A Blue Ribbon Commission's Proposal for Breaking the Nuclear Waste Stalemate

Susanne E. Vandenbosch and Robert Vandenbosch

In the United States, the role of nuclear power in producing carbon-free energy is threatened by the failure to agree on how to safely dispose of spent fuel. For example, California has passed legislation prohibiting new power plants until this problem is solved. The California nuclear power moratorium was challenged by the Pacific Gas and Electric Company in lower federal courts and finally in the U. S. Supreme Court in 1983. The Supreme Court upheld the California moratorium, ruling that although the federal government under the Atomic Energy Act had the authority to regulate nuclear safety, it did not preempt State regulation in economic and other aspects of nuclear power. Specifically, the Court ruled under the Atomic Energy Act "the states retain their traditional responsibilities in the field of regulating electrical utilities for determining questions of need, reliability, cost and other related state concerns" [Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission et al. 462 U. S. 190 (1983)]. A number of other states have tied licensing or relicensing to progress on waste disposal ^[1]. Some utilities and power plant operators are reluctant to add new nuclear power unless a path to getting rid of their waste is assured. In addition to the waste problem, there are economic and safety issues that challenge the future of nuclear power. Concern about safety may present a significant obstacle in the wake of Fukushima.

In early 2009 President Obama followed through on his campaign promise to abandon Yucca Mountain as a repository for permanent disposal of high-level radioactive reactor waste. This made a shambles of the nation’s nuclear waste disposal policy, stranding waste at all of the nation’s power reactors, waste from submarines and aircraft carriers, and waste from weapons activities at Hanford, WA and Savannah River, SC. In June 2008, President George W. Bush’s Department of Energy had filed a license application with the Nuclear Regulatory Commission for the construction of the repository. The Obama administration’s newly appointed Secretary of Energy, Stephen Chu, announced that Yucca Mountain was "not workable" and that the license application filed at the end of the previous administration would be withdrawn. He also announced that a Blue Ribbon Commission would be appointed to make recommendations on how to manage the disposition of used nuclear reactor fuel.

The Commission was given the somewhat misleading title of "Blue Ribbon Commission on America’s Nuclear Future." In fact the mandate of the Commission was much narrower. Its charter states "The Secretary of Energy, acting at the direction of the President, is establishing the Commission to conduct a comprehensive review of policies for managing the back end of the nuclear fuel cycle, including all alternatives for the storage, processing, and disposal of civilian and defense used nuclear fuel, high-level waste, and materials derived from nuclear activities." ^[2] The Commission was asked to provide a draft report in June 2011, and a final report in January 2012. Both of these deadlines were met, and the final report, Blue Ribbon Commission on America’s Nuclear Future Report to the Secretary of Energy, is available on the Commission’s website at www.brc.gov ^[3]. In this article we review the work of the Commission and its major recommendations.

Work of the Commission

It took almost a year before the members of the Commission were appointed. The Commission has fifteen members and was co-chaired by Lee Hamilton, former Congressman from Indiana, and Brent Scowcroft, former Assistant to the President for National Security Issues during the Ford and George H. W. Bush administrations ^[4]. While neither of the co-chairs has a scientific background, the Commission included a member with a PhD in Geology, Allison Macfarlane, two with PhDs in physics: Richard Meserve (who has also served as chair of the Nuclear Regulatory Commission (NRC) and Ernie Moniz, who has been very involved in nuclear power issues in recent years and served in the DoE. There are also two mechanical engineers, Per Peterson (of the nuclear engineering department at UC Berkeley), and Albert Carnesale, who also has a nuclear engineering degree. The remaining members, Mark Ayers, Vicky Bailey, Pete Domenici, Susan Eisenhower, Chuck Hagel, Jonathan Lash, John Rowe, and Phil Sharp, had diverse backgrounds. The Commission operated in an open and transparent manner. During the first 15 months the Commission met bimonthly in public information-gathering meetings. Most of the time was spent listening to invited presentations by experts or stakeholders, followed by an opportunity for members of the public to present short statements. The present authors participated as members of the public ^[5]. The meetings were Webcast; the Webcasts, transcripts and visual aids were generally posted on the Commission’s website soon after the meetings ^[6]. A concordance of the transcript material is also available on the website. Three subcommittees were initially formed. The Reactor and Fuel Cycle Technology Subcommittee considered technical alternatives to direct disposal of spent fuel in a repository. This subcommittee primarily heard testimony from experts on the pros and cons of reprocessing. The subcommittee also explored whether there were new reactor technologies which might impact nuclear waste disposal. The Transportation and Storage Subcommittee examined temporary storage and transportation issues. The pros and cons of interim storage were discussed. Transportation issues involved coordination of federal, state and local units of government. The Disposal Subcommittee studied the technical, political and social aspects of siting geological repositories. They visited foreign countries to learn from their experience with siting repositories. They also visited the WIPP repository for lower-level defense waste in New Mexico and examined the process for gaining acceptance for this facility. The draft and final reports drew heavily on the subcommittees’ work ^[7]. The Commission staff played a major role in this process. Although the subcommittees had a few public meetings to hear presentations, any meetings where the actual recommendations were developed were not announced to the public. After the draft report was released in July 2011, several meetings were held throughout the country where the draft report was summarized by staff director John Kotek and public comment was solicited. Throughout the process written comments from the public were also encouraged and posted on the website.

