New Developments in Yucca Mountain Controversy

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Publication date: 
7 June 2011

The language in the FY 2012 Energy and Water Development Appropriations Bill approved last week by a key House subcommittee was explicit:

“None of the funds made available in this Act may be used to conduct closure of adjudicatory functions, technical review, or support activities associated with the Yucca Mountain geologic repository license application until the Nuclear Regulatory Commission reverses ASLB decision LBP-10-11, or for actions that irrevocably remove the possibility that Yucca Mountain may be a repository option in the future.”

ASLB decision LBP-10-11 refers to the June 2010 decision of the Nuclear Regulatory Commission’s Atomic Safety and Licensing Board denying the Department of Energy’s motion to withdraw its construction authorization application for the Yucca Mountain high-level nuclear waste repository.  In its 61-page Memorandum and Order, the Board ruled that the law did not allow Energy Secretary Steven Chu to withdrawal the application.   

In addition to this policy rider, the Energy and Water Development Appropriations Subcommittee, chaired by Rep. Rodney Frelinghuysen (R-NJ), included new funding for the repository in its bill, as described in a committee release:

“The bill rejects the Administration’s wasteful, partisan attempts to shutter the Yucca Mountain nuclear waste repository program and provides $35 million to support Yucca Mountain activities, including $10 million for the Nuclear Regulatory Commission to continue their review of the license application.”

Further information on the FY 2012 bill will be available after the full House Appropriations Committee considers the bill on June 15.

The release of this bill came the day after a difficult hearing by the House Environment and Economy Subcommittee on Yucca Mountain.  The hearing’s first panel featured three representatives.  Rep. Shelly Berkley (D-NV) denounced what she called the "1987 screw Nevada bill” that narrowed the candidate sites for the nation’s first geologic nuclear waste repository to Yucca Mountain, located 100 miles northwest of Las Vegas.  Berkley spoke with passion as she described the state’s continuing moves to block the repository.  In contrast, Rep. Doc Hastings (R-WA) criticized the Obama Administration’s “illegal” actions to dismantle the program, saying it is “time for the Administration to follow the letter of the law.”  Rep. Mike Simpson (R-ID) said Yucca Mountain was the “most frustrating dilemma” he has encountered in the last twenty to thirty years, blaming shifting policies by different Administrations for the drawn out process.  Simpson criticized the chairman of the Nuclear Regulatory Commission (NRC) for not releasing a final ruling on the above motion. 

Much of the June 1 hearing focused on a 76-page report recently issued by the Government Accountability Office entitled “Commercial Nuclear Waste: Effects of a Termination of the Yucca Mountain Repository Program and Lessons Learned” that was requested by the House Energy and Commerce Committee.

The report provides a dispassionate review of actions taken since 1983 to secure spent nuclear fuel, a process which GAO estimates has cost ratepayers and taxpayers almost $15 billion.  In 1987 Congress amended the Nuclear Policy Waste Act to direct DOE to consider only the suitability of Yucca Mountain as the site of a geological repository.  In 2002 DOE recommended Yucca Mountain; President George W. Bush and Congress concurred.  In 2008 the Bush Administration submitted a license application to the NRC to construct the repository, starting a review process that was expected to last up to four years.  On March 3, 2010, DOE submitted a request to withdraw the pending application.  The commission’s Atomic Safety and Licensing Board rejected this request in June 2010.  The full NRC has not taken a final position on the matter.
In its filing to the NRC, DOE explained its rationale for requesting the withdrawal of the application:

“The Secretary’s judgment is not that Yucca Mountain is unsafe or that there are flaws in the license application, but rather that it is not a workable option and that alternatives will better serve the public interest.”

Although the NRC had not made a final decision, DOE moved to close the project by the end of the fiscal year in late September 2010.  As explained in the GAO report:

“Amid a backdrop of uncertainty concerning the status and future of the Yucca Mountain repository license review process, DOE undertook an ambitious schedule to terminate the repository program and dismantle OCRWM [Office of Civilian Radioactive Waste Management] and the Yucca Mountain repository program by September 30, 2010, when funding would have ended under the President’s budget proposal.”

It continues:

“Starting in February 2010, DOE redirected the remaining fiscal year 2010 OCRWM  budget to fund closeout activities; hired a contractor to archive project documents, such as those supporting the license application; eliminated the jobs of all federal employees working on the project; terminated project activities carried out by contractors, including national laboratory scientists; terminated leases for office space; transferred dozens of truckloads of office equipment and computers to other DOE facilities and local schools; and closed most of its 500 contracts and subcontracts.  DOE officials told us that DOE met its September 30, 2010, deadline for closure and believed that despite the difficult task, the shutdown was orderly.”

