Nuclear New Build in the US
14 June 2010
Nuclear new build is considered by many to be the only technology that is capable of achieving the base load capacity growth required to meet these demands. Yet achieving the stated goals of growth through nuclear new build may well be predicated on a viable nuclear fuel waste disposal alternative. This has been thrown into question through recent Obama Administration actions, which have, in turn, given rise to litigation. Set out in this brief note is a summary of Yucca Mountain as the original intended solution for nuclear waste management in the US, and an analysis of recent events surrounding its fate.
Background - Yucca Mountain as Repository
In February 2002, the Secretary of Energy and then President Bush recommended Yucca Mountain, Nevada as an appropriate repository for high-level nuclear waste. This recommendation came after 20 years of research by the Department of Energy (DOE) into possible repository sites in the US. Five months later, Congress approved the development of the repository at Yucca Mountain.
Yucca Mountain was selected, among other reasons, because it is uninhabited, isolated and located in a desert climate. Additionally, the Yucca Mountain site neighbors the Nevada Test Site which, during the second half of the 20th century, was home to over 900 nuclear tests. The initial plans for the repository called for the high-level nuclear waste to travel to Yucca Mountain by truck or rail and then to be placed in corrosion-resistant packages before being buried underground. In June 2008, the DOE submitted an application to the Nuclear Regulatory Commission (NRC) for authorization to proceed with the Yucca Mountain repository. This matter was promptly assigned to an Atomic Safety and Licensing Board (an ASLB) for hearing.
Fulfilling its campaign promises, and supporting the historical efforts of Senate Majority Leader Harry Reid of Nevada, the Obama Administration proposed to eliminate the Yucca Mountain repository program in its 2010 budget proposal. The budget proposal eliminated "[a]ll funding for development of the facility . . . such as further land acquisition, transportation access, and additional engineering."
Following the Obama Administration's plan to shut down the repository, on March 3, 2010, the DOE filed a motion with the ASLB of the NRC seeking to withdraw its request for authorization to build the repository. At that point, it seemed as though Yucca Mountain would no longer be the designated site for nuclear waste disposal in the US, throwing into question the ultimate disposition of nuclear waste currently being stored onsite at many nuclear generating facilities, along with high level waste from US weapons programs. Moreover, it potentially threw into question the plans for development of certain new nuclear generating facilities in the US who face local issues regarding long-term disposal of nuclear waste.
Administrative Law Actions
Five separate petitioners, however, came forward to challenge, before both the ASLB and the US Court of Appeals for the District of Columbia (the D.C. Circuit), the DOE's authority under the Nuclear Waste Policy Act to withdraw the Yucca Mountain application, and sought to intervene in the action. On April 6, 2010, the ASLB issued an order suspending consideration of the withdrawal motion pending a decision from the D.C. Circuit which is considering parallel challenges. The DOE subsequently filed a motion for interlocutory review with the NRC.
On Friday, April 23, 2010, the NRC issued an order vacating the ASLB's suspension order. The NRC, noting that its procedures did not permit review of the interlocutory motion, elected, due to the "unique circumstances" surrounding the Yucca Mountain application, to exercise its "sua sponte review authority." The NRC vacated the ASLB's suspension order and remanded the issue to the ASLB for "prompt resolution of the DOE's motion to withdraw" requiring that the NSLB "issue a decision . . . no later than June 1, 2010." In particular, the NRC noted that "[f]undamental questions have been raised . . . regarding the terms of DOE's requested withdrawal, as well as DOE's authority to withdraw the application in the first instance" which "fall within [the] province" of the NRC. The NRC concluded its order by recognizing that it was "the prudent course of action . . . to resolve the matters pending before [the] agency as expeditiously and responsibly as possible."
The following Tuesday, April 27, 2010, the ASLB issued a briefing schedule for the DOE's motion to withdraw. However, in contradiction to the NRC's order, the ASLB stated that providing a decision on June 1, 2010 was "infeasible," and stated that it would issue a decision no later than June 30, 2010. The ASLB permitted the five intervening petitioners to also participate in the briefing and argument as if they were admitted parties. In the briefing schedule, the ASLB counseled the parties that they "may wish to give particular attention to the statutory scheme, history, and legislative intent of the Nuclear Waste Policy Act" when presenting their arguments.
