Archive for the ‘Waste Storage’ Category

By Edward Davis and David C. Blee

The United States Nuclear Regulatory Commission’s (NRC) August 7, 2012 order to defer any final agency action approving the issuance of new reactor licenses or to grant new license renewals for existing operating reactors — in response to a Federal Appeals Court remand of the agency’s existing waste confidence rule — does not represent the draconian “Full-Stop” that the some of the industry’s opponents claim. 

Under the order, the agency will continue with its technical and licensing reviews while holding any final decisions in abeyance until the NRC has developed and completed its work responsive to the Court’s remand.  Accordingly, the Order could impact very few, if any, near-term combined license (COL) applications.  Moreover, under the NRC’s rules for license renewals, no operating plant would be directly affected where a timely renewal license application has already been submitted to NRC. Current spent fuel storage is certainly safe and not in question.  

Notwithstanding, there have been only rare occasions where similar orders have been issued by the NRC. Among them was the Calvert Cliffs Federal Appeals Court Decision in 1971 to require compliance with the newly enacted National Environmental Policy Act (NEPA) and the preparation of environmental impact statements to accompany new reactor licensing and following the Three Mile Accident (TMI).

Moreover, any failure to resolve the waste confidence issue in a timely manner has the potential to delay new-term COLs, cloud license renewals and chill investor confidence in U.S. nuclear energy at a pivotal time. 

As such, the NRC’s Order and the Court’s remand are matters to be taken seriously.  At the same time, they offer a window of opportunity to chart a path-forward to resolve the back-end of the fuel cycle dilemma, which has plagued U.S. nuclear energy since its infancy.  The Reid-Jaczko four-year walk-in-the-wilderness prescription of just-leave-the waste-where-it-is was myopic at best.  Given the stakes involved, a head-in-the-sand approach in light of this new challenge would be equal folly.

For over four decades, the industry has operated under a series of interlocking court and regulatory decisions that have benefited and fostered the continued use and development of nuclear energy in the U.S. Starting in the early 1970s, a number a significant legal actions were taken to force the NRC to make a determination when licensing new plants that the spent fuel and nuclear waste could be disposed of safely and permanently.  In a 1979 Court of Appeals decision, known as Minnesota vs. NRC, it was found that the NRC was not required to find that such disposal capacity actually existed at the time of licensing of a new plant, only that a finding was necessary that NRC had “confidence”  that a permanent repository would eventually be available when needed.

The Court in the Minnesota decision referenced the NRC's 1977 order denying a National Resources Defense Council (NRDC) petition for a "confidence" rulemaking:

"It is neither necessary nor reasonable for the Commission to insist on proof that a means of permanent waste disposal is on hand at the time reactor operation begins, so long as the Commission can be reasonably confident that permanent disposal (as distinguished from continued storage under surveillance) (emphasis added) can be accomplished safely when it is likely to become necessary. Reasonable progress towards the development of permanent disposal facilities is presently being accomplished. Under these circumstances a halt in licensing of nuclear power plants is not required to protect public health and safety."

However, the Minnesota Court case did give rise to what has been enshrined as the Waste Confidence Rule, which the NRC updates from time to time.  The significance of this generic rule is that interveners cannot raise any questions in individual licensing proceedings as to whether the nuclear plant with its accumulation of spent fuel might one day become a de facto repository after its license expired because the Federal Government failed to successfully develop a repository. 

In addition, by virtue of another generic rule, the so-called Uranium Fuel Cycle Rule and its related Table S-3, one that was challenged all the way to the Supreme Court, opponents cannot question the environmental releases assumed from a repository in individual plant environmental impact statements because NRC has assumed a “zero release” assumption as part of these assessments.

Despite these regulatory protections, the NRC under pressure did concede, as it does today, that the NRC will not continue to license reactors if it does not have reasonable confidence that spent fuel and nuclear waste can and will in due course be disposed of safely. And, specifically, this codified policy commitment relates to permanent disposal and not temporary surface storage. 

