Order Code IB92059
CRS Issue Brief for Congress
Received through the CRS Web
Civilian Nuclear Waste Disposal
Updated October 22, 2004
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
(H.J.Res. 87) May 8, 2002, by a vote of 306-
waste has posed difficult issues for Congress
117. The Senate passed H.J.Res. 87 by voice
since the beginning of the nuclear power
vote July 9, 2002, and the President signed it
industry in the 1950s. Federal policy is based
July 23, 2002 (P.L. 107-200).
on the premise that nuclear waste can be
disposed of safely, but new storage and dis-
DOE plans to submit a construction
posal facilities have frequently been chal-
permit application to NRC in late 2004 for the
lenged on safety, health, and environmental
Yucca Mountain repository. The Administra-
grounds. Although civilian radioactive waste
tion is requesting $880 million for the pro-
encompasses a wide range of materials, most
gram for FY2005, a 50% increase. The Ad-
of the current debate focuses on the highly
ministration also is proposing that $749 mil-
radioactive spent fuel from nuclear power
lion of the FY2005 request be offset by the
plants.
existing fee on nuclear power, so that the net
appropriation would be only $131 million.
The Nuclear Waste Policy Act of 1982
Because legislation to enact the proposed
(NWPA) calls for disposal of spent nuclear
offset has not been passed, the House voted to
fuel in a deep geologic repository that is
provide only the requested $131 million net
unlikely to be disturbed for thousands of
appropriation for FY2005, a funding level that
years. NWPA established an office in the
DOE warns could delay the program “indefi-
Department of Energy (DOE) to develop such
nitely.”
a repository and required the program’s civil-
ian costs to be covered by a fee on
Delays in the Yucca Mountain project
nuclear-generated electricity, paid into the
could also be created by a recent federal
Nuclear Waste Fund. Amendments to NWPA
circuit court decision that the Environmental
in 1987 restricted DOE’s repository site stud-
Protection Agency’s (EPA’s) 10,000-year
ies to Yucca Mountain in Nevada. DOE is
regulatory compliance period for the reposi-
studying numerous scientific issues at Yucca
tory was too short. However, the court re-
Mountain in preparing an application to the
jected several other challenges to EPA’s
Nuclear Regulatory Commission (NRC) for
Yucca Mountain regulations.
the planned repository. Questions about the
site include the likelihood of earthquakes,
Low-level waste sites are a state respon-
volcanoes, groundwater contamination, and
sibility under the Low-Level Radioactive
human intrusion.
Waste Policy Act of 1980. Pursuant to that
act, 10 regional compacts for disposal of low-
NWPA’s goal for loading waste into the
level waste have been approved by Congress.
repository was 1998, but DOE does not expect
Only three commercial low-level waste sites
to open the facility until 2010 at the earliest.
are currently operating, in the states of South
President Bush recommended the site to
Carolina, Utah, and Washington. The Wash-
Congress February 15, 2002, and Nevada
ington facility is accepting waste just from
Governor Guinn exercised his right to “veto”
within the Northwest and Rocky Mountain
the site April 8, 2002. A resolution to allow
regional compacts, and the Utah site accepts
Yucca Mountain licensing to proceed despite
only the least-concentrated class of low-level
the state veto was passed by the House
waste.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
President Bush’s FY2005 budget request, submitted to Congress February 2, includes
$880 million for the DOE civilian nuclear waste program — a 50% increase from FY2004.
The Administration also is proposing that $749 million of the FY2005 request be offset by
an existing fee on nuclear power, so that the net appropriation would be only $131 million.
Because legislation to enact the proposed offset has not been passed, the House voted on
June 25 to provide only the requested $131 million net appropriation for FY2005, a cut that
DOE contends would severely disrupt the program. The House Energy and Commerce
Committee on June 24 approved a bill (H.R. 3981) that would provide most of the requested
funding offset, but no further action has been taken.
A key aspect of the Environmental Protection Agency’s (EPA’s) regulations for the
planned Yucca Mountain, Nevada, nuclear waste repository was overturned July 9 by the
U.S. Court of Appeals for the District of Columbia Circuit. The three-judge panel ruled that
EPA’s 10,000-year compliance period was too short, but it rejected several other challenges
to the standards. The ruling could delay DOE’s planned license application for the Yucca
Mountain project.
Democratic Presidential Nominee John Kerry told a Nevada television station on
October 5 that, if elected, he would halt funding for Yucca Mountain and block all necessary
approvals for the repository by federal agencies under his control.
