I will answer any questions at our next meeting as I will not be present at the July 08, 2014 meeting.

Transcription

1 4.1 Additional Four Papers From WM Symposia 2014 For Committee To Review: Session # 023 (Perspectives on US Repository Programs - After the US Blue Ribbon Commission) Kelly Lush suggested that I expand on any of the programs that I attended from the Waste Management Symposia As an alternative, I would like to bring to the attention of our Committee certain papers that I was not able to attend that were scheduled during programs that I did attend. The first set of four papers (14462, 14645, 14560, 14043) for the Committee to read over are from Session # 023 : Perspectives on US Repository Programs - After the US Blue Ribbon Commission. After reading these four papers over, the Committee will be more aware of the regulatory gridlock that the USA is in for long term storage of their HLW after the Yucca Mountain project was stopped by President Obama and Senator Harry Reid from Nevada. I will answer any questions at our next meeting as I will not be present at the July 08, 2014 meeting. Would the Committee like me to send to them another set of Sessions papers that I was not able to attend? Respectfully Submitted, Glenn Sutton, Committee Member Session Perspectives on US Repository Programs - After the US Blue Ribbon Commission Co Chair(s): Sal Golub (USA) Bruce Robinson (USA) Lead Organizer: Add'l Organizer(s): Panel Reporter: Paper Reviewer: Harry Babad (USA) John Tseng (USA) Roger Nelson (USA) Harry Babad (USA) Panel Report At the end of this paper session, an audience discussion will commence on Spent (and Used) Nuclear Fuel (SNF/UNF) disposal. The discussion will include the technical, institutional, as well as broader political issues associated with expansion of nuclear power by solving the SNF/UNF waste disposal issue. This is the merging of Session 101 panel with this session. Moderating the session with the audience will be Robert Edmonds, AREVA. 1

2 4.1 Order Paper Title 1 Introspective Examination of the Issues Associated with the Nuclear Waste Disposal Confidence Situation Donald Vieth, Retired/DOE/NVOO Project Manager for Yucca Mountain (USA); Michael Voegele, Consultant (USA) 2 Restart of the Yucca Mountain License Application Review Directed by the US Court of Appeals for the District of Columbia Michael Voegele, Consultant (USA); Darrell Lacy, Nye Cty Nuclear Waste Repository Project (USA); Joseph Ziegler, Nye Cty Nuclear Waste Repository Project (USA) 3 Resuming Yucca Mountain Licensing in a Post-Blue Ribbon Commission World Rod McCullum, NEI (USA); Paul Seidler, Retired (USA) 4 Nevada and New Mexico: Two Particularly Promising States for HLW Repositories Leif Eriksson, Nuclear Waste Dispositions (USA); George Dials, B&W Conversion Services (USA) 2

3 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. ABSTRACT Nevada and New Mexico: Two Particularly Promising States for HLW Repositories George E. Dials* and Leif G. Eriksson** * President, B&W Conversion Services LLC, Lexington, Kentucky 40513, USA. ** Principal Consultant, Nuclear Waste Dispositions, Winter Park, Florida 32789, USA. Based upon active involvement and monitoring of nuclear waste management programs in the USA and abroad since 1973, the authors contend the long-term public health and national security interests of the nation and its residents can best be served by promptly pursuing dual paths in Nevada and New Mexico. Majority acceptance of nuclear facilities by neighboring residents/parties is the only equitable way sustainable progress can be achieved in handling nuclear waste. Based on the historical record, public acceptance levels fluctuate with time, as do the objectivity and credibility of related reports of acceptance. Several counties in Nevada supported the selection and evaluation of the Yucca Mountain site until 1987, and its host community, Nye County, still supports it. Contingent upon a favorable ruling by the NRC on the 2008 Yucca Mountain Project SNF/HLW repository construction license application and the establishment of an implementing organization with credible leadership, we advocate that residential opinions in all counties in Nevada be verified by a statewide referendum. In the meantime, New Mexico continues to be the optimal region to explore alternative sites. INTRODUCTION The more than 55-year-long [1] unsuccessful and costly search in the USA for a safe and secure deepgeological repository for disposal of long-lived highly-radioactive waste (HLW) 1 [2,3], schematically illustrated in Figures 1-4, was stopped in early 2010 by the Obama Administration (the Administration) [4]. At that time, the U.S. Nuclear Regulatory Commission (NRC) was reviewing the U.S. Department of Energy s (DOE s) June 2008 construction license application (CLA) for a deep geological, manmade/mined repository for up to 70,000 metric tons (MT) of heavy metals or an equivalent amount of uranium, both referred to herein as HLW, 1 at the Yucca Mountain Project (YMP) site in Nevada [5]. The legality of this action by the Administration was promptly challenged, but pending the related rulings by the U.S. Court of Appeals for the District of Columbia Circuit (the Court), the Administration continued to consider the YMP HLW repository not workable and pursued other HLW storage and disposal solutions. In January 2013, the Administration presented a new framework strategy for the management and disposal of used nuclear fuel (UNF) and HLW in the USA [6] for consideration by the U.S. Congress that projected the alternate HLW repository would open by This framework was specified in the January 2012 report of the Blue Ribbon Commission on America's Nuclear Future (BRC) [7]. In August 2013, the Court ruled that neither the Administration nor any of its federal agencies had the legal authority to stop the Yucca Mountain program without Congressional consent [8]. Although this ruling meant that the evaluation of the YMP site could and should proceed without undue delay, the existing evaluation funds were limited to about 11 million U.S. dollars ($11 M). At the end of 2013, the YMP HLW disposal program remains at a standstill pending Congressional action followed by enabling legislation. 1 As used in this document, the term/acronym HLW includes UNF, SNF, and HLW. It is also often used synonymously with the expression the back end of the nuclear fuel cycle. 1

