Civilian Nuclear Waste Disposal

Order Code IB92059

CRS Issue Brief for Congress

Received through the CRS Web

Civilian Nuclear Waste Disposal

Updated February 24, 2006

Mark Holt

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Introduction

Other Programs

Nuclear Utility Lawsuits

Nuclear Spent Fuel Legislation

Characteristics of Nuclear Waste

Spent Nuclear Fuel

Commercial Low-Level Waste

Current Policy and Regulation

Spent Nuclear Fuel

Current Program

Waste Facility Schedules

Private Interim Storage

Regulatory Requirements

Alternative Technologies

Funding

Low-Level Radioactive Waste

Current Policy

Regulatory Requirements

LEGISLATION

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

FOR ADDITIONAL READING

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Civilian Nuclear Waste Disposal

SUMMARY

Management of civilian radioactive

waste has posed difficult issues for Congress

since the beginning of the nuclear power

industry in the 1950s. Federal policy is based

on the premise that nuclear waste can be

disposed of safely, but new storage and disposal facilities have frequently been challenged on safety, health, and environmental

grounds. Although civilian radioactive waste

encompasses a wide range of materials, most

of the current debate focuses on highly radioactive spent fuel from nuclear power plants.

in FY2007, $50 million above the FY2006

level. The FY2006 appropriation sets aside

$50 million for DOE to develop a spent nuclear fuel recycling plan. No further funding

for spent fuel recycling is included in the

FY2007 waste program budget request.

However, a $250 million increase for recycling technology is included in the request for

DOE nuclear energy R&D as part of a new

Global Nuclear Energy Partnership (GNEP).

DOE announced on October 25, 2005,

that it would require most spent fuel to be

sealed in standardized canisters before shipment to Yucca Mountain, a change that would

largely eliminate the handling of individual

fuel assemblies at the site. DOE subsequently

informed NRC that making those changes in

the repository’s operational plans would

further delay submission of the Yucca Mountain license application, for which there is

currently no announced schedule.

The Nuclear Waste Policy Act of 1982

(NWPA) calls for disposal of spent nuclear

fuel in a deep geologic repository. NWPA

established an office in the Department of

Energy (DOE) to develop such a repository

and required the program’s civilian costs to be

covered by a fee on nuclear-generated electricity, paid into the Nuclear Waste Fund.

Amendments to NWPA in 1987 restricted

DOE’s repository site studies to Yucca Mountain in Nevada. DOE is studying numerous

scientific issues at Yucca Mountain in preparing a license application to the Nuclear Regulatory Commission (NRC) for the planned

repository. Questions about the site include

the likelihood of earthquakes, volcanoes,

water infiltration, and human intrusion.

Delays in the Yucca Mountain project

could be exacerbated by a July 2004 federal

circuit court decision that the Environmental

Protection Agency’s (EPA’s) 10,000-year

regulatory compliance period for the repository was too short. EPA proposed revised

standards on August 9, 2005.

NWPA’s goal for loading waste into the

repository was 1998, but DOE now does not

expect to open the facility until sometime after

2012. President Bush recommended the Yucca

Mountain site to Congress on February 15,

2002. A resolution to allow licensing of the

site to proceed, despite a “veto” by the Governor of Nevada, was signed by the President on

July 23, 2002 (P.L. 107-200).

Low-level waste disposal sites are a state

responsibility under the Low-Level Radioactive Waste Policy Act of 1980. Pursuant to

that act, 10 regional compacts for disposal of

low-level waste have been approved by Congress. Three commercial low-level waste sites

are currently operating in the states of South

Carolina, Utah, and Washington. The Washington facility accepts waste only from within

the Northwest and Rocky Mountain regional

compacts, and the Utah site accepts only the

least-concentrated waste class.

The Administration is requesting $544.5

million for the civilian nuclear waste program

Congressional Research Service

˜

The Library of Congress

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MOST RECENT DEVELOPMENTS

President Bush’s FY2007 budget request, submitted to Congress on February 6, would

provide $544.5 million for the Department of Energy (DOE) civilian nuclear waste program,

$50 million above the FY2006 level. The FY2006 appropriation sets aside $50 million for

the development of a spent nuclear fuel recycling plan, for which no funding is being sought

for FY2007. However, $250 million for nuclear fuel recycling research is included in the

request for DOE nuclear energy research and development (R&D) as part of a new Global

Nuclear Energy Partnership (GNEP). The Administration also said in the budget request that

it would submit legislation to Congress dealing with nuclear waste regulation and funding,

but provided no details.

DOE announced on October 25, 2005, that it would require most spent fuel to be sealed

in standardized canisters before shipment to a planned national nuclear waste repository at

Yucca Mountain, Nevada, a change that would largely eliminate the handling of individual

fuel assemblies at the site. DOE subsequently informed the Nuclear Regulatory Commission

(NRC) that making those changes to the repository’s operational plans would further delay

submission of a Yucca Mountain license application to NRC. DOE currently has no

announced schedule for the license application, which previously had been planned by 2005.

The Environmental Protection Agency (EPA) on August 9 proposed new standards for

the Yucca Mountain repository that would allow higher radiation exposure after 10,000 years

than during the first 10,000 years of repository operation. The previous EPA standards were

overturned July 9, 2004, by the U.S. Court of Appeals for the District of Columbia Circuit,

which ruled that the regulations’ 10,000-year compliance period was too short. The state of

Nevada has strongly objected to the EPA-proposed rule.

NRC on February 21 issued a license for a private interim waste storage facility in Utah

being developed by a nuclear utility consortium called Private Fuel Storage (PFS). However,

PFS still needs approval from the Bureau of Land Management to widen a highway or build

a railroad to the site. The above-ground PFS facility is intended to store up to 4,000 casks

of spent nuclear fuel awaiting planned eventual disposal at Yucca Mountain.