Further delays in the nuclear waste program could prove costly under a settlement
announced August 10 between the Department of Justice and Exelon Corporation, which had
filed a breach-of-contract suit over the Department of Energy’s (DOE’s) failure to begin
accepting spent fuel by 1998 as required by the Nuclear Waste Policy Act. Under the
settlement, Exelon is to be reimbursed from the federal Judgment Fund for its spent fuel
storage costs caused by the waste program delays. Exelon estimates that it will receive $300
million if DOE begins accepting waste by 2010 as currently scheduled, and up to $600
million if waste acceptance does not begin until 2015.
DOE announced April 8 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.
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
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reactors. As a result, progress on nuclear waste disposal is widely considered a prerequisite
for any future growth of nuclear power.
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
to potential volcanic activity, earthquakes, water infiltration, underground flooding, nuclear
chain reactions, and fossil fuel and mineral deposits that might encourage future human
intrusion.
However, 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. The
planned Yucca Mountain repository is not scheduled to open until 2010 at the earliest, more
than a decade later than the 1998 goal specified by NWPA.
The safety of geologic disposal of highly radioactive waste, 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 no scientific or
technical reason to think that a satisfactory geological repository cannot be built,” according
to the National Research Council.
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, and 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 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.
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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.
In response to a utility lawsuit, the U.S. Court of Appeals for the District of Columbia
Circuit ruled November 14, 1997, that DOE would be liable for unspecified damages to
nuclear utilities if it missed the 1998 deadline. DOE was ordered to work out a remedy with
the utilities under the procedures of the standard disposal contract signed by all nuclear
utilities pursuant to NWPA.
In the first set of rulings on breach-of-contract suits filed by several utilities, the U.S.
Court of Federal Claims decreed on October 29, 1998, that DOE must pay fuel storage costs
for three closed commercial reactors. Those costs are to be determined by future trials; the
three utilities are claiming damages of $2.4 billion. Damage claims were denied to Northern
States Power by another Court of Federal Claims judge on April 6, 1999, but that ruling was
reversed by the U.S. Court of Appeals for the Federal Circuit on August 31, 2000.
The Appeals court decision cleared the way for nuclear power companies to proceed
with lawsuits in the Court of Federal Claims against DOE. 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.1 The Court of Claims on May 21, 2004, denied a claim of $100 million
in damages from Indiana Michigan Power Company, ruling that the company had not
demonstrated any costs resulting from DOE’s breach of contract.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 current goal of 2010, and up to
$600 million if the schedule slipped to 2015.
1 “More Utility Damage Claims Expected,” NuclearFuel, January 20, 2003, p. 8.
2 Hiruo, Elaine. “Indiana Michigan Mulls Appeal in Spent Fuel Default Case,” Nucleonics Week,
June 3, 2004, p. 5.
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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
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).
President Bush’s FY2004 budget request recommended that discretionary spending caps
be adjusted to accommodate the Administration’s proposed nuclear waste budget increases,
but specific language to implement the idea has not been transmitted to Congress. The
nuclear industry and other program supporters have long contended that funding constraints
have slowed the program’s progress. Opponents of the program, particularly the State of
Nevada, contend that increased spending should not be directed to the Yucca Mountain site,
which they view as fundamentally flawed.
The conference agreement on an omnibus energy bill (H.R. 6), passed by the House on
November 18, 2003, would authorize funding for DOE’s ongoing spent nuclear fuel
“recycling” research and development program and require DOE to prepare a feasibility
study on deep borehole disposal. Supporters of spent fuel research contend that new
technologies could reduce the volume and long-term toxicity of nuclear waste, particularly
by destroying plutonium in the waste through nuclear fission. Opponents note that such
treatment requires reprocessing of spent fuel to at least partially separate its major
constituents, such as uranium and plutonium, and that separated plutonium could be used for
nuclear explosives. Such a program, opponents contend, could undermine U.S. nuclear
nonproliferation efforts aimed at discouraging other nations from separating plutonium from
spent nuclear fuel.
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The nuclear industry and its supporters have urged Congress to require DOE to build
an interim storage facility that could begin receiving spent fuel from nuclear power plants
as soon after the missed 1998 deadline as possible. Such a facility, consisting of storage
casks on concrete pads or in surface-based bunkers, could reduce spent fuel storage costs,
increase safety, and fulfill the federal government’s legal obligations, supporters contend (see
NEI perspective at [http://www.nei.org]).