The linkage between progress towards permanent disposal and continued reactor licensing is at the heart of today’s nuclear waste confidence impasse — one that cannot be resolved through efforts to site temporary storage facilities, notwithstanding how desirable those efforts may be in terms of moving spent fuel from nuclear power plant sites.

When the Obama Administration disbanded and defunded the DOE’s nuclear repository program while seeking to terminate the Yucca Mountain project,  former NRC Chairman Gregory Jazcko pushed through an update of the Waste Confidence Rule based on the flawed premise that despite the Administration's efforts to terminate the only repository program that the nation has had over the past 30 years, the NRC still had "confidence” that somehow, some way a repository would materialize precisely  when needed.  In the meantime, the NRC found that spent fuel  could be stored onsite safely for a total of 120 years — 60 years during operations followed by an additional 60 years after license expiration for the repository to become available.

Two states seeking to block license renewals and anti-nuclear groups who have had a long running feud with NRC over this issue saw an opportunity and pounced on this update and its “predicative” finding of confidence as a bridge too far and sued the NRC over the revised rule. 

As a result of the Federal Appeals Court’s June 8th remand, the NRC must now go back and develop an environmental assessment of the implications of not having a repository.  Based on oral arguments, Petitioners are seeking an expansive, multi-century analysis of the uncertainties, costs and effects of a repository and its potential failure and related consequences as well as the onsite effects of indefinitely storing spent fuel at reactor sites across the country. Such an assessment is analogous to the Environmental Protection Agency’s one-million-year repository dose standard for Yucca Mountain that took nearly a decade to address. 

Ironically, the DOE in its 2002 Yucca Mountain EIS submitted to the NRC in connection with its license application did in fact make such an assessment of the potential environmental effects in its “No Action” Alternative and found that potential consequences of not having a repository could be quite significant.

This confluence is manifest destiny for the anti-nuclear community, which now believes it has finally opened up a Pandora’s Box that will force the NRC’s hand not to license new nuclear plants without a repository or even with just the reasonable prospect of one.

In writing the Court’s unanimous opinion in the Waste Confidence case, Chief Judge David B. Sentelle summed-up the paradox:

“The Commission apparently has no long-term plan other than hoping for a geologic repository. If the government continues to fail in its quest to establish one, then SNF will seemingly be stored on site at nuclear plants on a permanent basis. The Commission can and must assess the potential environmental effects of such failure.”

He also highlighted this dilemma during oral argument in responding to a suggestion by an NRC lawyer that the Blue Ribbon Commission (BRC) recommendations were a basis of renewed confidence that there would be a repository sometime in the not too distant future:

“You just related the history of the law, the Congressional resolutions had required the construction of the Yucca Mountain site, and then you tell me that we should reason from the fact that the President killed the Yucca Mountain site and put in some other Commission that therefore there’s going to be a solution. If anything it sounds like this is one more time that the frustration of the Petitioners reflected reality. “

In short, without a repository, there can be no nuclear energy resurgence. What is required now is a concerted action not only by the NRC but also the Administration and the Congress to address the root cause of the waste confidence impasse and put the U.S. nuclear waste program back on track.  

A good start would be for the NRC to restart the Yucca licensing process and not wait for a Court mandamus order to do so. Such action is supported by the recent vote 326 members of the House of Representatives to provide additional funding for the Yucca licensing process. In addition, the DOE should re-standup the Office of Civilian Radioactive Waste Management in order to refocus efforts and develop a repository restart plan. Congress should appropriate the necessary funding to put the program back on track.

Progress on these fronts and on Yucca Mountain provides confidence that a repository can and will be available.  It also provides a demonstration that there is a political will to resolve the siting issues and to carry out the law that Congress established

Mr. Davis is President of the Pegasus Group and a former President of the American Nuclear Energy Council. Mr. Blee is a former U.S. Deputy Assistant Secretary of Energy and Executive Director of the U.S. Nuclear Infrastructure Council. 

February 23, 2011
Nuclear Townhall

 
 
One of the most persistent myths about nuclear power is that there is no residual value to spent fuel and that the costs of dealing with this supposedly intractable problem are foisted on the public’s coffers.
 
