”

    So, you’re going to let the factual error stand? I hate to nit-pick, but I also would hate to have readers confused, especially if they repeat or share/distribute this.

  5. K. K. S. Pillay

    I don’t think either of these decisions is going to help the objective of long-term waste management. Yes, it may be better than nothing. But, it is not going anywhere. The industry will have to pay these fess lump some at a later date.
    The nuclear technology community has to think in terms of real alternatives to Yucca Mountain, which was a bad choice to begin with. This repository was forced on Nevada because no one else wanted in his or her backyard. This is location where we had over a thousand underground nuclear tests and an infinite number of other nuclear tests. Its geology is highly questionable. I am well conversant of what happened in those days and how the decision on Nevada was made.
    There are many alternatives to geologic disposal and none of them have been actively supported by industry or professional organizations. If we objectively examine worldwide attempts at geologic disposal of spent fuels, we ought to recognize that many countries attempted this and none has so far successfully implemented one.
    Alternatives, in practical terms include surface storage for a century or more under safeguards and security. This is a possible alternative for the U.S. as we have plenty of land areas with potential. Also, there have been many proposals by Native American Tribes in the west and Southwest as well as some communities to host such an effort. But, the politics always comes in the way. It is the same with Yucca Mountain and will remain so.
    If the nuclear industry and the professionals do not support alternatives to geologic disposal, we are permanently doomed to failures. Pious platitudes is all I have seen so far.

  6. Mitch

    One reason for that limited success may be a lack of financially powerful and/or politically influential organizations that have a strong interest (financial or otherwise) in promoting nuclear power.

    Has the nuclear professional cadre as yourself sent a missive to Bill Gates and Musk and Paul Allen for any kind of sponsorship or recognition since they’re supposedly ardent nuclear evangelicals now?

    Are you aware of this and is there any way you can swing this?

  7. Jim Hopf


    That issue (changing public/policymaker attitudes) is what I and many others have been struggling with for much of our professional careers, with limited success.

    One reason for that limited success may be a lack of financially powerful and/or politically influential organizations that have a strong interest (financial or otherwise) in promoting nuclear power. As a result, little if any resources are spent actively promoting nuclear, in media ads/messages, lobbying, etc.. We nuclear proponents do not have any resources to do that. Meanwhile, fossil industry ads are ubiquitous, and political influence (lobbying) is profound. Renewables are also influential, as they have all the official “environmental groups” (as well as the gas industry, perhaps) behind them.

    I view the UK as a (relative) bright spot, actually, British opinion on nuclear was quite negative in the ’90s, but now they are among the most nuclear-supportive countries in the world, and the policy of govt. (all three parties, actually) is to proceed with new nuclear.


    Understood, but the NRC order essentially sums up the directives of the court.

  8. anonymous

    The Nov. 18 order was an NRC order (from the commissioners), not, as you say, a court order.

  9. Mitch

    Jim Hopf: My view is that the biggest negative impact of failure to resolve the nuclear waste problem is that it leaves the public with a false impression that nuclear waste is a unique, intractable problem with no acceptable technical solution The false notion of intractability is a source of significant public opposition to nuclear power.

    What I want to hear discussed by nuclear pros like yourself is just how do you turn public opinion around and who’s going to do it and whether it’s already too late in the U.S. and U.K.

Leave a Reply

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>