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Solving the U.S. Nuclear Waste Dilemma

August 2010

Citation: 40 ELR 10783

Issue: 8

Author: Richard B. Stewart

I. Introduction

Current U.S. nuclear waste law and policy is bankrupt. The 1982 Nuclear Waste Policy Act (NWPA) set a 1998 deadline for opening a deep geologic repository to receive spent nuclear fuel (SNF) and high-level waste (HLW) from reprocessing. 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 unrelenting opposition to the Yucca repository eventually succeeded with the election of Barack Obama as President. The Obama Administration has withdrawn funding for Yucca and withdrawn its application for licensing by the NRC. The bankruptcy of the highly prescriptive and preemptive NWPA leaves large volumes of defense nuclear wastes and mounting inventories of spent nuclear fuel without a destination pathway. The failure of Yucca contrasts with the success of the Waste Isolation Pilot Project (WIPP) 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 twentyyear period through a largely unplanned process of contestation 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 Administration has proposed massive government assistance for the construction of large numbers of new nuclear power plants. The failure of the federal government to honor its promises to dispose of spent nuclear fuel, which continues to accumulate at existing power plants, is a potentially potent political weapon for those who oppose expansion of nuclear power. Obama is looking to the distinguished Blue Ribbon Commission on America's nuclear future recently appointed by Energy Secretary Chu to solve his nuclear dilemma.

The tale of the two repositories--failed Yucca and successful WIPP--has important lessons for future policy. The development of one or more repositories for the wastes once destined for Yucca, as well as arrangements for interim consolidated 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 fiat.

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.

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