We turn now to the eight specific key elements of the recommendation made by the Commission, six of which we discuss in some detail. The wording of the recommendations as given in the Executive Summary are reproduced in parentheses at the beginning of each section.

(1) Siting Waste Facilities
(A new, consent-based approach to siting future nuclear waste management facilities.)

The element of this recommendation that deviates most strongly from the approach used previously is the recommendation that siting should be consent-based. The legislative act that has governed the selection of Yucca Mountain allows the veto of the host state to be over-ridden by a majority of both houses of Congress ^[8]. Although the eventual fate of Yucca Mountain is not certain, this experience suggests that persistent opposition together with political power can thwart a top-down prescriptive approach. The Commission pointed to the eventual success of a consensual process for siting the repository for transuranic defense waste (the Waste Isolation Pilot Plant in New Mexico) and positive siting outcomes in Finland and Sweden as support for this proposal. The Commission however did not mention the current difficulty Japan is having in finding a disposal site using a consensual approach.

In its draft report the Commission was somewhat vague about how to define the communities whose consent would be required, nor was the precise role that state, tribal, and local communities would play described in any detail. This vagueness was the subject of considerable public comment. At the December 2, 2011 meeting of the Commission considering responses to public comment, Disposal Subcommittee co-chair Jonathan Lash summarized these comments: "What is the role of states? At what point can a state or locality opt out? At what point would their agreement be binding? What kind of incentives would the authority have to develop agreements with potential hosts?" ^[9] The Final Report continues to emphasize the need for an adaptive, staged, and flexible process. It concludes that previous siting legislation was too prescriptive. It suggests that state, tribal or local community opt-out would have to be exercised before license application submission. It does not recommend how state consent would be defined, rejecting specifying the use of referendum or a ballot question. The Report suggests that a good gauge of consent would be for states, tribes and local communities to obtain legally binding agreements with the implementing organization. We conclude that considerable work needs to be done to craft legislation to define a consensual approach.

In connection with the siting process, the Commission makes a number of positive suggestions. These include developing a set of basic initial siting criteria that would avoid wasting time on sites that are clearly unsuitable or inappropriate, and developing a final generic regulatory standard that would apply to any site. In the case of Yucca Mountain, Congress eventually mandated the development of a Radiation Standard that was specific to that site. This was partly in response to the failure of the Environmental Protection Agency to come up with a generic standard in a reasonable length of time after a Court decision rejected part of their first attempt at a standard.

(2) New Nuclear Waste Management Organization
(A new organization dedicated solely to implementing the waste management program and empowered with the authority and resources to succeed.)

This recommendation was occasioned principally by two factors. The Department of Energy’s management record of defense nuclear waste has been poor, and there is a notable lack of confidence or trust in its stewardship. Secondly, it is felt that a single-purpose organization would bring more stability, focus and credibility to waste management. The responsibilities of a new organization would be to site, license, build, and operate facilities for both consolidated interim storage (see recommendation 5) and for final disposal (recommendation 4) of civilian and defense spent fuel and high-level nuclear waste. The Commission recommended a federally-chartered federal corporation directed by an eleven-member bipartisan board nominated by the President, confirmed by the Senate, and selected to represent a range of expertise and perspectives. This offers opportunities for politicization, but is probably as independent as one can get without losing accountability. The Board would appoint a Chief Executive Officer for the organization. Since this Officer would serve ex officio on the Board but is included in the recommendation for eleven members, the even number of voting members could lead to tie votes. Congress might want to reconsider the size of the board. It also recommended that the existing roles of the Environmental Protection Agency (setting public safety and health standards), the Nuclear Regulatory Commission (licensing and regulation enforcement), and the Nuclear Waste Technical Review Board (oversight) be preserved.

(3) Access to Nuclear Waste Fund
(Access to the funds nuclear utility ratepayers are providing for the purpose of nuclear waste management.)