BACKGROUND AND ANALYSIS

Introduction

Nuclear waste has sometimes been called the Achilles’ heel of the nuclear power

industry; much of the controversy over nuclear power centers on the lack of a disposal

system for the highly radioactive spent fuel that must be regularly removed from operating

reactors.

Under the Nuclear Waste Policy Act of 1982 (NWPA) and 1987 amendments, the

Department of Energy (DOE) is focusing on Yucca Mountain, Nevada, to house a deep

underground repository for spent nuclear fuel and other highly radioactive waste. The state

of Nevada has strongly opposed DOE’s efforts on the grounds that the site is unsafe, pointing

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to potential volcanic activity, earthquakes, water infiltration, underground flooding, nuclear

chain reactions, and fossil fuel and mineral deposits that might encourage future human

intrusion.

Despite those concerns, DOE contends that the evidence so far indicates that Yucca

Mountain is likely to prove suitable and that licensing of the site by the Nuclear Regulatory

Commission (NRC) should proceed. A Draft Environmental Impact Statement (EIS)

completed by DOE in July 1999 and finalized in February 2002 recommended that the

project proceed as planned. However, DOE now does not expect the planned Yucca

Mountain repository to open until 2012 at the earliest, more than 14 years later than the 1998

goal specified by NWPA. DOE currently has no announced schedule for submitting an NRC

license application, which previously had been planned for 2005.

The safety of geologic disposal of high-level waste (HLW), as planned in the United

States, depends largely on the characteristics of the rock formations from which a repository

would be excavated. Because many geologic formations are believed to have remained

undisturbed for millions of years, it appeared technically feasible to isolate radioactive

materials from the environment until they decayed to safe levels. “There is strong worldwide

consensus that the best, safest long-term option for dealing with HLW is geologic isolation,”

according to the National Research Council.1

But, as the Yucca Mountain controversy indicates, scientific confidence about the

concept of deep geologic disposal has turned out to be difficult to apply to specific sites.

Every high-level waste site that has been proposed by DOE and its predecessor agencies has

faced allegations or discovery of unacceptable flaws, such as water intrusion or earthquake

vulnerability, that could release radioactivity into the environment. Much of the problem

results from the inherent uncertainty involved in predicting waste site performance for the

10,000 years or longer that nuclear waste is to be isolated. Opponents of geologic disposal

have urged greater emphasis on new or alternative technologies that might allow entirely

different approaches to high-level radioactive waste management.

Other Programs. Other types of civilian radioactive waste have also generated public

controversy, particularly low-level radioactive waste, which is produced by nuclear power

plants, medical institutions, industrial operations, and research activities. Civilian low-level

waste currently is disposed of in large trenches at sites in South Carolina and Washington

state; however, the Washington facility does not accept waste from outside its region. The

lowest-concentration class of low-level radioactive waste is also accepted by a Utah

commercial disposal facility, which is no longer seeking approval to receive all major classes

of low-level waste. Threats by states to close their disposal facilities led to congressional

authorization of regional compacts for low-level waste disposal in 1985, although no new

sites have been opened by any of the 10 approved disposal compacts. Pursuant to a 2003

Texas statute, an application to build a disposal facility for commercial and federal low-level

waste in Andrews County, Texas, was filed August 2, 2004, by Waste Control Specialists

LLC.

1

National Research Council, Board on Radioactive Waste Management, Rethinking High-Level

Radioactive Waste Disposal: A Position Statement of the Board on Radioactive Waste Management

(1990), p. 2.

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Nuclear Utility Lawsuits

Nuclear utilities, which pay for most of the high-level waste disposal program through

a fee on nuclear power, have sued DOE for failing to begin the removal of spent nuclear fuel

from storage at commercial reactors by January 31, 1998, the deadline established by the

Nuclear Waste Policy Act. Industry officials contend that total damages for missing the 1998

disposal deadline could eventually reach tens of billions of dollars, assuming that no disposal

ever takes place. Claims from more than 20 nuclear utilities are pending.2

DOE has been negotiating with various reactor owners since 1999 on the missed nuclear

waste deadline and reached its first settlement agreement with a nuclear utility, PECO

Energy Co. (now part of Exelon), on July 19, 2000. The agreement allowed PECO to keep

up to $80 million in nuclear waste fee revenues during the subsequent 10 years. However,

other utilities sued DOE to block the settlement, contending that nuclear waste fees may be

used only for the DOE waste program and not as compensation for missing the disposal

deadline. The U.S. Court of Appeals for the 11th Circuit agreed, ruling September 24, 2002,

that any compensation would have to come from general revenues or other sources than the

waste fund.

Exelon announced a settlement with the Department of Justice August 10, 2004, in

which compensation for the company’s nuclear waste storage costs would be paid from the

federal Judgment Fund. Exelon, which operates 17 reactors, calculates that it would be

reimbursed $300 million if DOE began taking waste by the previous goal of 2010, and up

to $600 million if the schedule slipped to 2015.

Although some of the program’s delays have been blamed on poor management, DOE

contends that tight funding has been a major barrier. DOE cannot spend the nuclear

industry’s mandatory waste fees without congressional appropriations, and only about half

the total fees collected have been appropriated to the program so far. However, some surplus

in the fund may be necessary to pay future nuclear waste disposal costs after today’s nuclear

plants have ceased operation. The nuclear industry and others have long urged changes in

the waste program’s funding mechanism but have consistently been stymied by budget

scoring and policy issues.

Nuclear Spent Fuel Legislation

Continued delays in the Yucca Mountain project have prompted calls for legislative

redirection of the nuclear waste program. In its FY2007 budget submission, DOE announced

that “the administration intends to submit to Congress a legislative proposal to address

regulatory, funding and other issues to allow the Department to move forward with this

critical project.”3 Details of the legislation were not announced, but potential topics include

the EPA’s repository standards, federal interim storage of commercial spent fuel, and the

program’s access to the Nuclear Waste Fund.