Disproving the latter thesis once again, the Wisconsin Electric Power Company settled this week for $45.5 million for its share of the government’s partial breach of contract for failing to acceptance commercial spent nuclear fuel beginning in 1998.  The utility won a lawsuit for $51 million in 2009 but the government had appealed.  Some industry estimates put the government’s overall liability at in excess of $50 billion ultimately.
 
“Now, WE Energies has revealed that the government initiated discussions with the utility in the second half of 2010 and offered to settle the lawsuit,” says this report on World Nuclear News. “Accordingly, on 8 February the parties signed an agreement in which the US has agreed to pay Wisconsin Electric $45.5 million in full and final settlement of the suit. Wisconsin Electric intends return the $31 million net proceeds after litigation costs to its customers, and has written to the Wisconsin Public Service Commission to enable it to set up the necessary mechanisms.”
 
Other states and utilities have indicated they will be asking for money back as well. In December, South Carolina Governor-elect told President Obama in a private meeting that “the federal government has reneged on its promise, and South Carolina wants a refund.”  Both South Carolina and Washington State have sued to block the NRC closedown of the Yucca project. Exelon collected the first $300 million refund in 2008 and other utilities are now following in its path. The payments do not come out of the Nuclear Waste Fund but out of general revenues.
 
Still, the unraveling of the federal effort casts a shadow over any attempt to build a permanent repository – or better yet initiate a reprocessing strategy. The situation may become clearer or cloudier when the Blue Ribbon Commission on America’s Nuclear Future makes its report sometime in the next several months.

Read more about it at Nuclear World News

Nuclear Townhall
January 5, 2011
From the Editors
 
 

Win some, lose some. Newsweek’s website features a run-of-the-mill horror story about how highly trained teams of commandos could break through the security system at a nuclear reactor, and do something-or-other that would set off the inevitable “nuclear holocaust.”  The feature mixes in apples and oranges adding the safety of spent nuclear fuel to the security smorgasbord 
 
Specially trained commando teams made up of military veterans actually mount such attacks periodically to test security systems. The news is that in 100 such attempts over the past five years, the commandos have succeeded in getting inside the perimeter eight times. Wonder how many times they could get into the White House?  David Lochbaum of the Union of Concerned Lawyers – no, sorry, Scientists – is on hand to announce the whole thing is really a cover-up:  “The industry is hiding behind the 9/11 tragedy to withhold information like which plants have failed tests and repairs that have been made.”
 
Remember, all this is to protect against a hostile civilization on the other side of the globe whose main accomplishments since 2001 have been to send one terrorist with a bomb in his shoe and another with a bomb in his underpants.
 
But no matter. “The improvement that many scientists favor,” Newsweek reports, “is one that has been made elsewhere ­including in China, France, Japan, Belgium, and the U.K. All have eliminated the need to store portions of used fuel. Instead, they reprocess the waste, a complex process that removes the remaining uranium from almost pure plutonium and other byproducts, and puts it back in the reactor to produce more power. `You’re actually destroying some waste by recycling it,’ says Denis Beller, a nuclear engineer at the University of Nevada, Las Vegas.”
 
Recycling spent fuel – what a great idea!  Wasn’t there something in the paper the other day about China developing a new recycling technology?  Maybe we should give them a call. We once had a reprocessing effort going in this country, didn’t we?  Then along came Jimmy Carter.

Read more at Newsweek

Nuclear Townhall
January 5, 2011

In a feature story right from the anti-nuclear playbook (“Flirting with Disaster…Every few years the defenses of the nation’s nuclear plants are tested. What’s scary is how often they fail”), Newsweek magazine reports that “eight times out of roughly 100 attempts over the past five years, … mock terror teams have successfully broken through … defenses” of U.S. nuclear plants.

Right on script, the article quotes a Union of Concerned Scientist spokesman accusing the industry of “hiding behind the 9/11 tragedy to withhold information—like which plants have failed tests and repairs that have been made—that should be available.”

