Fuel Cycle to Nowhere
U.S. Law and Policy on Nuclear Waste
By Richard Burleson Stewart, Jane Bloom Stewart
Vanderbilt University Press Copyright © 2011 Richard Burleson Stewart and Jane Bloom Stewart
All rights reserved.
The Evolution of U.S. Nuclear Waste Law and Policy
For nearly thirty years after the inception of the nuclear era during World War II, the federal government paid little serious attention to disposing of the most highly radioactive wastes generated by nuclear weapons manufacture and the rise of nuclear power. Disposal of defense high-level wastes took a backseat to the Cold War buildup of the nation's nuclear arsenal. Further, it was assumed that the spent nuclear fuel at power plants would be reprocessed to make new fuel; the problem of disposing of the highly radioactive wastes produced by reprocessing was deferred to the indefinite future. Beginning in the late 1960s, the rise of the environmental movement and of concerns over nuclear proliferation, as well as a number of complementary contingencies, produced fundamental changes in U.S. nuclear policy.
Sharp opposition to nuclear power, which sprang from nuclear power plant safety issues, the unresolved waste problem at reactor sites, and growing public concern over poor government management of wastes from weapons production, prompted the Carter administration to form an interagency task force that recommended federal government initiatives to dispose permanently of power plant and weapons wastes. In response, Congress enacted the 1982 Nuclear Waste Policy Act (NWPA), which mandated the Department of Energy (DOE) to implement an ambitious blueprint for rapid siting and construction of two repositories for disposal of these wastes, with a 1998 target for federal takeover of nuclear power wastes. Due to opposition from potential host states and delays and cost overruns in the siting program, Congress in 1987 short-circuited the siting process: it designated Yucca Mountain in Nevada as the sole candidate site for a repository and cancelled the second repository. Congress also responded to the lack of disposal facilities for low-level radioactive waste—a problem also identified by the Carter task force—by enacting legislation in 1980, modified in 1985, aimed at fostering a system of regional state compacts to develop such facilities.
Both sets of statutory programs have failed completely, leaving the nation's nuclear waste policies in disarray. Under the NWPA, Nevada strenuously resisted federal imposition on the state, over its objections, of a repository to dispose of all of the nation's most highly radioactive wastes. It succeeded in delaying Yucca's development until the election as president of Barack Obama, who opposed Yucca during the 2008 Nevada Democratic presidential primary. The Obama administration has since terminated the Yucca repository, although DOE's authority to withdraw its Yucca license application to the Nuclear Regulatory Commission (NRC) has been challenged and is currently being litigated. Although Yucca may yet be built, it faces many obstacles; these will be overcome, if at all, only after many years—probably decades. This leaves the nation today with no disposal pathway for massive amounts of the most highly radioactive wastes. In addition, the regional compact scheme envisaged by Congress to develop new disposal sites for growing volumes of civilian low-level radioactive wastes has failed to establish a single new facility.
There is, however, a brighter aspect to the story of U.S. nuclear waste policy. DOE eventually succeeded in developing, over a twenty-year period, the Waste Isolation Pilot Plant (WIPP), a repository near Carlsbad, New Mexico, for burial of highly radioactive transuranic (TRU) wastes from weapons fabrication. WIPP is now the only operating deep geologic repository in the world; it has successfully been receiving and disposing of TRU wastes since 1998. This was accomplished not according to any blueprint made in Washington, but through a long process of contestation, negotiation and compromise between DOE and the State of New Mexico, which eventually concluded that its concerns and interests had largely been met and accepted the facility.
Recently, President Obama has strongly supported expansion of nuclear power in the United States as part of a strategy to address climate change and to serve economic and other objectives. History strongly suggests, however, that the public and many states may not support—indeed, may effectively block—any major expansion of nuclear power so long as there is no credible means for dealing with nuclear power wastes. By canceling Yucca, Obama has abandoned the only location for disposing of that waste that is permitted under current law. The courts may eventually hold that NWPA requires the administration to move forward with licensing Yucca. But Nevada remains implacably opposed. Even if Yucca is eventually licensed after court review, Congress, which has recently refused to appropriate monies for Yucca, would still have to fund construction of the repository. The government has no plan or legal authority to develop an alternative to the Yucca repository.
Energy Secretary Steven Chu has appointed the Blue Ribbon Commission on America's Nuclear Future to address and develop solutions for the nation's nuclear waste dilemmas. The commission must carefully review and analyze the failures and successes of the nation's efforts to date for dealing with nuclear wastes and provide recommendations in order to help set a new and more successful course for the future. This book provides a comprehensive overview of that history and lessons to be learned from it. We hope it will inform the commission's work and future policy.