2

“More Utility Damage Claims Expected,” NuclearFuel, January 20, 2003, p. 8.

3

DOE, FY 2007 Congressional Budget Request Budget Highlights, February 2006, p. 92.

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President Bush recommended the Yucca Mountain site to Congress on February 15,

2002, and Nevada Governor Guinn submitted a notice of disapproval, or “state veto,” April

8, 2002, as allowed by NWPA. The state veto would have blocked further repository

development at Yucca Mountain if a resolution approving the site had not been passed by

Congress and signed into law within 90 days of continuous session.

Senator Bingaman introduced the approval resolution in the Senate April 9, 2002

(S.J.Res. 34), and Representative Barton introduced it in the House April 11, 2002 (H.J.Res.

87). The Subcommittee on Energy and Air Quality of the House Committee on Energy and

Commerce approved H.J.Res. 87 on April 23 by a 24-2 vote, and the full Committee

approved the measure two days later, 41-6 (H.Rept. 107-425). The resolution was passed

by the House May 8, 2002, by a vote of 306-117. The Senate Committee on Energy and

Natural Resources approved S.J.Res. 34 by a 13-10 vote June 5, 2002 (S.Rept. 107-159).

Following a 60-39 vote to consider S.J.Res. 34, the Senate passed H.J.Res. 87 by voice vote

July 9, 2002. President Bush signed the resolution July 23, 2002 (P.L. 107-200).

Members of the Nevada and Utah congressional delegations introduced legislation on

December 14, 2005, to require commercial nuclear reactor operators to place their spent

nuclear fuel into on-site dry storage casks, which would then become the permanent

responsibility of DOE (H.R. 4538, S. 2099). Opponents of the measure contend that it would

leave spent fuel at reactor sites indefinitely and undermine the Nuclear Waste Policy Act.

However, supporters argue that the waste would be safer in dry storage at reactor sites than

if it were shipped across the country to Yucca Mountain or the proposed Private Fuel Storage

(PFS) site in Utah.

Characteristics of Nuclear Waste

Radioactive waste is a term that encompasses a broad range of material with widely

varying characteristics. Some has relatively slight radioactivity and is safe to handle, while

other types are intensely hot in both temperature and radioactivity. Some decays to safe

levels of radioactivity in a matter of days or weeks, while other types will remain dangerous

for thousands of years. Major types of radioactive waste are generally defined by DOE and

the Nuclear Regulatory Commission (NRC) as follows:

Spent nuclear fuel. Fuel rods that have been permanently withdrawn from a nuclear

reactor because they can no longer efficiently sustain a nuclear chain reaction (although they

contain uranium and plutonium that could be extracted through reprocessing to make new

fuel). By far the most radioactive type of civilian nuclear waste, spent fuel contains extremely

hot but relatively short-lived fission products (fragments of the nuclei of uranium and other

fissile elements) as well as long-lived radionuclides such as plutonium, which remains

dangerously radioactive for tens of thousands of years or more.

High-level waste. Highly radioactive residue created by spent fuel reprocessing (almost

entirely for defense purposes in the United States). High-level waste contains most of the

radioactive fission products of spent fuel, but most of the uranium and plutonium usually has

been removed for re-use. Enough long-lived radioactive elements remain, however, to

require isolation for 10,000 years or more.

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Transuranic (TRU) waste. Relatively low-activity waste that contains more than a

certain level of long-lived elements heavier than uranium (primarily plutonium). Shielding

may be required for handling of some types of TRU waste. In the United States, transuranic

waste is generated almost entirely by nuclear weapons production processes. Because of the

plutonium, long-term isolation is required.

Low-level waste. Radioactive waste not classified as spent fuel, high-level waste, TRU

waste, or byproduct material such as uranium mill tailings (below). Four classes of low-level

waste have been established by NRC, ranging from least radioactive and shortest-lived to the

longest-lived and most radioactive. Although some types of low-level waste can be more

radioactive than some types of high-level waste, in general low-level waste contains

relatively low amounts of radioactivity that decays relatively quickly. Low-level waste

disposal facilities cannot accept material that exceeds NRC concentration limits.

Uranium mill tailings. Sand-like residues remaining from the processing of uranium

ore. Such tailings have very low radioactivity but extremely large volumes that can pose a

hazard, particularly from radon emissions or groundwater contamination.

Mixed waste. High-level, low-level or TRU waste that contains hazardous nonradioactive waste. Such waste poses serious institutional problems, because the radioactive

portion is regulated by DOE or NRC under the Atomic Energy Act, while the Environmental

Protection Agency (EPA) regulates the non-radioactive elements under the Resource

Conservation and Recovery Act (RCRA).

Spent Nuclear Fuel

When spent nuclear fuel is removed from a reactor, usually after several years of power

production, it is thermally hot and highly radioactive. The spent fuel is in the form of fuel

assemblies, which consist of arrays of metal-clad fuel rods 12-15 feet long.

A fresh fuel rod, which emits relatively little radioactivity, contains uranium that has

been enriched in the isotope U-235 (usually 3%-5%). But after nuclear fission has taken

place in the reactor, many of the uranium nuclei in the fuel rods have been split into a variety

of highly radioactive fission products; others have absorbed neutrons to become radioactive

plutonium, some of which has also split into fission products. Radioactive gases are also

contained in the spent fuel rods. Newly withdrawn spent fuel assemblies are stored in deep

pools of water adjacent to the reactors to keep them from overheating and to protect workers

from radiation.