4 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. Fig. 1. U.S. map showing sites, areas, and states considered during the past 30 years for hosting a HLW repository. (Although seven past rock salt sites are shown, i.e., Davis Canyon, Lavender Canyon, Deaf Smith Canyon, Swisher Site, Vacherie Dome, Richton (dome), and Cypress Creek Dome, the US s abundant rock-salt deposits are not shown. They are shown in Figure 2. Fig. 2. Locations, areas, and regions with thick rock-salt deposits in the USA. WIPP denotes the location of the Waste Isolation Pilot Plant deep geological repository for long-lived, transuranic, radioactive waste (TRUW) schematically illustrated on Figure 4 that opened in March

5 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. Fig. 3. Cutaway image of Yucca Mountain, its sequence of effusive-volcanic-rock layers, and the planned network of repository tunnels. The existing U-shaped access/exit tunnels and their adjoining test rooms/niches were closed in (Source: U.S. Department of Energy, 2010.) Fig. 4. Schematic illustrations of the 41 km 2 area and the underlying 1,830-m-deep portion of the geological setting at the WIPP site set-aside from public access (= controlled area ) to the left, and the 2012 layout of the WIPP TRUW repository and its adjoining URL, the North Experimental Area, and the stratigraphy at the WIPP site (the numbers shown under each named unit is its vertical thickness) to the right. The easternmost four panels are referred to as panels 1-4 and the westernmost panels are referred to as panels 5-8. The 2012 repository layout shown here has since been modified with panels located south (to the right) of panels 5 and 8. Based on statements made by the majority leader of the Senate after the August 2013 Court ruling, the Administration still opposes the continued evaluation of the YMP site. In our opinion, abandoning the YMP site extends the potential radiation exposure of 150 million people residing within 50 miles of the 3

6 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. 131 sites in 39 states shown in Figure 5. Of these 131 sites, some are currently filled to or close to capacity and present an actual or perceived adverse health effect from HLW for at least another 20 years. Weighing this exposure against fully evaluating a remote and subterranean site surrounded by fewer than 50,000 people within an 80-km (50-mile) radius, that has been studied for two decades at a financial investment in excess of $7 billion (B), is, in our opinion, neither rational environmental stewardship nor effective governance. Fig. 5. Schematic illustration of the 131 sites in 39 states storing HLW in January This paper summarizes the status of HLW management in the USA at the end of 2013, highlights some of the related major issues, and then concisely describes and discusses promising roads forward. Although considerable attention is given to the Administration in this paper, the reader should be aware that the failure to comply with the laws pertaining to the repository dates back to 1 February 1998, predating the Administration by more than 10 years. The information presented herein includes only a fraction of the available information supporting our conclusions. Data sources in the REFERENCE section provide links to other historical material. BACKGROUND Two rulings by the US Court of Appeals for the District of Columbia Circuit (the Court) in the second half of 2013 set the stage for the current status and the pending progression of the USA s HLW- 4