This chapter lays out the general history. The remaining chapters address specific issues and important aspects of the history in greater detail. Chapter 2 addresses nuclear waste classification and regulation. Chapter 3 covers nuclear waste transportation. Chapter 4 deals with low-level radioactive waste. Chapters 5 and 6 examine in detail the WIPP and Yucca projects, respectively. Chapter 7 addresses the options for dealing with the highly radioactive wastes that currently lack a disposal pathway as a result of Yucca's cancellation. And Chapter 8 offers insights culled from the history recounted and analyzed in the preceding chapters and provides recommendations for the path forward.
Nuclear Weapons Buildup and the Rise of Nuclear Power, 1946–1970
Shortly after the rapid development of the atomic bomb during World War II and the wartime demonstration in 1945 of the terrible power of nuclear technology, Congress adopted the Atomic Energy Act of 1946 (AEA), which created the Atomic Energy Commission (AEC) to run a tightly centralized federal monopoly on all applications of nuclear technologies. Established as an extremely powerful agency with sweeping authority over all nuclear activities, AEC was overseen and supported within Congress by the powerful Joint Committee on Atomic Energy. The Cold War had begun, and AEC's primary mission was to rapidly build up the nation's nuclear arsenal. Involving various national laboratories, AEC carried out research and development on military and other applications of nuclear technologies, and manufactured nuclear weapons for the military. AEC built and operated a huge nuclear weapons production complex consisting of facilities, located in a number of different states, to enrich uranium, irradiate fuel rods through controlled fission in reactors, reprocess the irradiated fuel to extract plutonium, produce other weapons materials, and fabricate bombs. Military imperatives controlled AEC's project mission and activities, and relatively little attention was paid to the large volumes of radioactive and chemically toxic wastes generated in the course of the push to produce weapons.
The main facilities in the AEC weapons production complex were the Oak Ridge Reservation in Tennessee (Oak Ridge), the Los Alamos Scientific Laboratory in New Mexico (Los Alamos), the Hanford Site in the state of Washington (Hanford), the Savannah River Site in South Carolina (SRS), and the Idaho National Laboratory site in Idaho (INL). Oak Ridge housed two plants that separated uranium isotopes to produce enriched uranium that would sustain fission, as well as the first reactor dedicated to nuclear materials production, which produced small amounts of plutonium. Los Alamos was the research center of the Manhattan Project, where the first atomic bombs were designed and manufactured. Hanford Site eventually housed nine nuclear reactors, five reprocessing plants, and a plutonium-finishing plant to produce plutonium for weapons. SRS housed five heavy-water reactors to produce plutonium and tritium. INL was reserved for the design and testing of nuclear reactors and reprocessing plants. The most highly radioactive wastes were generally stored at the sites where they were produced, without any plan for their disposal. Less radioactive wastes were generally disposed of in on-site landfills. These various wastes resulted in significant contamination of the soil and groundwater at many sites.
Although the AEC initially focused most of its attention on nuclear weapons development and testing, the agency was also in charge of developing nuclear reactors to generate electricity for the public. The federal government decided to adapt the basic process it had developed for controlled fission of enriched uranium in reactors to produce plutonium and use it to heat water in reactors to generate steam in order to propel nuclear submarines and to generate electricity for civilian use. The thorium fuel cycle for electricity production, which has significant potential advantages over the uranium fuel cycle in terms of ore abundance, wastes generated, and proliferation resistance while posing distinctive technical challenges, was considered at various times but never fully developed. The 1946 AEA granted AEC sweeping authority to regulate the use, possession, and transfer of nuclear technology and materials, including nuclear wastes. The commission was empowered to grant licenses for the use or possession of nuclear materials, on the condition that the recipient adhere to AEC "safety standards to protect health" AEC standards for licensing possession or use of fissionable material required licensees, in the most general terms, to "minimize danger from explosion or other hazard to life or property."
In 1953 President Dwight Eisenhower announced the Atoms for Peace initiative, under which the private sector, with assistance from AEC and subject to its regulatory oversight, would develop, construct, own, and operate nuclear electric generating plants. In 1954, Congress amended the AEA to authorize and regulate civilian uses of nuclear materials and spur expansion of civilian nuclear power. A central purpose of the amended statute was to "encourage widespread participation in the development and utilization of atomic energy for peaceful purposes," Designed to promote development of a private nuclear industry, it included provisions authorizing private ownership of commercial production facilities. It required AEC to distribute "special nuclear material" such as enriched uranium, capable of sustaining fission, to private parties under license. Congress at the same time confirmed that "the processing and utilization of ... nuclear material must be regulated in the national interest and in order to provide for the common defense and security and to protect the health and safety of the public" AEC's authority to regulate and license nuclear fuel cycle materials and related activities remained extremely broad. The commission's regulatory authority extended to private possession and use of special nuclear material; "source material" such as uranium ore, for making special nuclear material; and "byproduct material" including nuclear wastes.