Spent fuel discharged from U.S. commercial nuclear reactors is currently stored at 72

power plant sites around the nation, plus two small central storage facilities. At the end of

2002 (the most recent DOE survey), commercial spent fuel totaled 46,927 metric tons. A

typical large commercial nuclear reactor discharges an average of 20-30 metric tons of spent

fuel per year — an average of about 2,150 metric tons annually for the entire U.S. nuclear

power industry. As a result, the total amount of commercial spent fuel is expected to exceed

53,000 metric tons by the end of 2005 and 62,000 metric tons by 2010, when the Yucca

Mountain repository had been planned to open. Including 7,000 metric tons of DOE spent

fuel and high-level waste that is also planned for disposal at Yucca Mountain, the total

amount would nearly reach NWPA’s 70,000-metric-ton limit by 2010. (For details on

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current spent fuel storage, see CRS Report RS22001, Spent Nuclear Fuel Storage Locations

and Inventory, by Anthony Andrews.)

As long as nuclear power continues to be generated, the amounts stored at plant sites

will continue to grow until an interim storage facility or a permanent repository can be

opened — or until alternative treatment and disposal technology is developed. DOE

estimates that the amount of commercial spent fuel and other highly radioactive waste may

grow to 105,000 metric tons by 2035.4

New storage capacity at operating nuclear plant sites or other locations will be required

if DOE is unable to begin accepting waste into its disposal system for another six years or

longer. Most utilities are expected to construct new dry storage capacity for their older fuel.

On-site dry storage facilities currently in operation or planned typically consist of metal casks

or concrete modules. NRC has determined that spent fuel could be stored safely at reactor

sites for up to 100 years.5

The terrorist attacks of September 11, 2001, heightened concerns about the vulnerability

of stored spent fuel. Concerns have been raised that an aircraft crash into a reactor’s pool

area could drain the pool and cause the spent fuel inside to overheat. A report released by

NRC January 17, 2001, found that overheating could cause the zirconium alloy cladding of

spent fuel to catch fire and release hazardous amounts of radioactivity, although it

characterized the probability of such a fire as low.

In a report released April 6, 2005, the National Academy of Sciences (NAS) found that

“successful terrorist attacks on spent fuel pools, though difficult, are possible.” To reduce

the likelihood of spent fuel cladding fires, the NAS study recommended that hotter and

cooler spent fuel assemblies be interspersed throughout spent fuel pools, that spray systems

be installed above the pools, and that more fuel be transferred from pools to dry cask

storage.6 NRC has agreed to consider some of the recommendations, although it contends

that current security measures would prevent successful attacks. The nuclear industry

contends that the several hours required for uncovered spent fuel to heat up enough to catch

fire would allow ample time for alternative measures to cool the fuel. The FY2006 Energy

and Water appropriations bill (P.L. 109-103) gives NRC an additional $21 million to

implement the NAS recommendations.

Commercial Low-Level Waste

Low-level waste disposed of in commercial sites makes up about a third of all

accumulated low-level waste in the United States; the remaining two-thirds has been

generated by DOE activities and sent to DOE-owned disposal sites. Several million cubic

feet of commercial low-level waste is shipped to disposal sites each year, according to NRC.

4

DOE Office of Civilian Radioactive Waste Management, OCRWM Annual Report to Congress,

Fiscal Year 2002, DOE/RW-0560, October 2003, Appendix C.

5

Nuclear Regulatory Commission, Waste Confidence Decision Review, 55 Federal Register 38474,

September 18, 1990.

6

National Academy of Sciences, Safety and Security of Commercial Spent Nuclear Fuel Storage:

Public Report, released April 6, 2005, p. 2.

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Volumes can vary widely from year to year, based on the status of nuclear decommissioning

projects and cleanup activities that can generate especially large quantities.

For more background on radioactive waste characteristics, see CRS Report RL32163,

Radioactive Waste Streams: An Overview of Waste Classification for Disposal, by Anthony

Andrews.

Current Policy and Regulation

Spent fuel and high-level waste are a federal responsibility, while states are authorized

to develop disposal facilities for commercial low-level waste. In general, disposal

requirements have grown more stringent over the years, in line with overall national

environmental policy and heightened concerns about the hazards of radioactivity.

Spent Nuclear Fuel

Current Program. The Nuclear Waste Policy Act of 1982 (NWPA, P.L. 97-425)

established a system for selecting a geologic repository for the permanent disposal of up to

70,000 metric tons (77,000 tons) of spent nuclear fuel and high-level waste. DOE’s Office

of Civilian Radioactive Waste Management (OCRWM) was created to carry out the

program. The Nuclear Waste Fund, holding receipts from a fee on commercial nuclear

power and federal contributions for emplacement of high-level defense waste, was

established to pay for the program. DOE was required to select three candidate sites for the

first national high-level waste repository.

After much controversy over DOE’s implementation of NWPA, the act was

substantially modified by the Nuclear Waste Policy Amendments Act of 1987 (Title IV,

Subtitle A of P.L. 100-203, the Omnibus Budget Reconciliation Act of 1987). Under the

amendments, the only candidate site DOE may consider for a permanent high-level waste

repository is at Yucca Mountain, Nevada. If that site cannot be licensed, DOE must return

to Congress for further instructions.

The 1987 amendments also authorized construction of a monitored retrievable storage

(MRS) facility to store spent fuel and prepare it for delivery to the repository. But because

of fears that the MRS would reduce the need to open the permanent repository and become

a de facto repository itself, the law forbids DOE from selecting an MRS site until

recommending to the President that a permanent repository be constructed. The repository

recommendation occurred in February 2002, but DOE has not announced any plans for an

MRS.

Waste Facility Schedules. Upon releasing the civilian nuclear waste program’s

FY2006 budget request on February 7, 2005, DOE officials announced that the opening of

the planned Yucca Mountain repository would be delayed at least two years from the

previous goal of 2010 — and more than 14 years after the statutory deadline of January 1998.