Newsweek surmises that “worries are particularly acute because the nuclear-energy industry is experiencing a new era of growth” – citing positive support from President Obama for loan guarantees and Energy Secretary Chu’s recent public statement that nuclear energy was “clean energy.”
On a positive note, the feature concludes that “advanced technology has virtually eliminated the risk of accidental meltdowns, like the one at Chernobyl in 1986, adding repetitive safeguards that allow the plant to shut itself down if operators can’t.”

But Newsweek warns:  “The bigger problem is the highly radioactive waste that is left over once most of the energy-producing juice has been sucked out of it” – stuff that “will remain dangerously radioactive for about 10 millennia, until the year 12011.”

The features rebuts a pithy quote from American Nuclear Society President Andy Kadak that modern nuclear plants are like prisons opining that “prison breaks still happen from time to time”  and the “security measures that are in place result in very little transparency.”  Nuclear Regulatory Commission Chairman Gregory Jaczko offers Newsweek a bureaucratic defense saying “we think in the end overall security is best achieved by keeping most of [our security information] protected.”  This prompts another rebuff from Newsweek, which observes that “yet as the Gulf Coast oil spill showed, an industry out of public view can get sloppy.”

Newsweek offers a new rationale not yet floated by the Obama Administration for the termination of the Yucca Mountain project, which it describes positively as “dry, desolate, not prone to natural disasters – the perfect location for a repository” saying the project was canceled “in pursuit of something less risky than concentrating millions of pounds of waste in one place.”

Not to worry, we’re told the Energy Department has a Blue Ribbon Commission “researching other ideas, such as burying it in the oceans, shooting it into space, or finding a new repository somewhere else in the world.” The Newsweek feature concludes with this oddity:  “That site’s defenses, however, would need to be foolproof,” an observation presumably not applicable to an outer-space-based repository.

Read more at Newsweek

Closing the nuclear fuel cycle has always made ultimate sense. When Lewis Strauss made his fateful remarks about “electricity too cheap to meter,” he was speaking with recycling in mind.
 
The promise turned out to be premature – and nuclear opponents have never let us forget it. But the possibility of extracting more than the 5 percent of the energy potential now consumed in commercial reactors still looms – not to mention clearing up the false problem of “nuclear waste.”
 
MOX fuel has always been an obvious starting point. France does it and now Japan and the United States are moving in that direction as well. MOX simply takes the plutonium and depleted uranium from a spent fuel rod and mixes them together to make a sustainable fuel mix. (It’s the presence of other isotopes that interfere with neutron capture that make a spent fuel rod useless.)
 
Plutonium, of course, is the bad actor of the bunch, relatively easy to convert to bomb material (although not that easy because it is contaminated with non-fissionable and too-fissionable plutonium isotopes). Recycle that plutonium as fuel and the whole problem is solved. We were on the right track back in the 1970s before nuclear opponents scared Jimmy Carter into giving up the whole process for fear that somebody might steal the plutonium and run off and make a bomb.
 
France has a MOX fabrication facility at Avignon and produces one-third of its fuel from recycling. “Our spent fuel rods are the new uranium mines,” says Jacques Besnainous, president of AREVA’s American operations. Over the last year, the French have also started recycling Japan’s spent fuel, which is sent back to burn in one of Japan’s four MOX-enabled reactors.
 
Now, as often happens, the Japanese are going to do the reprocessing for themselves. With an opening prayer ceremony, ground was broken for the new J-MOX facility in the Aomori Prefecture last week.
 
And things are happening in the United States as well. AREVA has contracted to build a MOX facility at Savanna River to reprocess plutonium left over from the weapons program. According to this report in World Nuclear News, AREVA will soon be sending 93 trainees to France to learn the technology.
 
Who knows?  After seeing all that weapons plutonium disappear transformed into useful energy, Americans may be persuaded that reprocessing commercial fuel might not be such a bad idea after all.

Read more at World Nuclear News

On the eve of a Congressional salvo against embattled U.S. Nuclear Regulatory Commission Chairman Gregory Jaczko — and amid an unusual call for an investigation of Jaczko by former NRC Commissioner Kenneth C. Rogers — the agency has released documents showing a growing political division within Commission over the appropriateness of Chairman Jaczko’s direction to staff to terminate the technical review of the Yucca Mountain application.