But environmental, anti-nuclear power, and other groups warn that interim storage
would result in earlier transportation of unprecedented quantities of nuclear waste; they
contend it would be safer to leave the waste in place until a permanent solution can be found
(see Nuclear Information and Resource Service perspective at [http://www.nirs.org]).
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 uranium and other fissile
elements) as well as long-lived radionuclides such as plutonium, which remains dangerously
radioactive for tens of thousands of years.
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.
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.
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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 non-
radioactive waste. Such waste poses serious institutional problems, because the radioactive
portion is regulated by DOE or NRC under the Atomic Energy Act, while 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 atoms 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 large
pools of water adjacent to the reactors to keep them from overheating and to protect workers
from radiation.
The approximately 48,000 metric tons of spent fuel discharged from U.S. commercial
nuclear reactors through 2003 is currently stored at about 70 power plant sites around the
nation. (Some is also held at two small central storage facilities.) 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.
A typical large commercial nuclear reactor discharges an average of 20-30 metric tons
of spent fuel per year — about 2,000 metric tons annually for the entire U.S. nuclear power
industry. As a result, the total amount of spent fuel is expected to reach 60,000 metric tons
by 2010, the earliest feasible date for opening the Yucca Mountain repository, and almost
80,000 metric tons by 2020.
New storage capacity at operating nuclear plant sites 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.
The terrorist attacks of September 11, 2001, have 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
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it characterized the probability of such a fire as low. Nuclear industry representatives
contend 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.
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.
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.
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, consisting of 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
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recommendation occurred in February 2002, but DOE has not announced any plans for an
MRS.
Waste Facility Schedules. DOE’s most recent nuclear waste program schedule
calls for the repository to begin operating by 2010 — 12 years later than the law’s target date.
The major activity at the Yucca Mountain site so far has been the construction 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 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 plans to submit a license application to NRC in December 2004. DOE hopes to
receive an NRC construction permit by 2006 and a license to begin receiving waste at the
repository by 2010. However, NRC Commissioner Edward McGaffigan was quoted October
24, 2003, as calling the 2010 goal “just about impossible.”3 The repository is to be
permanently closed in 2116, according to the DOE viability assessment.
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 State of Nevada plans to vigorously oppose the Yucca Mountain license application
when it is submitted to NRC and is also fighting DOE in court, with six lawsuits currently
pending. A suit filed in June 2002 charges 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,
3 “Nuclear Regulator Says Nevada Nuke Dump May Not Open Before 2015,” Associated Press,
October 24, 2003.
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contends 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.
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 at least six months before a repository
application is docketed, so the DOE certification was on the last day that would still allow
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; however, the board estimated
that completing the task would not “take DOE a significant amount of time.”
The DOE Total System Life Cycle Cost Report, issued in May 2001, estimates that the
entire program will cost $49.3 billion (in constant 2000 dollars) from 2001-2119. The report
says the program spent $6.7 billion in year-of-expenditure dollars through FY2000.
Private Interim Storage. Delays in the federal nuclear waste program have
prompted interest in a private interim storage facility. 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. Project officials told NRC in March 1997 that
the dry-cask storage facility would be located on 98 acres of the sparsely populated
reservation of the Skull Valley Band of Goshute Indians, about 70 miles southwest of Salt
Lake City. The initial lease for the site would run for 25 years, with possible renewal for
another 25 years. The facility’s capacity would be 40,000 metric tons, available to any U.S.
nuclear utility in addition to the eight consortium members.
The PFS facility, strongly opposed by the State of Utah, would not require DOE
assistance or congressional or state approval. Six of the eight partners in the PFS consortium
have told the State of Utah that they would continue to fund the project only through the
NRC licensing phase, which is still ongoing, and not move into the construction phase unless
progress on Yucca Mountain were to bog down.
However, the future of the PFS proposal was thrown into doubt March 10, 2003, by a
licensing panel of NRC administrative law judges. The NRC panel refused to license the
facility without sufficient evidence that it could withstand a crash from fighter jets based
nearby. Developers of the proposed facility appealed to the NRC commissioners March 31,
2003. 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.
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
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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.
DOE’s repository siting guidelines, at 10 CFR 960, developed with NRC concurrence,
established the criteria that the Secretary of Energy used in determining the suitability of the
Yucca Mountain site. DOE issued new siting guidelines November 14, 2001, that prompted
the State of Nevada to file a court challenge on December 17, 2001. The new guidelines
replaced numerous individual disqualifying conditions, such as a high rate of water
movement through the repository, with an analysis of “total system performance,” in which
previously unacceptable conditions could be mitigated by other factors. The Nevada lawsuit
contends that the new guidelines allow too much reliance on waste packages and other
engineered barriers, rather than natural geologic features, to prevent radioactive releases from
the repository. However, as noted above, the Court of Appeals rejected that contention on
July 9, 2004.