DOE announced on October 25, 2005, that it would require most spent fuel to be sealed

in standardized canisters before shipment to Yucca Mountain, a change that would largely

eliminate the handling of individual fuel assemblies at the site. DOE subsequently informed

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NRC that the changes would further delay submission of the Yucca Mountain license

application: “Until this plan is approved and these changes have been incorporated into the

project’s baseline design, DOE will be unable to estimate realistically when the license

application will be submitted.”7

The major activity at the Yucca Mountain site so far has been the construction and

operation of an “exploratory studies facility” (ESF) with a 25-foot-diameter tunnel boring

machine. The ESF consists primarily of a five-mile tunnel with ramps leading to the surface

at its north and south ends. The tunnel boring machine began excavating the north ramp in

October 1994 and broke through to the surface at the south entrance April 25, 1997.

Underground studies are being conducted at several side alcoves that have been excavated

off the main tunnel.

DOE completed a “viability assessment” of Yucca Mountain in December 1998, which

was followed by a draft environmental impact statement (EIS) for the project in July 1999.

DOE issued a preliminary site suitability evaluation August 21, 2001, that found Yucca

Mountain could meet EPA and NRC requirements.

Energy Secretary Abraham on February 14, 2002, recommended to the President that

the Yucca Mountain project go forward. At the same time, the Secretary submitted the final

EIS (see [http://www.ocrwm.doe.gov/documents/feis_a/index.htm]) and other supporting

materials (for details, see the Yucca Mountain Project home page at [http://www.ocrwm.

doe.gov]). As noted previously, President Bush recommended the Yucca Mountain site to

Congress the day after the Secretary’s recommendation, and Nevada Governor Guinn

subsequently submitted a notice of disapproval, or “state veto,” as allowed by NWPA. An

approval resolution passed by the House and Senate to overturn the state veto was signed by

the President July 23, 2002 (P.L. 107-200).

DOE announced April 8, 2004, that it planned to transport nuclear waste mostly by rail

to the planned Yucca Mountain repository. The Record of Decision on the waste

transportation mode was published in the Federal Register along with the selection of a

corridor in Nevada for a 300-mile rail spur to the Yucca Mountain site. DOE estimated that

Yucca Mountain would receive 9,000-10,000 rail shipments and 3,000-3,300 truck shipments

over a 24-year period after the repository opened. The repository is to be permanently closed

in 2116, according to the DOE viability assessment.

The quality of scientific work at Yucca Mountain was called into question by DOE’s

March 16, 2005, disclosure of e-mails from geologists indicating that some quality assurance

documentation had been falsified. DOE currently is determining whether the problems affect

the completeness and accuracy of information submitted to NRC in support of the planned

Yucca Mountain license application. Members of the Nevada congressional delegation and

state officials have called for the Yucca Mountain project to be suspended and for an

independent commission to review all of DOE’s scientific work at Yucca Mountain.8

7

Nuclear Regulatory Commission, The Department of Energy’s Sixth Monthly Status Report

Regarding LSN Certification and License Application Submittal, November 1, 2005.

8

Elaine Hiruo, “DOE Sought Help From Scientist Who Wrote E-mails,” NuclearFuel, April 11,

(continued...)

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The state of Nevada is also fighting DOE in court. A suit filed in June 2002 charged

DOE with violating NWPA by relying too strongly on casks and other engineered barriers

to prevent radioactive releases, rather than on Yucca Mountain’s natural site characteristics.

The most recent, filed January 9, 2003, contended that Congress violated the Constitution

in eliminating all candidate waste sites except Yucca Mountain. The U.S. Court of Appeals

for the District of Columbia Circuit rejected those challenges July 9, 2004, but it struck down

EPA’s 10,000-year regulatory compliance period as too short (discussed in more detail

below).

Nevada also successfully challenged DOE’s June 30, 2004, certification that it had made

all licensing background materials available. NRC requires that such material be available

on its Web-based Licensing Support Network (LSN) at least six months before a repository

application is docketed, so the DOE certification was on the last day that would still have

allowed docketing before the end of 2004. An NRC licensing board ruled August 31, 2004,

that DOE had not yet placed all relevant information onto the system. DOE informed NRC

on November 1, 2005, that the Department “is unable to provide a predicted date for LSN

certification at this time.”9

Delays in the Yucca Mountain project prompted the House Appropriations Committee

to include language in its report on the FY2006 Energy and Water appropriations bill

directing DOE “to begin the movement of spent fuel to centralized interim storage at one or

more DOE sites within fiscal year 2006.”10 The bill as passed by the House (H.R. 2419)

would have added $10 million to the Administration’s nuclear waste funding request for that

purpose. During floor debate, questions arose about potential conflicts between the

committee report language and restrictions on DOE interim storage imposed by NWPA and

state agreements. The Senate-passed version of the bill did not include comparable report

language on spent fuel storage.

The conference agreement on the FY2006 Energy and Water bill (H.Rept. 109-275, P.L.

109-103) provides $500 million for nuclear waste disposal — $150 million from the Nuclear

Waste Fund and $350 million from the Defense Nuclear Waste Disposal Account. Of the

defense waste funding, $50 million is provided for DOE to develop a spent nuclear fuel

recycling plan, in conjunction with a recycling technology development plan required under

the Advanced Fuel Cycle Initiative (AFCI). The detailed program plan is to be submitted by

March 31, 2006, and a “site selection competition” for an integrated reprocessing facility is

to begin by June 30, 2006. A reprocessing site is to be selected in FY2007 and construction

to begin in FY2010. “The site competition should not be limited to DOE sites, but should

be open to a wide range of other possible federal and nonfederal sites on a strictly voluntary

basis,” according to the conference report. Applicants for a reprocessing facility can receive

up to $5 million per site, up to a total of $20 million, to prepare detailed proposals.

8

(...continued)

2005, p. 1.

9

Nuclear Regulatory Commission, The Department of Energy’s Sixth Monthly Status Report

Regarding LSN Certification and License Application Submittal, November 1, 2005.

10

H.Rept. 109-86, May 18, 2005.

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DOE is requesting no additional funding for FY2007 for spent fuel recycling in the

nuclear waste program. However, the FY2007 budget request would sharply boost research

funding for recycling (also called reprocessing) in the AFCI program — from $79.2 million

to $243.0 million — as part of the Global Nuclear Energy Partnership (GNEP).

