Fukushima, Yucca Mountain, and the Budget Crisis

The same nuclear waste disposal systems that failed at Fukushima, spent-fuel pools, currently hold over eighty-five percent of America’s nuclear waste.  In addition to being vulnerable to natural disasters, this storage system is also an easy target for terrorists. While others have cited Fukushima and the dangers of these nuclear waste pools as a reason to finish Yucca Mountain, this article argues that a second, just as pressing reason exists to complete a permanent nuclear waste repository at Yucca Mountain: the budget crisis.[1] More simply, finishing Yucca Mountain would (1) help secure the public health and safety by allowing the United States to avoid a Fukushima-like disaster, and (2) help save the United States billions of dollars.

In order to understand the budgetary issues posed by failing to complete Yucca Mountain, it is necessary to establish the legal framework under which Yucca Mountain was born: the Nuclear Waste Policy Act of 1982 (“NWPA”).[2] Congress planned to finance Yucca Mountain through payments from nuclear utilities into the Nuclear Waste Fund (“NWF”). This fund currently contains around $24 billion.

Under the NWPA, the nuclear utilities were required to enter into a standard contract with DOE to make payments into the NWF. Congress required nuclear utilities to sign this contract before the Nuclear Regulatory Commission (“NRC”) would renew or provide a new operating license for nuclear generators.[3] As a result, all nuclear utilities in the United States have signed the standard contract. In return, the United States promised to begin taking possession of nuclear waste no later than January 31, 1998.

Despite this 1998 deadline, the Secretary of Energy, the President, and Congress did not approve Yucca Mountain as the nation’s permanent nuclear waste repository until 2002.[4]  In 2008, DOE submitted its license application (“LA”) and NRC began its review under § 114(d) of the NWPA. After taking office, however, President Obama’s Administration “determined that developing the Yucca Mountain repository [wa]s not a workable option and the Nation need[ed] a different solution for nuclear waste disposal.” By proposing to cut off all funding for Yucca Mountain in DOE’s 2011 budget and attempting to withdraw the LA from NRC with prejudice, the Obama Administration has stopped all licensing activities on Yucca Mountain.[5]

Because of the delays of multiple administrations, the United States has failed to collect any nuclear waste from nuclear utilities. In addition to forcing these utilities to hold their waste on-site, largely in the same pools that failed at Fukushima, by February 2010 nuclear utilities filed seventy-two lawsuits, seeking compensation for costs incurred as a result of the federal government’s inability to accept waste.[6] Twenty of these have been resolved at a total cost of $1.3 billion.[7] Further delays are likely to result in more lawsuits and more liability. In fact, DOE estimates the United States’ liability for failing to accept waste will rise to $11 billion dollars by 2020.[8] In comparison, the Environmental Protection Agency’s entire 2010 budget was the same amount.

Some would argue that $11 billion (or more) is a small price to pay for ensuring that the permanent nuclear waste repository will not harm the future health and safety of the public. However, the events at Fukushima demonstrate that the current storage system is not sufficient to protect the public. Moreover, computers modeling of thousands of situations shows that Yucca Mountain, for at least the next 10,000 years, will “perform[] brilliantly,” with the level of released radiation “below limits set for radiation exposure.” Quite simply, this aforementioned argument is a delay tactic that has cost, and will continue to cost, the United States billions of dollars.

At a time when most Americans are tightening their belts and want the federal government to do the same, continuing with the unsafe status quo by delaying a project that is projected to be safe for the next 10,000 years (longer than all of human history) will cost the United States billions of dollars. Delaying a permanent repository is neither fiscally nor socially responsible. The United States should continue moving forward on Yucca Mountain, including further assessments of the risks involved, in order to protect the public health and to save the government billions of dollars.

-Nathaniel C. Giddings, Senior Production Editor*


* Nathaniel C. Giddings was the Senior Production Editor of Volume 2 of the Journal of Energy and Environmental Law. This is an opinion piece, and the views expressed herein are the author’s alone. Although nuclear energy will likely be part of America’s energy future, whether it should be is beyond the scope of this piece; this article simply proposes a solution to the current nuclear waste problem in the United States.

[1] A Gallup poll taken shortly before Fukushima found that 64% of Americans worry about federal spending and the budget deficit “a great deal;” this was more than the availability and affordability of energy (46%) and quality of the environment (34%).

[2] P.L. 97-425. Although DOE initially identified five potential repository sites, Congress selected Yucca Mountain, Nevada as the only site DOE could consider for a permanent repository in 1987. 42 U.S.C. § 10172.

[3] Id. at § 302(b)(1)(A); 10 C.F.R. part 961 (Standard Contract).

[4] S.J. Res 34 (2002); H.J. Res 87 (2002).

[5] Even though the Atomic Safety Licensing Board denied DOE’s motion on June 29, 2010, the NRC overturned the ASLB on October 4, 2010 when it sent a memorandum to its staff, directing them to “continue their activities on Yucca Mountain LA in accordance with the Commission’s decision on the FY 2011 budget.” Because the NRC’s proposed 2011 budget only included funding for “orderly closure of technical review” and no money for licensing activities, all licensing activities on DOE’s Yucca Mountain application have stopped.

[6] More lawsuits have been filed since then.

[7] The Court of Federal Claims estimates that the unresolved lawsuits by nuclear utilities for breach of the standard contract by the United States could “involve tens of billions of dollars.”

[8] The United States’ liability under the standard contract is in addition to the $14 billion that it has already paid to study and develop Yucca Mountain.

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