7 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. management program. In August 2013, the Court ruled that the Administration did not have the statutory authority to unilaterally stop the YMP HLW repository project and directed the Secretary of Energy and the NRC to promptly revive the evaluation of the YMP HLW repository [8]. By law, the evaluation of the YMP site must continue until existing laws for HLW disposition are either amended or replaced. However, the NRC does not have adequate funds for completing its review of the 2008 CLA. Although the August 2013 court ruling does not apply to the new strategy presented by the Administration in January 2013 for the management of the back end of the nuclear fuel cycle [6], both the implementation of this strategy and the continued evaluation of the YMP site require enabling legislation. At the end of 2013, the USA s HLW management program remains at a standstill until the enabling legislation for either or both of the YMP the 2013 strategy is enacted. The November 2013 Court ruling awarded $ 350 M to three nuclear utilities due to the DOE s inability to provide a central storage or disposal facility for their HLW between 2002 and 2008 [9]. It also directed the Secretary of Energy to seek Congressional approval for utilities to defer payment of the annual $ 750 M dollars into the Nuclear Waste Fund (NWF) until the DOE has a viable HLW disposition solution for commercial HLW. DISCUSSION TOPICS Consequences of Abandoning the YMP site Abandoning the YMP repository before its performance, safety and risks have been credibly established by the NRC will delay the opening of the US s first HLW repository at least another 20 years. The most apparent related adverse consequences are: The extended time radiation risks will be imposed on the 150 million residents within 80 km (50) miles of existing nuclear power plant used fuel basins. The multi-billion dollar increase in the total amount of the annual breach-of-standard-contract payments and awards due the nuclear utilities. The related charges to taxpayers and utility payers for the breach of these contracts. The lack of contributions to the Nuclear Waste Fund (NWF). The loss of a multi-billion dollar investment in research and construction. The lost opportunity of permanently closing an unused but existing facility. The negative impact on nuclear energy growth. The increased open access to HLW by terrorists. Increased charges in the future for consent-based approval of new facilities and for their construction. Congressional Action(s) It is very unlikely that either the Senate or the House of Representatives will be able to or is interested in finding the time to agree on enabling legislation and then obtain the President s enacting signature to proceed with any of the paths proposed by the Administration. Thus, the enabling legislation for the 2013 strategy and the funds required for the NRC s CLA review may not be enacted until late 2014, at the earliest. Another reason for our pessimistic view is the fact that the existing HLW program has been in violation of the 1992 Act [2], as amended [3], since 1 February 1998, but Congress has failed to address this violation during the past 14 years. Monetarily, early action in the present saves funding in the future. For the purposes of looking forward, we assumed that both the 2013 strategy and the YMP program will be fully funded no later than in Both strategies are required because: 5

8 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. While HLW can be reduced in volume, there will still be residual HLW that must be contained and isolated from humans and environments until it is rendered harmless. Current regulations put this range somewhere between 10,000 and 1,000,000 years. The very large number of current HLW localized storage sites are challenging and expensive to safeguard and more vulnerable to human intrusion than a deep geological repository. Safe and secure disposal of HLW is a government obligation that shall be executed without undue delay, as noted in the Joint Convention [10]. Consent-based Siting of Nuclear Facilities in the USA and Abroad The 2013 strategy introduced the concept of consent-based siting for the nation s future HLW storage and disposal facilities. Although this concept was attributed to the recommendations presented by the BRC in January 2012 [7], it had previously been both successfully and unsuccessfully applied in the US and abroad since the early 1970 s and 1980 s. The global historical record for the siting of facilities shows that majority consent has gradually evolved into a fundamental, challenging, integral component of defensible societal decision-making to achieve public and political support. The term majority can be readily defined, whereas the term consent is imprecise and nebulous. As elaborated upon in a WM2013 paper [11], one approach for identifying the groups from which consent should be sought is to reserve it for the individuals residing in the areas directly affected by the radiation risks imposed by the proposed nuclear facility. Opinions expressed by people and parties not physically exposed to the potential radiation risk should not be allowed to skew the decision-making process. Some elected local and state officials in Nevada, including the Majority Leader of the Senate, are not in favor of the YMP HLW-repository. To the best of our knowledge, the majority opinion of the residents in Nevada has not yet been established in a credible manner. Consequently, in the event the NRC rules that the YMP HLW repository meets all applicable regulations, an acceptance referendum could be conducted in Nevada to establish the related actual opinions in each county. The WIPP repository success in New Mexico is attributable to and still benefits from strong local acceptance; the opposite may be said about the YMP site. We suggest that the following two-step approach [11] be used to more credibly demonstrate acceptance and support among affected parties at both county and state levels in Nevada and other candidate disposition facility states: 1. Identify the affected counties and states by using either a conservative, scoping, repositoryperformance/safety assessment (P/SA) or a defensible, preliminary/initial, stand-off distance from the perimeter of the proposed site pending periodically updated performance/safety assessments (P/SAs). 2. Conduct a state-wide referendum in the affected state(s) and then evaluate them by county, with priority given to the facility-host counties. We also suggest a distinction between states and counties affected by the main facility and those affected by the related radioactive-waste transportation [11]. This binary consensus-establishing approach needs to be further refined based on the type of nuclear facility considered and its related infrastructure and operations. Pending the development of quantitative consent-based siting criteria, we strongly advise against abandoning the YMP HLW repository for any other reason than unacceptable radiation risks to current and future generations and environments, because: Consent is a stakeholder-appealing, qualitative concept that, based on the historical record, will change with time. 6