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. 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 well after that period.
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EPA issued its final Yucca Mountain standards on June 6, 2001. The final standards
include 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.
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.
EPA had limited the regulatory period to 10,000 years because of the difficulty in
addressing the inherent uncertainties in demonstrating compliance for longer time frames.
The Administration is not appealing the decision but instead is moving to revise the Yucca
Mountain regulations to accommodate the long-term uncertainties. It remains unclear
whether NRC could begin considering a Yucca Mountain license application from DOE
before revised regulations were in place.
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
concept of “burning” long-lived plutonium and other radionuclides in a special nuclear
reactor or particle accelerator, converting them to faster-decaying fission products. As noted
above, the conference agreement on omnibus energy legislation (H.R. 6) would authorize
funding for DOE’s ongoing spent nuclear fuel “recycling” research and development
program and require DOE to prepare a feasibility study on deep borehole disposal.
Funding. The Bush Administration’s FY2005 budget request, released February 2,
2004, includes $880 million for the DOE civilian nuclear waste disposal program, a 50%
boost over FY2004. The Administration also is proposing that $749 million of the FY2005
request be offset by the existing nuclear waste fee, so that the net appropriation would be
only $131 million. The House Energy and Commerce Committee approved a bill (H.R.
3981, H.Rept. 108-594) on June 24, 2004, to provide most of the proposed offset. A bill
introduced November 4, 2003, by Representative Shimkus (H.R. 3429) would also change
the budget treatment of payments to the Nuclear Waste Fund so that they would offset
appropriations to the waste program.
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Because the proposed nuclear waste funding offset has not been enacted, only the
requested $131 million net appropriation was included in the FY2005 Energy and Water
Development Appropriations bill approved by the House on June 25, 2004 (H.R. 4614,
H.Rept. 108-554). According to a May 24, 2004, letter from DOE to the House
Appropriations Committee, a funding level of $131 million would force layoffs of 70% of
the program’s 2,400-person workforce and cause “an indefinite delay” in opening the Yucca
Mountain repository. DOE contends that funding for the waste program must average $1.3
billion per year between FY2005 and FY2010 to meet the current 2010 target date for
shipping nuclear waste to Yucca Mountain.
The Administration is also proposing that OCRWM take over management of DOE
defense and research waste that is currently under another program, bringing the waste
office’s total FY2005 funding request to $907.5 million. However, the House-passed Energy
and Water appropriations bill rejected the proposed transfers. Because the FY2005 Energy
and Water bill was not enacted before the start of the new fiscal year, the waste program is
currently operating under a short-term continuing resolution (P.L. 108-309).
As Table 1 indicates, about 15% of the FY2005 request for the program comes from the
Nuclear Waste Fund, with the rest coming from the defense waste account. 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 the end of FY2003, utility nuclear waste fees and interest totaled $20.457 billion,
of which $5.997 billion had been disbursed to the waste disposal program, according to
DOE’s program summary report, leaving a balance of $14.460 billion in the Nuclear Waste
Fund. Another $2.3 billion was owed by utilities for spent fuel generated before 1983. The
nuclear waste program’s appropriations for FY1983-FY2003 total about $7.906 billion,
according to DOE, including $1.975 billion for defense waste disposal.
Table 1. DOE Civilian Spent Fuel Management Funding
(in millions of current dollars)
Program
FY2003
FY2004
FY2005
FY2005
Approp.
Approp.
Request
House
Yucca Mountain
368.3
403.6
558.9
— *
Transportation
7.9
63.6
186.0

Program integration
21.2
29.7
47.6

Program direction
59.6
79.8
87.5

Total
457.0
576.6
880.0
0
Source of Funding
Nuclear Waste Fund approp.
144.1
188.9
749.0
0
Defense waste appropriations
313.0
387.7
131.0
131.0
Sources: House and Senate Appropriations Committees, DOE FY2005 Congressional Budget Request,
Congressional Record.
*Subcategories not specified. FY2005 request would be offset by $749 million, for a net appropriations of $131
million.
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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
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 only 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 low-
level waste. The Utah site’s operator, Envirocare, applied to the State on November 1, 1999,
for a license amendment to accept Class B and C waste as well. Utah regulators announced
preliminary approval of the request January 2, 2001, but Envirocare has deferred seeking
final state approval.