In a rare glimpse into the inner workings of the NRC Commission, the NRC released "vote sheets" on an "action memorandum" issued by Commissioner William Ostendorff to his fellow commissioners recommending in essence that they reconsider the directions given by the chairman to the NRC staff to stop work on the Yucca Mountain license application technical review.

As reported by the Commission Secretary, "A majority of the Commission declined to participate on this matter. In the absence of quorum, your proposal is not approved."Commissioner Kristine Svinicki apparently agreed with Commissioner Ostendorff, but the Republican-appointed Commissioners failed to attract  support from any of the Democratically-appointed commissioners.

The party-line split is extraordinary within a Commission that in the past has prided itself for a collegial, bipartisan approach to most regulatory issues.  This political divide is sure to have repercussions in the next Congress as House Republicans have already signaled their unhappiness  with Chairman Jaczko.  In a letter delivered this week, they strongly questioned the rationale and legal authority used by the Chairman in issuing the directive to the NRC staff to stop work on the Yucca review.

The lack of legal authority and consistency was in essence the over-arching theme of Ostendorff’s follow-up memorandum issued October 8 to his fellow commissioners, in which he laid out the lack of consistency and justification in the Chairman’s direction.

In a just released October 8 letter to NRC Inspector General Hubert Bell, former two-term (1987-97) NRC Commissioner Rogers  requested a review of Chairman Jaczko’s "recent unilateral actions to terminate the NRC Staff’s review of the DOE Yucca Mountain application in order to determine whether any legal or other improprieties have been committed."

"What we have is a Civil War among the Commissioners," said one long-time NRC observer.  "I think the NRC’s position as an independent regulatory agency has been greatly damaged by the Chairman’s escapade."

The Nuclear Regulatory Commission was within a month of releasing its long-awaited Volume 3 report on the million-year implications of storing spent fuel rods at Yucca Mountain. The long-term aspects formed one of the biggest roadblocks to opening the nation’s nuclear spent fuel and high-level waste repository.

The original environmental impact statement projected out 10,000 years but when a report from the 2005 National Academy of Sciences mentioned that some isotopes would not disintegrate for a million years, environmental groups succeeded in getting the District of Columbia District Court to raise the bar.

Platts was reporting on the story broken this week on Nuclear Townhall that NRC Chairman Gregory Jaczko has unilaterally ordered the agency staff to close out the ten-year effort to review the Department of Energy’s application, based on a paragraph in the 2011 budget, which has not yet been adopted by Congress.

South Carolina, Washington State, Aiken County (SC) and several former DOE and NRC employees have objected to the chairman’s actions.

Read more about it at Platt’s

Responding to the story broken last Tuesday on Nuclear Townhall, Aiken County and other Yucca Mountain plaintiffs filed a formal motion yesterday alleging that Chairman Gregory Jaczko acted improperly in directing the staff to "begin an orderly closure of high level waste activities."

The motion called the chairman’s action an “end run” around the four other commissioners and charged, “The chairman’s unilateral decision to halt review of the license application violates NRC regulations." A Las Vegas Review-Journal report on the filing gives extensive detail on the amount of weapons-related waste that has piled up in Washington and South Carolina, the two states that are suing to block the Department of Energy’s decision to withdraw the Yucca application.

The Las Vegas newspaper also notes the “unconfirmed rumors . . . of palace intrigue [swirling] at the top levels of the agency” about the content of Volume 3 of the NRC’s application review and the possibility that the full commission may vote soon on the ALSB review. It also reports that Nevada politicians are praising Jaczko’s actions.

Read more at the Las Vegas Review Journal

This week, as reported first in Nuclear Townhall, U.S. Nuclear Regulatory Commission Chairman Gregory Jaczko instructed the agency’s staff to begin closing down the U.S. Department of Energy’s Yucca Mountain application, based on a subjective interpretation of a single paragraph in the agency’s proposed 2011 budget, which has not yet been enacted by Congress.

Closing down the application means that a purportedly near-complete Volume 3 of the NRC response may never see the light of day. Volume 3 deals with “post-closure safety” over the one-million-year time frame requirement. Word from NRC sources says that the report is favorable toward this critical facet of the Yucca Mountain project, but that may never be fully known.