The DOE Total System Life Cycle Cost Report, issued in May 2001 and updated in

September 2003, estimates that the entire program will cost $56 billion (in constant 2000

dollars) through 2119.

Private Interim Storage. In response to delays in the federal nuclear waste program,

a utility consortium signed an agreement with a Utah Indian tribe on December 27, 1996, to

develop a private spent fuel storage facility on tribal land. The Private Fuel Storage (PFS)

consortium submitted a license application to NRC on June 25, 1997, and an NRC licensing

board recommended approval on February 24, 2005. On September 9, 2005, NRC denied

the State of Utah’s final appeals and authorized the NRC staff to issue the license. The 20year license for storing up to 44,000 tons of spent fuel in dry casks was issued on February

21, 2006.

Despite the NRC license, the PFS facility still needs approval from the Bureau of Land

Management (BLM) to build a rail line or widen a highway through federal land to transport

waste to the site. BLM officials said in November 2005 that such approval would not be

given until the Department of Defense has studied the impact of any such land-use changes

on nearby military facilities, as required by section 2815 of the National Defense

Authorization Act for FY2000 (P.L. 106-65). That study has reportedly not begun.11 In

addition to the BLM approval, PFS will need approval from the Bureau of Indian Affairs and

the Surface Transportation Board. The NRC license also requires PFS to demonstrate

adequate funding before construction would be allowed. No contracts to store waste at the

PFS site have been announced.

The NRC licensing board had determined on March 10, 2003, that the PFS facility

should not be licensed without sufficient evidence that it could withstand a crash from fighter

jets based nearby. In February 2005, the three-member panel decided 2-1 that most crashes

would not breach the storage casks and that the probability of radioactive releases was

therefore low enough to allow the facility to be licensed. The U.S. Circuit Court of Appeals

for the 10th Circuit on August 4, 2004, struck down several statutes that Utah had enacted to

block the PFS project, but the state is appealing the decision.

Regulatory Requirements. NWPA requires that high-level waste facilities be

licensed by the NRC in accordance with general standards issued by EPA. Under the Energy

Policy Act of 1992 (P.L. 102-486), EPA was required to write new standards specifically for

Yucca Mountain. NWPA also requires the repository to meet general siting guidelines

prepared by DOE and approved by NRC. Transportation of waste to storage and disposal

sites is regulated by NRC and the Department of Transportation (DOT). Under NWPA,

DOE shipments to Yucca Mountain must use NRC-certified casks and comply with NRC

11

Foy, Paul. “BLM Blocking Skull Valley Nuclear Waste Project.” Associated Press. November

2, 2005.

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requirements for notifying state and local governments. Yucca Mountain shipments must

also follow DOT regulations on routing, placarding, and safety.

NRC’s licensing requirements for Yucca Mountain, at 10 CFR 63, require compliance

with EPA’s standards (described below) and establish procedures that DOE must follow in

seeking a repository license. For example, DOE must conduct a repository performance

confirmation program that would indicate whether natural and man-made systems were

functioning as intended and assure that other assumptions about repository conditions were

accurate.

The Energy Policy Act of 1992 (P.L. 102-486) made a number of changes in the nuclear

waste regulatory system, particularly that EPA must issue new environmental standards

specifically for the Yucca Mountain repository site. General EPA repository standards

previously issued and subsequently revised no longer apply to Yucca Mountain. DOE and

NRC had complained that some of EPA’s general standards might be impossible or

impractical to meet.

The new standards, which limit the radiation dose that the repository could impose on

individual members of the public, were required to be consistent with the findings of a study

by the National Academy of Sciences (NAS), which was issued August 1, 1995.12 The NAS

study recommended that the Yucca Mountain environmental standards establish a limit on

risk to individuals near the repository, rather than setting specific limits for the releases of

radioactive material or on radioactive doses, as under previous EPA standards. The NAS

study also examined the potential for human intrusion into the repository and found no

scientific basis for predicting human behavior thousands of years into the future.

Pursuant to the Energy Policy Act, EPA published its proposed Yucca Mountain

radiation protection standards on August 27, 1999. The proposal would have limited annual

radiation doses to 15 millirems for the “reasonably maximally exposed individual,” and to

4 millirems from groundwater exposure, for the first 10,000 years of repository operation.

EPA calculated that its standard would result in an annual risk of fatal cancer for the

maximally exposed individual of seven chances in a million. The nuclear industry criticized

the EPA proposal as being unnecessarily stringent, particularly the groundwater standard. On

the other hand, environmental groups contended that the 10,000-year standard proposed by

EPA was too short, because DOE had projected that radioactive releases from the repository

would peak after about 400,000 years.

EPA issued its final Yucca Mountain standards on June 6, 2001. The final standards

included most of the major provisions of the proposed version, including the 15 millirem

overall exposure limit and the 4 millirem groundwater limit. The most significant changes

in the final rules were to require that compliance be demonstrated about one mile closer to

the repository and to double the amount of groundwater that would be analyzed. Despite the

Department’s opposition to the EPA standards, DOE’s site suitability evaluation determined

that the Yucca Mountain site would be able to meet them. NRC revised its repository

regulations September 7, 2001, to conform to the EPA standards.

12

National Research Council. Technical Bases for Yucca Mountain Standards. National Academy

Press. 1995.

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In a ruling that could delay the nuclear waste program, a three-judge panel of the U.S.

Court of Appeals for the District of Columbia Circuit on July 9, 2004, struck down the

10,000-year regulatory compliance period in the EPA and NRC Yucca Mountain standards.

The court ruled that the 10,000-year period was inconsistent with the NAS study on which

the Energy Policy Act required the Yucca Mountain regulations to be based. In fact, the

court found, the NAS study had specifically rejected a 10,000-year compliance period

because of analysis that showed peak radioactive exposures from the repository would take

place several hundred thousand years in the future.

