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The NWPA and the Realities of Our Current Situation

August 2010

Citation: ELR 10795

Author: David R. Hill

Richard B. Stewart's article, U.S. Nuclear Waste Law and Policy: Fixing a Bankrupt System, provides a thoughtful discussion of some of the complex scientific, policy and legal issues involved with nuclear waste generation and disposal. It is packed with useful facts, information, and history, and just the recitation of the history and circumstances of nuclear waste disposal issues and decisions in a readable, understandable form makes a useful contribution.

Stewart argues that the current system of nuclear waste law and po licy, primarily as established by the Nuclear Waste Policy Act of 1982 and amendments to that Act (together, the NWPA) is bankrupt. There are two ways of reading this thesis. The first is that the system is so broken and fraught with problems that it is essentially worthless, and therefore should be discarded (or "liquidated," to use bankruptcy terminology). The second is that while it may have significant problems and difficulties, the system is worth salvaging, perhaps with some elements put aside and others modified, but with many of the basic viable elements retained and moving forward (in bankruptcy terms, a "reorganization"). If Stewart means the former, then I strongly disagree; but if he means the latter, as I believe he does, then I agree with him.

This is not to say that I believe that the NWPA's approach and the process by which the decisions embodied in the NWPA were made represent the best possible approach, or perhaps even a particularly good one, were we only now starting to generate nuclear waste and develop a scheme for its disposal. But of course that is not our current situation. Much as it might be nice to sit quietly in our offices and libraries and think creatively for a few more decades about what to do with spent nuclear fuel (SNF) and high-level radioactive waste (HLW) without regard for the consequences of this delay, I believe that such a course of action would be extraordinarily expensive and complicated, with no prospect at present for producing any better results than those brought about by the NWPA.

David R. Hill was General Counsel of the U.S. Department of Energy from 2005 to 2009. He is currently a partner at Sidley Austin LLP in Washington, D.C, where he is co-head of the firm's global energy practice.

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