Today’s Nuclear Power Moratorium

Used nuclear fuel rods have been the political Achilles heel of commercial nuclear energy for decades. Using a very old but effective script, anti-nuclear activists and their allies have long frustrated the development of a permanent geologic waste repository.

By Richard Bornemann | May 1, 2013

Lost in all the happy talk about a nuclear “renaissance” and the Obama’s administration’s oft-repeated “all of the above” approach to general energy policy, is the fact that we’re approaching the first anniversary of a formal moratorium on new nuclear power plants in the US. The moratorium also includes what had been the near-routine granting of 20-year license renewals to existing electric power reactors.

On August 7, 2012, the five-member U.S. Nuclear Regulatory Commission (NRC) voted unanimously to suspend final action on all pending COL (combined construction permit and operating license) applications for new plants, and license renewals for operating units in the existing fleet. The NRC took this action in response to a June 8, 2012 DC Circuit Court of Appeals decision that vacated key provisions of the NRC’s second update of its own generic “Waste Confidence Decision and Rule” (WCD). Years of litigation may lie ahead.


Used nuclear fuel rods have been the political Achilles heel of commercial nuclear energy for decades. Using a very old but effective script, anti-nuclear activists and their allies have long frustrated the development of a permanent geologic waste repository, and then turned around and used their own political successes to claim that there’s “no solution” to the nuclear waste “problem.” It worked like a charm and frightened the public for years, until complementary actions by Congress and the NRC seemed – for a while – to cut the knot.

And while whole books could scarcely cover the issue’s nuances and complex twists and turns, there are a few banner events that can bring us up to speed. The best and most accessible review of the U.S. civilian nuclear waste program was done in 2011 by the U.S. House Committee on Science, Space and Technology.

The Courts – I

This particular issue starts with the NRC’s obligations under the National Environmental Policy Act of 1970 (NEPA). Back in 1971, the DC Circuit Court of Appeals decided, in a Maryland case, “Calvert Cliffs” Coordinating Committee v. U.S. Atomic Energy Commission (predecessor to the NRC), that NEPA required detailed and site-specific Environmental Impact Statements (EISs) from the NRC in order to permit any nuclear plant to be built.

For the industry, the question was how to handle, a specific plant’s waste stream in a site-specific EIS, when it was the federal government – generically – that already “owned” the waste issue. Way back then, the policy was that spent nuclear fuel was to be taken for re-processing, so that its unused uranium, and its usable plutonium byproducts (most of the fuel rod) could be recycled into new fuel.

But then, the Jimmy Carter White House came along, and it banned the reprocessing of spent commercial nuclear fuel, though a huge and privately funded facility was nearing completion, in Barnwell, SC. The Reagan Administration lifted the Carter ban, but it was too late to attract private investment dollars to the volatile politics of it all.

So, there came to be no plan, and utilities were stuck with their “temporary” on-site spent fuel pools, designed to just hold and cool the stuff – until the federal trucks and trains came to cart it off. They’re all still stuck today – as anti-nuclear interests work to turn temporary spent fuel cooling pools into permanent waste repositories – in 30 states.

The Courts – II

Then, in a 1979 Minnesota decision, the DC Circuit threw the NRC a lifeline, allowing it to make generic findings about spent fuel as part of otherwise site-specific EISs:

“We agree with the [NRC’s] position that it could properly consider the complex issue of nuclear waste disposal in a ‘generic’ proceeding such as a rulemaking, and then apply its determination in subsequent adjudicatory proceedings. Where factual issues do not involve particularized situations, an agency may proceed by a comprehensive resolution of the questions rather than relitigating the question in each proceeding in which it is raised.”

NRC, Waste Confidence & Congress

In response to the Court, NRC published its WCD in 1984, and updated it twice afterward. The rule had five formal findings, two of which are key to the whole issue today. One of those was the NRC’s finding “that one or more mined geologic repositories . . . will be available by the years 2007-2009 . . . ” The other key finding was that “ . . . 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 license at [its] spent fuel storage basin.”

Congress had given the NRC every reason for having confidence in its 1984 WCD.