In response to the court decision, EPA proposed a new version of the Yucca Mountain

standards on August 9, 2005. The proposal would retain the dose limits of the previous

standard for the first 10,000 years but allow a higher annual dose of 350 millirems for the

period of 10,000 years through 1 million years. The Final Environmental Impact Statement

for the Yucca Mountain repository estimates that mean peak doses — occurring after

400,000 years — would be about 150 millirems (Volume 1, Chapter 5). EPA also is

proposing to base the new Yucca Mountain standard on the median dose, rather than the

mean, potentially making it easier to meet. Nevada state officials called EPA’s proposed

standard far too lenient and charged that it was “unlawful and arbitrary.”13

Alternative Technologies. Several alternatives to the geologic disposal of spent

fuel have been studied by DOE and its predecessor agencies, as well as technologies that

might make waste disposal easier. However, most of these technologies involve large

technical obstacles, uncertain costs, and potential public opposition.

Among the primary long-term disposal alternatives to geologic repositories are disposal

in deep ocean trenches and transport into space, neither of which is currently being studied

by DOE. Other technologies have been studied that, while probably not replacing geologic

disposal, might make geologic disposal safer and more predictable. Chief among these is the

reprocessing or “recycling” of spent fuel so that plutonium, uranium, and other long-lived

radionuclides could be converted to faster-decaying fission products in special nuclear

reactors or particle accelerators. The spent fuel recycling provisions in the FY2006 Energy

and Water Development Appropriations bill and the Administration’s GNEP initiative,

discussed above, seem to indicate growing interest in this area.

Funding. DOE is requesting $544.5 million in FY2007 for the Office of Civilian

Radioactive Waste Management. The request is 10% above the FY2006 appropriation of

$495 million but nearly $30 million below the FY2005 level, when the program had

anticipated a rapid funding escalation to open the Yucca Mountain repository by 2010.

According to DOE, the FY2007 funding request will allow OCRWM to continue revising

the Yucca Mountain license application to reflect the recently announced canistered fuel

concept, correct quality assurance problems, and meet the new EPA environmental standards.

However, there is no announced target date for completing the license application. A

significant funding increase for transportation would allow completion of an environmental

13

Office of the Governor, Agency for Nuclear Projects. Comments by the State of Nevada on EPA’s

Proposed New Radiation Protection Rule for the Yucca Mountain Nuclear Waste Repository.

November 2005.

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impact statement and record of decision on a proposed 320-mile rail spur to Yucca

Mountain.14

Funding for the program is provided under two appropriations accounts, as shown in

Table 1. The Administration is requesting $156.4 million from the Nuclear Waste Fund,

which holds the fees paid by nuclear utilities. An additional $388.1 million is requested

under the Defense Nuclear Waste Disposal account, which pays for disposal of high-level

waste from the nuclear weapons program in the planned Yucca Mountain repository.

Table 1. DOE Civilian Spent Fuel Management Funding

(in millions of current dollars)

FY2005

Approp.

FY2006

Approp.

FY2007

Request

Yucca Mountain

413.1

306.0

355.4

Transportation

30.7

20.0

67.7

Program integration

49.3

40.5

46.0

Program direction

79.4

79.2

75.4

Spent fuel recycling

—

49.5

—

Total

572.4

495.0

544.5

Nuclear Waste Fund appropriations

343.3

148.5

156.4

Defense waste appropriations

229.2

346.5

388.1

Program

Source of Funding

Sources: Appropriations Committee reports, DOE FY2006 Congressional Budget Request.

* Subcategories not specified.

Although nuclear utilities pay fees to the Nuclear Waste Fund to cover the disposal

costs of civilian nuclear spent fuel, DOE cannot spend the money in the fund until it is

appropriated by Congress. Through mid-FY2005, utility nuclear waste fees and interest

totaled $23.222 billion, of which $6.272 billion had been disbursed to the waste disposal

program, according to DOE’s program summary report (see [http://www.ocrwm.

doe.gov/pm/budget/]), leaving a balance of $16.950 billion in the Nuclear Waste Fund. The

nuclear waste program’s appropriations for FY1983-FY2006 total $9.143 billion, according

to DOE, including $2.920 billion for defense waste disposal.

Low-Level Radioactive Waste

Current Policy. Selecting disposal sites for low-level radioactive waste, which

generally consists of low concentrations of relatively short-lived radionuclides, is a state

responsibility under the 1980 Low-level Radioactive Waste Policy Act and 1985

14

DOE, FY2007 Congressional Budget, vol. 4, p. 566.

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amendments. Most states have joined congressionally approved interstate compacts to

handle low-level waste disposal, while others are developing single-state disposal sites.

Under the 1985 amendments, the nation’s three (at that time) operating commercial low-level

waste disposal facilities could start refusing to accept waste from outside their regional

interstate compacts after the end of 1992. One site is currently using that authority and

another closed, leaving one open to nationwide disposal of all major types of low-level

waste. A third site, in Utah, has since become available nationwide for most Class A lowlevel waste.

Despite the 1992 deadline, no new disposal sites have been opened. Legislation

providing congressional consent to a compact among Texas, Maine, and Vermont was signed

by President Clinton September 20, 1998 (P.L. 105-236). However, on October 22, 1998,

a proposed disposal site near Sierra Blanca, Texas, was rejected by the Texas Natural

Resource Conservation Commission, and Maine has since withdrawn. Texas Governor Perry

signed legislation June 20, 2003, authorizing the Texas Commission on Environment Quality

to license adjacent disposal facilities for commercial and federally generated low-level waste.

Pursuant to that statute, an application to build a disposal facility for commercial and federal

low-level waste in Andrews County, Texas, was filed August 2, 2004, by Waste Control

Specialists LLC.