Oral argument took place before the ASLB on June 3, 2010. Each side had been granted two and one half hours to argue its case. The only issue permitted to be argued at the ASLB hearing was to be the DOE's motion to withdraw the Yucca Mountain licensing application. While the five interveners were allowed to take part in oral argument, they were not allowed to argue the merits of their petitions to intervene.
After the ASLB reaches its decision, which is scheduled to occur later this month, the parties will have the opportunity to appeal to the Commissioners of the NRC. Sitting on the five member panel of NRC commissioners are three individuals that were confirmed by the Senate in March 2010. Prior to their confirmation, all three individuals testified before a Senate committee that they would not, if the decision was confirmed by the ASLB, "second guess" the DOE's decision to withdraw the Yucca Mountain license application. Depending on the decision of the ASLB, these seemingly blanket statements by the new NRC commissioners may be put to the test in the near future.
Federal Court Action
On May 3, 2010, the D.C. Circuit took action on the case dismissing a request for an injunction that would have halted the DOE's dismantling of the Yucca Mountain repository while litigation is pending. The Court ruled that the petitioners, the State of Washington and Aiken County, South Carolina (both locations currently hold nuclear waste that was to be disposed of at Yucca Mountain) had not demonstrated that they would suffer irreparable harm if the DOE progressed towards closing down the Yucca Mountain repository. With this initial court challenge resolved in its favor, the DOE continues to move towards fulfilling the Obama Administration's goal of shutting down the repository. Effective May 24, 2010, the only tasks that will be performed at Yucca Mountain are those necessary for shutdown of the facility.
The parties to the D.C. Circuit action submitted a joint proposal for briefing to the court on May 7th. While final briefs on the matter are proposed to be submitted on August 20, 2010, the parties, noting that there were scheduling conflicts for counsel, requested that oral argument on the case not be calendered before September 20, 2010. So while there will be some resolution from the ASLB by the end of June, it will be much longer before any decision is reached by the Federal courts.
Impact of Yucca Mountain's Unsettled Status
With Yucca Mountain in the process of being dismantled, the uncertainty builds as to what will happen with the nation's nuclear waste. At the direction of President Obama, the DOE established the Blue Ribbon Commission on America's Nuclear Future. The Commission is charged with "[f]inding an acceptable long-term solution to . . . used nuclear fuel and waste storage needs." The Commission is scheduled to produce a preliminary report by July 2011 and a final report by January 2012. If the Commission is able to meet this herculean task and reaches a consensus on the best approach to move forward, it could be decades before the plan is implemented.
Notwithstanding pronouncements by NRC Chairman Gregory B. Jaczko to the effect that he still has confidence that there will be a high level waste repository by the time it is needed (which is cast into the NRC's rules in the form of the "Waste Confidence Decision"), the uncertainty around the disposal of nuclear waste could call into question the future and expansion of the nuclear power industry in the United States. As Senator John McCain of Arizona summarized the issue in 2009: "[N]ow we are going to have spent nuclear fuel in pools all over America, and we are telling the nuclear power industry we have no way of either reprocessing or storing spent nuclear fuel, and [yet] we expect nuclear power to be an integral part of this nation's energy future." The issues are evident and so is the fact that the judicial proceedings and the larger question of how to deal with the nation's spent nuclear fuel will not be resolved quickly.
While we await the decisions of the ASLB and the D.C. Circuit, we consider what the possible ramifications might be if the ASLB or the D.C. Circuit finds, as we believe not impossible, that the DOE has no authority to withdraw the application. Will the Obama Administration and Senator Reid try to change the Nuclear Waste Policy Act to allow for the withdrawal? Will there be substantial future litigation efforts to force the DOE to continue to prosecute its application? What future actions will be taken with respect to the Yucca Mountain repository while the application remains as unsettled as the future of nuclear waste in the US? These developments have not had a positive impact on attempts to address the severe shortage of installed capacity in the US. At best, this litigation will amount to a monumental delay in achieving the fullest potential of nuclear new build in addressing the domestic power supply gap.
Find out more about Allen & Overy's projects practice in the US.