After all, it had only two years earlier passed the Nuclear Waste Policy Act of 1982 (NWPA), which mandated that the U.S. Department of Energy (DOE) characterize a variety of geologic formations in several states, with a first repository available in time for DOE to begin taking physical custody of spent fuel from power plant sites by January 1998. DOE entered into court-upheld binding contracts with nuclear utilities to this end, and electricity consumers have paid the program’s full freight with a 0.1¢ fee per kWh of nuclear generated electricity. To be clear, there’s no taxpayer “subsidy” here.

In fact, electricity consumers have paid about $35 billion into DOE’s Nuclear Waste Fund, and about $15 billion has been spent. So, much has been collected as “user fees,” for a zero result.

The important point, though, is that the NRC’s original 1984 WCD was grounded in something real – a real law, with real deadlines, that had real user fee-based funding.

Nevada & 1987

But by 1986-87, the original NWPA was falling apart politically. States that found themselves on DOE’s list because of one geologic formation or another, were in revolt going into the 1986 elections, and DOE was blamed in some quarters for helping flip the Senate to Democrat control. In those days, though, Democrat control of the Senate was different. For one thing, it made Senator J. Bennett Johnston (D-LA) chairman of the Senate Energy Committee, and, more importantly, chairman of the Energy & Water Development Appropriations Subcommittee. Using 1987 budget reconciliation legislation, Senator Johnston amended the 1982 NWPA, such that only one site, Yucca Mountain in Neveda, would be characterized by DOE. (The Nevada delegation had less power then, and, besides, budget reconciliation cannot be filibustered in the Senate.)

There were several milestones for advancing Yucca as a repository. Once deemed suitably safe by DOE, the Secretary of Energy would make a recommendation to the President, who could approve or disapprove. The Governor of Nevada could veto the President’s approval, and both houses of Congress would have to vote to overturn any veto by Nevada’s Governor. DOE would then file its very lengthy license application for Yucca with the NRC. (By June 2008, all of these things had finally happened).

1990 NRC Waste Confidence Update

The 1987 amendments to the NWPA gave the NRC a new head of steam, a new reality on the ground, with which to better align its updated WCD three years later, when it altered two of the five findings from 1984.

Gone was the finding that a mined geologic repository “will be available by the years 2007-2009 . . .” It was replaced by the NRC’s “reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century . . .” This was reasonable in 1990 because the official Yucca designation was relatively new, and focus had been lost between the 1982 and 1987 versions of the NWPA. The point is that the finding reflected the on-the-ground reality of an all-out focus on Yucca Mountain, a real place designated by law for a real repository.

The other amended finding dealt with the length of on-site storage, and recognized both nuclear plant license extensions and the growing practice of putting spent fuel rods into “dry cask storage” once they’d cooled sufficiently to be removed from spent fuel pools. The NRC stayed with its 1984 finding that spent fuel could be safely stored for 30 years beyond the life of operation but it added that the 30-year clocks “may include the term of a revised or renewed license.”

Obama Cuts off Repository Money after 2008 Election

For several years, Yucca Mountain stayed quiet as it moved along. Appropriations battles slowed it down, and the State of Nevada fought it tooth and nail. But, however slowly the process moved, it did finally culminate in DOE’s actually filing its 8,600-page license application with the NRC in June 2008.

But that was also an election year, and candidate Obama had pledged to block Yucca Mountain. Teaming with Senate Majority Leader Harry Reid (D-NV), an Obama White House could kill Yucca by cutting off the money, ratepayers’ money, collected for a repository.

That they did, starting in 2009, and shortly thereafter, in 2010, DOE formally filed a motion with the NRC to withdraw (“with prejudice”) its Yucca application. That spurred a long battle inside the NRC itself over whether DOE had the right, on its own, to withdraw an application that had been mandated by Congress. The Atomic Safety and Licensing Board (ASLB) – the NRC’s trial level adjudicatory panel – rebuffed DOE’s unilateralism, while a tie-vote at the Commission level, which would have upheld the pro-Yucca ASLB, sat officially unrecorded for months, while parties ran to the courts.

It didn’t matter that pro-Yucca forces eventually won that battle inside the NRC – DOE couldn’t withdraw the application – but money made it all moot. The White House-Reid combination denied the NRC even the appropriations it needed to finish the last of its multivolume Safety Evaluation Report, let alone complete what had been projected to be at least a three-year licensing decision process.

2010 Waste Confidence Decisions Update

It was against the mess of Yucca that the NRC published its last WCD update in December 2010. But this time, the two most important WCD findings had become legal bridges too far.