Despite the 1992 deadline, no new disposal sites have been opened. A facility in
California’s Ward Valley to serve California, Arizona, North Dakota, and South Dakota
received a state operating permit in 1993. However, the site is on federal land, which the
Department of the Interior would not transfer to the state as had originally been expected.
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.
Only one disposal facility, at Barnwell, S.C., 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
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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
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. However, the Envirocare site in Utah could provide nationwide
disposal if its Class B and C license is approved.
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. 6 (Tauzin)
Omnibus energy legislation that includes authorization of DOE nuclear waste
“recycling” research. Introduced April 7, 2003; passed House April 11, 2003, by vote of
247-145. Passed Senate July 31, 2003, with provisions from Senate-passed version of H.R.
4 from the 107th Congress. Conference report (108-375) passed by House November 18,
2003, by vote of 246-180. Senate rejected motion to invoke cloture November 21, 2003, by
vote of 57-40.
H.R. 238 (Boehlert)
Energy Research, Development, Demonstration, and Commercial Application Act of
2003. Includes provisions to establish a nuclear waste “recycling” research program.
Introduced January 8, 2003; referred to Committee on Science.
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H.R. 3429 (Shimkus)
Nuclear Waste Financing Act of 2003. Changes the budget treatment of payments to
the Nuclear Waste Fund so that they would offset appropriations to the DOE nuclear waste
program. Introduced November 4, 2003; referred to Committee on Energy and Commerce.
Subcommittee on Energy and Air Quality held hearing March 25, 2004.
H.R. 3981 (Barton)
Reclassifies fees paid into the Nuclear Waste Fund as offsetting collections. Introduced
March 17, 2004; referred to Committee on Energy and Commerce. Approved by committee
June 24, 2004, by vote of 29-19 (H.Rept. 108-594).
H.R. 4614 (Hobson)
Energy and Water Development Appropriations for FY2005. Includes funding for DOE
civilian nuclear waste program. Ordered reported as an original measure by House
Committee on Appropriations June 18, 2004 (H.Rept. 108-554). Passed House June 25,
2004, by vote of 370-16.
S. 14 (Domenici)
Energy Policy Act of 2003. Omnibus energy legislation that includes authorization of
DOE nuclear waste “recycling” research. Based on Chairman’s Mark ordered reported by
Committee on Energy and Natural Resources April 30, 2003. Introduced April 30, 2003;
placed directly on Senate Calendar.
S. 2095 (Domenici)
Includes same authorization of DOE nuclear waste “recycling” research as in H.R. 6
conference report. Introduced February 12, 2004, and placed on the Senate legislative
calendar.
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, U.S. Govt. Print. Off., 2002. 294 p.
“Serial no. 107-99”
U.S. Congress. House. Committee on Commerce. Subcommittee on Energy and Power.
Status of the Department of Energy Program to Develop a Permanent Geologic
Repository at Yucca Mountain, Nevada
. Hearing, 106th Congress, 2nd session. June 23,
2000. Washington, U.S. Govt. Print. Off., 2000. 165 p.
“Serial no. 106-151”
U.S. Congress. Senate. Committee on Energy and Natural Resources. Yucca Mountain
Repository Development. Hearings, 107th Congress, 1st session. May 16, 22, and 23,
2002. Washington, U.S. Govt. Print. Off., 2002. 240 p.
S. Hrg. 107-483.
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——Nuclear Waste Litigation. Hearing, 106th Congress, 2nd session. September 28, 2000.
Washington, U.S. Govt. Print. Off., 2001. 58 p.
S. Hrg. 106-918
——Nuclear Waste Storage and Disposal Policy. Hearing, 106th Congress, 1st session.
March 24, 1999. Washington, U.S. Govt. Print. Off., 1999. 99 p.
S. Hrg. 106-105
U.S. Congress. Senate. Committee on Environment and Public Works. Disposal of Low-
Level Radioactive Waste. Hearing, 106th Congress, 2nd session. July 25, 2000.
Washington, U.S. Govt. Print. Off., 2001. 166 p.
FOR ADDITIONAL READING
League of Women Voters Education Fund. The Nuclear Waste Primer. Washington, D.C.,
1993. 170 p.
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. Nuclear Waste: Impediments to Completing the Yucca
Mountain Repository Project. GAO/RCED-97-30. January 1997. 56 p.
——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.
U.S. Geological Survey. Yucca Mountain as a Radioactive-Waste Repository. Circular
1184. 1999. 19 p.
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