Will Washington Finally Resolve the Nuclear Waste Dilemma?

After 30-plus years of false starts, delays, and political interference, the U.S. finally has an opportunity to make good on its obligations to store the spent fuel from our nation’s nuclear reactors. A recent federal court decision and good-faith legislation from a bipartisan group of senators have put this issue on the front burner for the first time in a decade. For the ratepayers of our nation’s nuclear-powered utilities who have contributed billions to this program, this is good news. Whether the federal government can make real progress and finally uphold its responsibilities remains uncertain.

Law, Legislation, and Litigation

We appreciate the Senate’s efforts to revitalize our nation’s spent nuclear fuel (SNF) policies. Senators Ron Wyden, Lisa Murkowski, Dianne Feinstein, and Lamar Alexander should be commended for their hard work on this topic. In a hearing in July on their bill, the National Association of Regulatory Utility Commissioners (NARUC) praised these senators for their dedication. But it is disheartening that we have reached this point particularly when the Nuclear Waste Policy Act of 1982 (NWPA) remains the law and nuclear power consumers are still paying for a program the government says is no longer “workable.” Incredulously, as the court confirmed, the government has not explained any scientific or technical reasons for drawing such a conclusion.

The early August decision by the U.S. Court of Appeals for the D.C. Circuit was profound for many reasons, most importantly its determination that the federal government cannot pick which laws it wants to follow. The court confirmed the Executive Branch must comply with the NWPA. The 1982 law set in motion a series of steps that resulted in Yucca Mountain being designated as the nation’s first repository of SNF and government-owned radioactive waste. The Department of Energy (DOE) in 2008 filed a construction license application with the NRC to build a repository in Yucca Mountain. From there, Congress provided three years for the NRC to act.

The law requires nuclear utilities, through a fee assessed by the DOE, to pay for the program. State commissions pass these costs on to consumers of nuclear power because we have determined the public will benefit from a nuclear-waste repository. These fees collected into the Nuclear Waste Fund now total approximately $27 billion.

Unfortunately, while our consumers have done their part, the federal government has not done its. The program ground to a halt in early 2010, when the DOE asked to withdraw its license application—still before the NRC—with no explanation other than that Yucca Mountain is no longer practical. The NRC, even after its own staff recommended against the DOE request, waited more than a year before hastily ordering its agency’s technical review board in September 2011 to conclude its consideration of the license application. The review has since been suspended.

The NRC’s inaction forced NARUC, South Carolina, Washington State, and Nye County, Nev., into action. We asked the U.S. Court of Appeals to direct the agency to do its job and decide whether Yucca Mountain is a suitable site. It was unfortunate that we had to waste more taxpayer dollars by asking an agency to comply with the law, but the court directed the NRC to resume its review. This is a positive development, as the delay has cost not only time but money: American consumers are still paying for Yucca Mountain.

Fee for (No) Service

After determining—unlawfully, as we know now—that the program was “unworkable,” the DOE nonetheless continued charging nuclear utilities and their consumers fees associated with the program. Current law requires the DOE to report annually on whether the fees charged are “adequate” to support the program. Historically, these reports contain detailed spreadsheets and necessary calculations. Its most recent assessments, however, have fallen far short of this precedent.

Yet this did not prevent the DOE from asserting that all funds being charged remain necessary. It did so in an early 2013 filing detailing its new plan for storing SNF. Although this new proposal contains a number of good ideas, it remains a proposal. As the courts made clear, only Congress can change the law; consumers should not be paying for a program now that might become law in the future.

Despite our ongoing legal proceedings, we are cautiously optimistic Congress will heed the lessons from the Yucca Mountain experience. Although the NWPA charted a clear path forward, the political realities ensured the law was not followed. The legislation offered by Sens. Wyden, Murkowski, Feinstein, and Alexander provides a strong starting point for this debate. NARUC has offered a few suggestions where the proposed legislation could be made even stronger.

Although there is bipartisan support in the Senate, members of the House have made clear that any solution to our SNF problems must include Yucca Mountain. Unless and until these disparate viewpoints can compromise, the NWPA will remain the law. And thanks to the recent court decision, the NRC must resume its review. For the nuclear utilities and their consumers who have spent more than $30 billion over the last 30 years on this program, this is good news. ■

David Boyd of Minnesota is NARUC Committee on Electricity chair, and Greg White of Michigan is Subcommittee on Nuclear Issues-Waste Disposal chair.