The 1982 Nuclear Waste Policy Act created a funding mechanism of a 0.1 cent per kilowatt hour fee to be paid by utilities to a Nuclear Waste Fund. Unfortunately the Act did not sufficiently isolate this fund from other Congressional funds, and the waste management program has had to rely on annual Congressional appropriations from this fund. Senator Harry Reid, presently Senate Majority Leader, has used the appropriations process to block funding for Yucca Mountain. The Commission makes two rather specific recommendations concerning funding. In the short term it suggests the Administration should allow the utilities to remit only the portion of the annual fee that is appropriated for waste management each year and place the rest in a trust account, held by a qualified third-party institution. At the same time changes in budget treatment of annual fee receipts would be required. In the longer term, legislation to transfer the unspent balance in the Fund to the new waste management organization would be needed. The Commission also wants to amend the legislation to allow the Waste Fund to be used for onsite storage.

(4) Develop a Geological Repository
(Prompt efforts to develop one or more deep geological facilities.)

Although there are a few people that believe that future reprocessing or recycling developments might make deep geological disposal unnecessary, the Commission does not accept this view. It states that "Deep geologic disposal capacity is an essential component of a comprehensive nuclear waste management system for the simple reason that very long-term isolation from the environment is the only responsible way to manage nuclear materials with a low probability of re-use, including defense and commercial reprocessing wastes and many forms of spent fuel currently in government hands." ^[10] We (the authors of this article) believe this recommendation is the key to a waste management program. Without a clear path to permanent isolation of long-lived hazardous waste there cannot be public acceptance of the nuclear energy option. Without it the Nuclear Regulatory Commission’s assertion in its Waste Confidence Decision (whose satisfaction is required for reactor licensing) that "there is reasonable assurance that sufficient mined geologic repository capacity will be available to dispose of the commercial high-level radioactive waste and spent fuel generated in any reactor when necessary" is a charade ^[11]. Furthermore, implementing the following Commission recommendation on developing consolidated interim storage facilities will be very difficult without a clear path to permanent disposal. Potential hosts for an interim storage site will be wary that they might become de facto permanent storage sites.

(5) Interim Storage Development
(Prompt efforts to develop one or more consolidated storage facilities.)

The Commission identifies the strongest argument for this recommendation as enabling the transfer of "stranded" spent fuel from shutdown plant sites. This would allow these sites to be completely decommissioned and returned to other uses. Also, interim storage can be used if circumstances require removal of spent fuel from reactor sites in the case of exhaustion of safe storage space or an emergency. Creation of an interim storage site would enable the government to begin honoring the contractual agreement with utilities to start taking title to and removing spent fuel from reactor sites by 1998. The federal government has paid nearly a billion taxpayer dollars (not ratepayer Nuclear Waste Fund dollars, which cannot be used for interim storage) to pay for utility costs for extended on-site storage. The Commission recognizes a difficulty that can occur in siting an interim storage site because of the nature of the material and the potential host’s concern that interim may de facto become permanent. This concern, together with the concern that the existence of an interim storage site might take the pressure off development of a permanent repository, led the framers of the 1987 Nuclear Waste Policy Amendments Act to link the authorization of interim storage sites to licensing of a repository. This Act will have to be amended to allow development of interim storage before a repository is licensed.

(6) Innovation in Nuclear Energy Technology
(Support for continued U.S. innovation in nuclear energy technology and for workforce development. )

It is under this key element that the Commission addresses the contentious issue of whether the U.S. should continue with the "open" fuel cycle, where spent fuel goes intact to a disposal repository, or move towards a "closed" fuel cycle where the spent fuel is reprocessed and some components are recycled into reactor fuel ^[12]. A form of the latter has been adopted in France, where plutonium is recovered from spent fuel and recycled into new fuel for existing reactors as Mixed Oxide Fuel (MOX). There still remains waste that will go to a geological repository. The Commission concludes that it is premature to reach consensus on closing the fuel cycle "given the large uncertainties that exist about the merits and commercial viability of different fuel cycles…." ^[13]. The Commission concludes that a geological repository is needed independent of whether spent fuel is reprocessed. It endorses the important assessment that "no currently available or reasonably foreseeable reactor and fuel cycle technology developments- including advances in reprocess and recycle technologies- have the potential to fundamentally alter the waste management challenge this nation confronts over at least the next several decades, if not longer." ^[14]

We agree with the above assessment. In order to understand its basis, we need to remind ourselves of some physics issues. All U.S. reactors are light-water reactors with a neutron energy spectrum dominated by low energy (eV) neutrons. These can induce fission in the fissile nuclides U-235 and Pu-239. They cannot fission the much more abundant U-238 and the troublesome (from a waste management perspective) Np-237 and other minor actinides such as Pu-240 and Am-241. Fissioning these nuclides requires higher energy ("fast") neutrons from "fast" reactors, usually liquid-sodium metal-cooled. Countries that have adopted a reprocessing strategy such as France had planned to have fast reactors but their development has been fraught with technical difficulties; no fast reactors are presently in use in France. Without fast reactors the energy gain from recycling reprocessed Pu into light water reactor fuel is modest, only about 19% (the Commission Report only mentions this in a rather obscure table ^[15]). A permanent disposal repository is still required for the fission products and higher actinides. And there are proliferation, safety, and terrorism issues with the separated Pu generated during reprocessing.