With regard to any reasonable assurance about when a mined geologic repository would be available, all time estimates were gone. Instead, a repository “will be available . . . when necessary.” And what else could the NRC have said, considering that Yucca Mountain was dead, and the whole program had become untethered to any designated site anywhere?

As for the safety of continued on-site storage, the 30-year number from 1984 and 1990 became 60 years in the 2010 update.

The Courts – III

This brings us to the start of today’s moratorium, when the DC Circuit Court of Appeals vacated the 2010 WCD update in a case brought by New York and three other states.

In short, the WCD was a “major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact.” The latter would allow a less complicated Environmental Assessment (EA), rather than a full-blown EIS.

In truth, the NRC wasn’t given a terrible burden to meet with regard to the safety of 60+ years of on-site storage. New York had pinned its hopes on what it called the inadequacy of the NRC’s analyses of the potential for spent fuel pool leaks and fires, and the State and its allies naturally wanted site-by-site plans and reviews for everything.

But the Court agreed to allow a generic approach. When it came to leaks, the Court criticized the NRC’s reliance on the “negligible” environmental consequences of past leaks, while failing to look at the potential harm of future leaks: “A study of the impact of thirty additional years of [spent fuel] storage must actually concern itself with the extra years of storage.” As for fires, the Court said that the NRC, believing that the risks of fire were very low “did not take into account the consequences of pool fires at all.” But here, too, the NRC was allowed to use a generic approach, and the Court didn’t foreclose the NRC’s taking the EA route.

“When Necessary”

Of course, that’s the big 2010 WCD finding that the DC Circuit vacated, and Court wasn’t unsympathetic to the “social and political barriers” to any permanent repository program.

But judges understand the congressional budget process, so they rejected the NRC in key ways. First, they declined to defer to the NRC’s “interpretation of the political landscape surrounding its field of expertise” in terms of a repository’s becoming available “when necessary.” Secondly, the Court ignored NRC’s view that NEPA didn’t require a “precise date” for the availability of a repository.

Lastly, the Court vacated the reality and force of law itself by rejecting NRC’s position that a repository was inevitable because the “[NWPA] mandates a repository program, demonstrating the continued commitment and obligation of the federal government to pursue one.” In short, congressional promises from 1982 and 1987 meant nothing – not even when backed by consumer dollars – if the normal changing of the guard on Capitol Hill interrupted the appropriations process.

So, the NRC “failed to examine the environmental consequences of failing to establish when one is needed” and the NRC “can and must assess the potential environmental effects of such a failure.” Lastly – the real stinger – the NRC has “no long term plan other than hoping for a geologic repository.”

Where does that leave the NRC, and the future of nuclear power, when the absence of any program or site leaves nothing but “hope” that the law will one day be followed? The Court’s demand for an analysis of the failure to establish a permanent repository probably gives the NRC only one default position: continued on-site storage. This hands the activists what they’ve always pretended to fear, and that is the conversion of temporary storage in 31 states into permanent “repositories.”

Existing reactors can get relicensed in such a situation, but new reactors will face activists armed with a new plank in their state and local lobbying: “Stop the Permanent Waste Site.”

For all we know, the NRC may be able to pull a rabbit out of a hat, to find something other than “hope” that a permanent geologic repository is somewhere on the horizon. The NRC has created a Waste Confidence Directorate “to oversee the drafting of a new Waste Confidence Environmental Impact Statement and Rule” that’s supposed to be finalized no later than September 2014.

But that won’t be the end of it, of course. Any EIS can expose its sponsoring agency to endless rounds of further litigation – more briefs and reply briefs – about the “scoping” of the EIS. In this case, New York and its allies will be back in court with long lists of contingencies and postulated events that the NRC “should have considered” in an adequate EIS.

Naturally, we wouldn’t be here at all if Yucca Mountain had any life or momentum – if the law were being followed, and ratepayers’ dollars were being spent as promised. But all that awaits larger political changes.

Richard Bornemann is a specialist in most landmark Clean Air and Clean Water statutes. He also successfully directed the country’s last contested nuclear power licensing case, establishing vital points of precedent for the technology’s domestic revival. Mr. Bornemann is an energy analyst for the Selous Foundation for Public Policy Research (SFPPR), author of American Energy Independence: A Policy Review 1973-2012 and a contributor to SFPPR News & Analysis.