9 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. Majority-opinion in Nevada remains to be credibly verified by a state-referendum contingent upon and subsequent to a favorable ruling by the NRC on the 2008 CLA [5]. The YM HLW repository could advance the opening of the nation s first HLW repository by up to 20 years. Aborting the YMP repository after an investment of more than 35 years and $7 B misrepresents the state-of-the-art repository sciences expertise available in the USA; undermines the future of nuclear energy; and sets the USA.s repository program back at least 20 years. Also, as emphasized in the underpinnings of the 2013 strategy [6], the 2012 BRC report [7], and in the Joint Convention [10] and its predecessor and related Conventions, to which the USA is a signatory, the necessary time for a new HLW repository in the USA could be shortened by: 1) Early identification of areas in the contiguous US with both long-standing nuclear cultures and adequate (large) volumes of HLW-repository host rocks with already established comprehensive domestic and/or foreign repository sciences expertise and databases; and 2) Co-locating the HLW-storage and disposal facilities. Siting of Deep Geological Repositories in the USA and Abroad In the event another repository cannot be located in host rock similar to that at the YMP site (unsaturated welded tuff), other potentially suitable host-rock types would have to be pursued. Repository sciences and engineering knowledge cultivated over the past 25 years at the YMP site may not be readily transferable to other rock types. Whereas no other nation has pursued effusive volcanic rock as the host rock for a HLW repository, they have developed the current state-of-the-art repository sciences and engineering for other HLW repository host rocks. For example, France and Switzerland have evaluated argillites/mudstones, Finland and Sweden have evaluated igneous/crystalline rocks, and Germany and the US have evaluated rock salt as repository host rocks since the 1970 s. Promptly identifying and adopting select elements of other national HLW repository programs embody clear promises of expediting the development and increasing public confidence in a new HLW disposal site/concept [12-14]. However, in terms of time saving, the most promising paths forward in the USA are still tuff, i.e., the YMP site, and rock salt. The Yucca Mountain Site The Administration has claimed since February 2009, that the YMP site is not workable [4]. It has taken several actions since then designed to prevent its development. Two of these actions were the creation of the BRC in 2010 and the new strategy which it presented on 11 January 2013 [6]. However, the 2013 strategy did not recognize any of the following YMP site attributes: First and foremost, its existence. The advanced development stage of its HLW repository. The long-term willingness of residents of the host county to support the HLW repository. The inherent schedule, cost, and national security benefits of the YMP site. The YMP site is still the only current legal option in the USA for disposal of HLW. A statewide referendum in Nevada, as outlined in the preceding text, would provide an excellent opportunity to credibly determine on a county basis whether or not the hosting of the YMP HLW repository is acceptable to its neighboring residents. We believe it is financially irresponsible to abandon the YMP HLW repository unless it cannot meet licensing regulations or imposes undue burdens on the local population. Again, the USA s HLW stockpiles will be on the order of 100,000 MT by 2025 and 146,000 MT by Although proposals have been made to expand the YMP repository capacity [15], we do not believe this 7