The Midwestern Compact voted June 26, 1997, to halt development of a disposal

facility in Ohio. Nebraska regulators rejected a proposed waste site for the Central Compact

December 21, 1998, drawing a lawsuit from five utilities in the region. A U.S. district court

judge ruled September 30, 2002, that Nebraska had exercised bad faith in disapproving the

site and ordered the state to pay $151 million to the compact. A settlement was reached

August 9, 2004, in which Nebraska will pay the compact $140.4 million, and the compact

will seek access to the planned Texas disposal facility. Most other regional disposal

compacts and individual states that have not joined compacts are making little progress

toward finding disposal sites, largely because of public opposition and the continued

availability of the disposal facilities in South Carolina and, for most Class A waste, Utah.

One disposal facility, at Barnwell, South Carolina, is currently accepting all Class A,

B and C low-level waste from most states. The Barnwell facility had stopped accepting waste

from outside the Southeast Compact at the end of June 1994. The Southeast Compact

Commission in May 1995 twice rejected a South Carolina proposal to open the Barnwell site

to waste generators outside the Southeast and to bar access to North Carolina until that state

opened a new regional disposal facility, as required by the compact. The rejection of those

proposals led the South Carolina General Assembly to vote in 1995 to withdraw from the

Southeast Compact and begin accepting waste at Barnwell from all states but North Carolina.

North Carolina withdrew from the Southeast Compact July 26, 1999, a move that prompted

a lawsuit from the compact on July 10, 2000.

South Carolina joined the Atlantic Compact (formerly the Northeast Compact) with

Connecticut and New Jersey on July 1, 2000. Under the compact, South Carolina can limit

the use of the Barnwell facility to the three compact members. A state law enacted in June

2000 phases out acceptance of non-compact waste through 2008.

The only other existing disposal facility for all three major classes of low-level waste

is at Hanford, Washington. Controlled by the Northwest Compact, the Hanford site will

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continue taking waste from the neighboring Rocky Mountain Compact under a contract.

States barred from access to existing disposal facilities are likely to require low-level waste

generators to store their waste on site until new disposal sites are available, particularly for

Class B and C waste.

Regulatory Requirements. Licensing of commercial low-level waste facilities is

carried out under the Atomic Energy Act by NRC or by “agreement states” with regulatory

programs approved by NRC. NRC regulations governing low-level waste licenses must

conform to general environmental protection standards and radiation protection guidelines

issued by EPA. Transportation of low-level waste is jointly regulated by NRC and the

Department of Transportation.

Most states considering new or expanded low-level waste disposal facilities, including

Texas and Utah, are agreement states. Most states, both agreement and non-agreement, have

established substantially stricter technical requirements for low-level waste disposal than

NRC’s, such as banning shallow land burial and requiring concrete bunkers and other

engineered barriers. NRC would issue the licenses in non-agreement states.

LEGISLATION

H.R. 526 (Berkley)

Redirects the Nuclear Waste Fund established under the Nuclear Waste Policy Act of

1982 into research, development, and utilization of risk-decreasing technologies for the

onsite storage and eventual reduction of radiation levels of nuclear waste. Introduced

February 2, 2005; referred to Committees on Energy and Commerce; Science; and Ways and

Means.

H.R. 895 (Berkley)

Provides for interagency planning for preparing for, defending against, and responding

to the consequences of terrorist attacks against the Yucca Mountain Project. Introduced

February 17, 2005; referred to Committees on Energy and Commerce and Homeland

Security.

H.R. 2419 (Hobson)

Energy and Water Development Appropriations for FY2006. Provides funding for DOE

nuclear waste program. Reported as an original measure by the House Committee on

Appropriations and introduced May 18, 2005 (H.Rept. 109-86). Passed House May 24,

2005, by vote of 416-13. Passed Senate July 1, 2005, by vote of 92-3 (S.Rept. 109-84).

Signed by the President November 19, 2005 (H.Rept. 109-275, P.L. 109-103).

H.R. 4538 (Matheson)/S. 2099 (Reid)

Spent Nuclear Fuel On-Site Storage Security Act of 2005. Requires commercial nuclear

power plants to transfer spent fuel from pools to dry storage casks and then convey title to

the Secretary of Energy. Introduced December 14, 2005. House bill referred to Committee

on Energy and Commerce; Senate bill referred to Committee on Environment and Public

Works.

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CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress. House. Committee on Energy and Commerce. Subcommittee on Energy and

Air Quality. A Review of the President’s Recommendation to Develop a Nuclear Waste

Repository at Yucca Mountain, Nevada. Hearing, 107th Congress, 2nd session. April 18,

2002. Washington: GPO, 2002. 294 p. Serial no. 107-99.

U.S. Congress. Senate. Committee on Energy and Natural Resources. Low-Level Radioactive

Waste. Hearing, 108th Congress, 2nd session. September 30, 2004. Washington: GPO,

2005. 62 p.

U.S. Congress. Senate. Yucca Mountain Repository Development. Hearings, 107th Congress,

1st session. May 16, 22, and 23, 2002. Washington: GPO, 2002. 240 p. S. Hrg. 107483.

FOR ADDITIONAL READING

Harvard University. John F. Kennedy School of Government. Belfer Center for Science and

International Affairs. The Economics of Reprocessing vs. Direct Disposal of Spent

Nuclear Fuel. DE-FG26-99FT4028. December 2003.

Nuclear Waste Technical Review Board. Report to the U.S. Congress and the U.S. Secretary

of Energy. May 2004. 152 p.

U.S. Department of Energy. Office of Civilian Radioactive Waste Management home page;

covers DOE activities for disposal, transportation, and other management of civilian

nuclear waste. [http://www.ocrwm.doe.gov].

U.S. General Accounting Office. Low-Level Radioactive Waste: Disposal Availability

Adequate in the Short Term, but Oversight Needed to Identify Any Future Shortfalls.

GAO-04-604. June 2004. 53 p.

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