Two additional "Key" recommendations deal with transportation and global safety, security, and non-proliferation concerns. Actually the most substantive action of the Commission regarding non-proliferation is the conclusion discussed above that it would be premature to decide to reprocess spent fuel at the present time. Un-reprocessed spent fuel is the most proliferation-resistant medium. Reprocessing makes plutonium more accessible for making nuclear weapons.

Although not one of their key recommendations, the Commission also recommended that the National Academies of Science be charged with studying what lessons should be learned from the Fukushima incident.

Summary and Conclusions

In our opinion the most serious omission from the recommendations concerns learning from the Yucca Mountain experience. The Department of Energy has requested that its license application be withdrawn, giving no scientific justification but stating that Yucca Mountain is "not workable." An Atomic Safety and Licensing Board of the Nuclear Regulatory Commission has however rejected this request. The matter is presently before the District of Columbia Court of Appeals. Although the Commission was not a siting Commission and it would have been improper for them to offer an opinion on the suitability of the Yucca Mountain site, it could and should have made a recommendation that the license application review go forward. Many invited speakers and public commenters favored this ^[16]. Some objected to the lack of scientific justification for the license withdrawal. It is generally viewed as having been a political decision. A review could provide valuable information for future repository siting efforts. For example, if the Nuclear Regulatory Commission rejected the license application citing concerns about future seismic and volcanic activity at the site (the tectonic instability of the site), such a ruling could guide the screening criteria for possible future repository sites.

Overall, we find the Blue Ribbon Commission recommendations generally sound. The most important recommendations will require new legislation for their implementation. This includes a new facility siting process, authorizing interim storage facilities, establishing a new waste management organization, and ensuring funding access. The government will need to pay sustained attention to the waste problem to assure timely progress.

Nuclear power will undoubtedly comprise a significant percentage of America’s energy needs in the coming decades. The waste disposal issue is as much political as it is technical. Time will tell if the Commission’s recommendations can be brought to fruition in a rational, responsible manner.

References

1. E. Michael Blake, "Where new reactors can (and can’t) be built", Nuclear News, Nov. 2006, pp. 23-24.
2. www.brc.gov/index.php?q=page/charter
3. January, 2012, www.brc.gov
4. www.brc.gov/index.php?q=commission-members
5. July 15, 2010 : Full Commission meeting at Kennewick (near Hanford), WA.
6. www.brc.gov
7. A fourth subcommittee on commingling of spent fuel and defense nuclear waste was formed in Oct. 2011, 3 months after the draft report was issued.
8. The Nuclear Waste Policy Act (NWPA) of 1982 as amended in 1987 (NWPAA)
9. Dec. 2, 2011 Commission Meeting Minutes
10. P. xi, Final Report Executive Summary
11. Federal Register 75, No. 246, 81037, December 23, 2010
12. This discussion no longer appears in the Final Report Executive Summary, but appears in the full Final Report, pp. 100-106.
13. P. 101, Final Report
14. P. 100, Final Report. "The Future of the Nuclear Fuel Cycle: An Interdisciplinary MIT Study," Cambridge, MA 2011.
15. P. 105, Final Report
16. Gary Hollis, Chair of the Nye County, NV Board of Commissioners, made the interesting observation that the Secretary of Energy’s direction concerning Yucca Mountain is not consistent with the Federal Advisory Committee Act’s prohibition of a sponsoring authority to unduly influence an independent commission. (p. 126 transcript of Dec. 2, 2011 Commission meeting.)

Susanne E. Vandenbosch has publications in Physical Review, Nuclear Physics and more recently in Political Science journals. She is co-author with Robert Vandenbosch of "Nuclear Waste Stalemate: Political and Scientific Controversies" (University of Utah Press), 2007

Robert Vandenbosch is Professor Emeritus of Chemistry and former Director of the Nuclear Physics Laboratory at the University of Washington.

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These contributions have not been peer-refereed. They represent solely the view(s) of the author(s) and not necessarily the view of APS.