With substantial financial and technical help from AEC, private industry soon launched into research and development of commercial-scale nuclear power plants. AEC oversaw construction at INL in 1951 of the first reactor—an experimental breeder-type reactor—to produce electricity from nuclear energy. AEC also sponsored the first large-scale commercial light-water reactor nuclear power plant, which began operating in 1957 at Shippingport, Pennsylvania. By the early 1960s, commercial nuclear power plants had begun operation. Most plants were owned and operated by privately owned electric utilities. By 1971, 22 commercial nuclear power plants were operating around the country, and 41 more plants had been ordered. In addition, private firms and institutions were authorized and began to use nuclear materials for medical, research, and other purposes. AEC regulation of private sector nuclear-related activities under AEA extended to all aspects of the nuclear reactor fuel cycle, including ore processing; fuel assembly; fission to generate heat used to produce electricity; and reprocessing of spent fuel rods.
Because AEA does not grant AEC/NRC authority to regulate non-fuel cycle materials and wastes, including naturally occurring radioactive materials (such as radium) and accelerator-produced radioactive materials, the states are responsible for regulating civilian uses of these materials in medical, research, industrial, commercial, and other applications, as well as for the wastes that result from these activities. (However, Congress gave NRC authority over certain naturally occurring radioactive materials in the Energy Policy Act of 2005.)
The development of civilian nuclear power and the desire of the states for a role in that development led Congress in 1959 to amend the AEA in order "to clarify the respective responsibilities ... of the States and [AEC] with respect to the regulation of [fuel cycle] nuclear materials." The legislation, codified as Section 274 of AEA, authorized AEC to enter into agreements with states, allowing states with qualifying regulatory programs to regulate with respect to one or more categories of fuel cycle nuclear materials, including waste byproduct materials. This provision has allowed AEC and its regulatory successor, NRC, to determine which states are capable of taking over regulatory authority (known as Agreement States), while retaining to itself authority over activities in other states. The amendments also provided for training and assistance to states to ensure that public health and safety are protected adequately under state regulatory regimes.
Under the 1959 amendments, however, the commission retained exclusive authority over the construction or operation of any "production or utilization" facility, which would include nuclear reactors and reprocessing facilities, and also over disposal of nuclear wastes that the commission determined to be so hazardous that they should not be disposed of without a license from the commission. AEC implemented this provision by allowing Agreement States to license and regulate disposal of commercial low-level radioactive wastes pursuant to agreement, while reserving to itself direct control over the disposition of more hazardous forms of wastes, including spent nuclear fuel and high-level wastes from reprocessing. A savings clause in the statute provided that nothing in the statute "shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."
The AEA has long been understood as preempting state regulation of fuel cycle materials, except where Congress has withdrawn regulatory authority over such materials from AEC/NRC or has specifically provided for state regulation, as for example in the 1959 AEA amendments establishing the Agreement State arrangement and saving state regulatory authority except with respect to radioactive hazards. While there is no explicit preemption provision in the act, courts have consistently held that the comprehensive sweep of the powers granted to AEC manifested an intent by Congress to preempt state regulation of any matters within the commission's authority, unless Congress has specifically otherwise provided.
For example, Northern States Power Company v. Minnesota, a 1971 decision by the Eighth Circuit Court of Appeals that was affirmed without opinion by the Supreme Court, held that any regulation of radiation hazards by a state that was not an Agreement State was preempted by AEA, and that accordingly Minnesota could not impose restrictions on radioactive waste releases from nuclear power plants that were more stringent than AEC regulations. The court asserted that the federal government "had occupied the entire field of nuclear safety concerns" except in cases of regulation by Agreement States, or in other limited circumstances where the federal government had expressly ceded authority to the states. This conclusion was endorsed by the Supreme Court in its 1983 Pacific Gas & Electric decision addressing the validity of a California law that banned new nuclear power plants until a means had been demonstrated to deal with the nuclear wastes they would produce. The Court, however, sustained the California measure, finding that it was based not on environmental but on economic regulatory concerns, a long-recognized field of state regulation that had not been preempted by AEA. In support of this conclusion, the Court pointed to Section 271 of AEA, which provides: "Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission." (Continues...)
Excerpted from Fuel Cycle to Nowhere by Richard Burleson Stewart, Jane Bloom Stewart. Copyright © 2011 Richard Burleson Stewart and Jane Bloom Stewart. Excerpted by permission of Vanderbilt University Press.
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