In describing this shutdown process GAO noted “Several DOE officials told us that they had never seen such a large program with so much pressure to close down so quickly.”  The report also comments on how the loss of staff might affect the NRC license review if it is restarted, quoting a former Acting OCRWM director who said “it will take well more than 2 years to put a team back together, and even then it may not be successful.”

The GAO report also discussed some of the benefits of the project’s termination, stating:

“A key benefit of terminating the Yucca Mountain repository program, cited by the [Energy] Secretary when explaining the termination decision, is the opportunity to seek other approaches that might achieve broader acceptance than Yucca Mountain.  The proposal to build a permanent repository at Yucca Mountain has faced significant opposition from some politicians and members of the public, particularly in Nevada. Past proposals for repositories at other sites, such as the Hanford Site, faced similar opposition. If a more widely accepted alternative is identified, it carries the potential for avoiding costly delays experienced by the Yucca Mountain repository program. However, there is no guarantee that a more acceptable alternative will be identified.”

The report continues:

“The Secretary stated that advances in technology have provided the nation with time to develop an alternative approach to permanent disposal that might be more widely accepted. DOE, in a statement to the Atomic Safety and Licensing Board, stated that recent advances in methods for storing spent nuclear fuel in dry casks, rather than pools of water, will allow the spent fuel to be stored on site for a much longer period of time -- perhaps as long as 300 years. During this time, scientists could research and develop other alternatives for a permanent solution.  Furthermore, DOE stated that reprocessing of spent nuclear fuel has the potential to reduce the amount of nuclear waste and improve waste forms for disposal, although DOE noted that the technology is still in its early stages. DOE has not yet identified other alternatives and has tasked the Blue Ribbon Commission with doing so.”

The report continues, “The full significance of this benefit is not yet clear because there is not yet an effective, affordable alternative to a permanent geologic repository.”  Looking ahead, the report later states “Although any permanent disposal alternatives would come with uncertainties as to their cost and schedule - as well as to their public acceptance - it is likely to take decades to develop.”  During this time, taxpayer liability will increase since the government will not have taken possession of the spent fuel, as required by law. 

The report’s conclusion states:

“Although much time and cost was involved in efforts to develop a repository, similar mistakes have been repeated at different sites over the decades—from Lyons, Kansas, to Yucca Mountain, Nevada. Specifically, efforts have needed the transparency and other features that helped win public support at WIPP, the nation’s only federal geologic repository. They have also needed consistent policies, consistent funding, and a sustainable funding mechanism, and continuity of leadership, which could have kept the efforts focused and improved public acceptance of a repository. The nation’s next investment of significant time and resources may be more successful if these lessons are understood and implemented. Specifically, improved policies, funding, program leadership, and departmental priorities may help to ensure that costly past mistakes are not repeated. Nuclear waste disposal is extremely controversial, and no strategy can guarantee success. However, given the past and the consequences of failure, many knowledgeable sources suggested that the task may require a more predictable funding mechanism and more independence than DOE is able to provide.”

It is GAO practice to allow agencies an opportunity to respond to its reports.  This report contained a 14-page letter from Peter Lyons, Acting Assistant for Nuclear Energy.  It begins:

“The Department of Energy strongly disagrees with many of the conclusions drawn in GAO’s Draft Report.  In some areas, those conclusions are based on misapprehensions of fact.  In others, the Draft Report appears to accept on faith assertions by parties who are either ill-informed or have self-interested (for example, financial) reason to disagree with DOE’s considered judgments.”  Central to this letter are DOE’s disagreement with GAO’s assumption that the repository would open on a date certain, and the contention that alternatives to Yucca Mountain would take longer to implement.

These disagreements were discussed by the second panel at last week’s hearing, consisting of Lyons, DOE Inspector General Gregory Friedman and Mark Gaffigan, Managing Director of Natural Resources & Environment at GAO. 

The subcommittee’s members – both Republicans and Democrats - disagreed with the Administration’s termination of the project.  Much of the discussion centered on the legality of DOE’s actions, with Lyons repeatedly asked to cite the provisions of the law allowing DOE to act as it did.  For his part, Lyons did not frame the issue in technical or scientific terms, but rather spoke of the department’s desire to move beyond the 25 year old stalemate surrounding Yucca Mountain.  He stressed the importance of “social acceptance” in locating a repository, a point that was also made in the GAO report.  Members were not convinced, repeatedly citing the law.

The controversy will continue, playing out at the NRC, in the courts, and in Congress.  The funding and policy provisions in the draft House FY 2012 Energy and Water Development Appropriations Bill will be a contentious issue later this year when House and Senate conferees write a final version of the FY 2012 funding bill.  Much of this disagreement will center on process: the way in which the federal government selected Yucca Mountain as the only candidate site for the nation’s nuclear waste repository in 1987, and the means by which the federal government terminated that repository in 2010.

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