Closing down the application in this fashion means the chairman is acting alone rather than with the consent of the other commissioners. The full commission (one of the five commissioners has recused himself) is supposed to be voting on whether to accept or reject the recommendation of the Atomic Safety Licensing Board (ASLB), which voted unanimously in June to reject DOE’s license application withdrawal request, saying it was not justified under the Nuclear Waste Policy Act.

Closing down the application by fiat is an end run around the ASLB. It also means the NRC will be pulling the rug from under the lawsuits filed in opposition to termination of the Yucca project by Aiken County, S.C., the State of South Carolina and the State of Washington, where testimony has been temporarily suspended awaiting the Commission’s vote on the ASLB. In a filing with the NRC late yesterday, the parties asked the Commission to reverse the Jaczko action.

In brief, the chairman, acting alone, is short-circuiting the regulatory and legal process. It’s no secret that Jaczko owes his appointment to Senate Majority Leader Harry Reid, who has devoted much of his Senate career to keeping the nation’s nuclear waste repository out of Nevada. Is Jaczko simply facilitating the mission of his longtime benefactor? Or, as other Yucca Mountain detractors say, “What’s the difference?  Yucca Mountain is dead anyway. These are all legal niceties.”

Yet there’s far more at stake. The Nuclear Regulatory Commission has built a reputation for fairness and transparency — an attribute that is critical to the future of the U.S. Nuclear Renaissance. Some of the loudest protests are coming from former employees and officials who say the NRC’s integrity is being compromised. So what’s the verdict?  Is Chairman Jaczko politicizing the NRC?  What are the implications?  Or is it naïve to expect that any federal agency won’t eventually be politicized?

The South Carolina Attorney General’s office has written the U.S. Department of Justice and the Nuclear Regulatory Commission querying the NRC’s recent moves to close out the Department of Energy’s license application for the Yucca Mountain Nuclear Waste Repository.

"In responding, we request that you honor the spirit of our question, rather than splitting any technical hairs in how our question is framed," said the letter, signed by Andrew A. Fitz, senior counsel for the attorney general’s office. "In our opinion, this information is relevant to our mutual obligation to continue to inform the D.C. Circuit Court of Appeals of the status of the administrative matter before the NRC."

South Carolina is a principal plaintiff in the lawsuit challenging the Department of Energy’s decision to withdraw its application for Yucca. Originally filed by Aiken Country, S.C., home of the Savannah River site, the suit has since been joined by the State of South Carolina and Washington State, home of the Hanford Reservation. Both Savannah River and Hanford house spent fuel and other nuclear by-products that would eventually be stored at Yucca Mountain. The suit alleges that DOE’s decision reneges on the federal government’s obligation to provide a
permanent repository under the Nuclear Waste Policy Act of 1982.

Fitz asked either the DOJ or the NRC to either confirm of deny reports that NRC Chairman Gregory Jaczko has instructed the agency staff to start closing out the DOE application, as reported yesterday by Nuclear Townhall. Jaczko has initiated the action even though the full commission has not yet voted on the Atomic Safety Licensing Board’s decision rejecting the shutting down of Yucca, which was issued on June 29.

The letter is addressed to both Ellen J. Durkee, of the Environmental and Natural Resources Division of the Justice Department, and John F. Cordes, Solicitor for the Nuclear Regulatory Commission. "We are directing our inquiry to you, rather than the NRC directly, based in the fact that our question relates to a matter in litigation in which you represent the NRC, among other respondents," wrote Fitz.

Testimony in the D.C. lawsuit has been suspended pending a vote by the Commission on whether to accept or reject the ASLB’s finding.

Rumors are that Chairman Jaczko has been unable to assemble the votes for needed for a rebuttal. Jaczko has directed much of his attention toward closing down Yucca since being appointed chairman in 2009 under the championship of Senate Majority Leader Harry Reid, of Nevada, where the repository is located. Senator Reid is currently locked in a tight race for re-election against Republican challenger Sharon Angle, who holds a 4-point lead according to the latest poll.