10 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. to be possible due to existing geological constraints at the YMP site for the current HLW-disposal concept. Furthermore, the suitability of the YMP site and the radiation risks of its proposed 70,000 MT HLW repository still have to be fully evaluated by the NRC. We thus strongly advocate an all of the above approach that would consider both the YMP site and other sites to ensure adequate and timelyavailable domestic HLW-disposal capacity through 2040 and, preferably, beyond. The YMP site also provides a very promising locale for a surface, near-surface or underground HLW storage facility. For example, the existing ingress and egress tunnels and sequence of volcanic welded rocks could be used to expedite the development of an underground, industrial-scale, HLW storage facility adjacent to the repository. This configuration would drastically reduce transportation distances and related radiation and proliferation risks. Or, the storage facility could be adjacent to the repository patterned after the highly-secure Swedish central SNF storage (Clab) facility/concept shown in Figure 6, where there is only one common point for both ingress and egress; and inadvertently-released airborne radioisotopes would be contained underground. Fig. 6. Schematic illustration of the Swedish Central Storage Facility (Clab) for SNF, which is to be colocated (Clink) with the Encapsulation Facility (Inka). (Courtesy of SKB, The Waste Isolation Pilot Plant Site and Beyond In 1972, politicians and businesspeople in New Mexico invited the DOE to evaluate the suitability of New Mexico s vast rock-salt deposits for safe and secure disposal of HLW. The characterization and evaluation of the WIPP site (Figures 3 and 4) then commenced in In 1975, Sandia National Laboratories (SNL) designed and conducted comprehensive surface-based site characterization studies followed by full-scale, underground, in-situ tests for TRUW and HLW disposal. At that time, the master plan was to dispose of long-lived, TRUW ~650 m below the ground surface and HLW ~100 m deeper in 8

11 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. the 200+-million-year-old, 600-m-thick Salado Formation (rock-salt). The disposal of HLW was subsequently precluded by congressional legislation and resultant DOE policy. The WIPP repository was licensed by the EPA in May 1998 for safe disposal of 175,584 m 3 of TRUW, or a maximum amount of curies. However, it did not open for disposal operations until 1999 due to a legal challenge. It is currently in an advanced and mature operations stage. The layout has been redesigned and new panels are being planned. Additional rock-salt panels could be added in the future [16,17], provided they do not impact the post-closure P/SAs to the extent that the WIPP repository fails to comply with applicable regulations. As mentioned above, the WIPP site was once considered for safe and secure disposal of both HLW and TRUW, and related, full-scale, in-situ tests were thus conducted well into the last half of 1980 in the North Experimental Facility (Figure 5). These tests, augmented by off-site in-situ and laboratory tests and analyses conducted in the USA and in Germany during the past 30 years [e.g., 18], have repeatedly and conclusively corroborated the 1957 National Academy of Sciences (NAS) conclusions that salt is a very suitable host rock for containment and isolation of HLW [1]. However, although the current WIPP repository layout can be expanded both horizontally and vertically, expanding the mission of WIPP to accommodate on-site storage and disposal of a large quantity of HLW may not be an attractive or even viable solution for the following reasons: 1. In 1993, the EPA was appointed the only federal regulator for the safe and secure management and disposal of TRUW at the WIPP site and the NRC is currently not involved in the on-site TRUW management and disposal operations. In the event the WIPP site was considered again for safe and secure disposal of HLW, both the current regulatory oversight and applicable federal regulations would have to be modified, because the NRC presently has the national charter to regulate and oversee the safe and secure management and disposal of all HLW. 2. The resolution of this regulator issue could be time consuming, and could adversely affect the ongoing TRUW-disposal operations. We are, however, convinced that New Mexico is an exceptionally promising locale for both HLW-storage and -disposal facilities, but the anticipated adverse impacts of necessary regulatory oversight change diminish and partially negate the attractiveness of the WIPP site. The more politically palatable and less time-consuming option would be to limit the expansion of the WIPP mission to defense-generated HLW (DHLW), because, scientifically speaking, its characteristics are much more benign and its volume is only a fraction of the commercially-generated HLW (CHLW) volume. Furthermore, both TRUW and DHLW have the same generator, the US government. SUMMARY OF OBSERVATIONS, CONLUSIONS AND RECOMMENDATIONS One HLW repository will not meet the USA s HLW disposal needs through the first half of We thus advocate/recommend that both the YMP site evaluation and the BRC s 2013 strategy be promptly pursued. The timing of legalities required for progress and the related allocation of financial resources, as well as the establishment of a credible implementing entity, will govern the rate of progress and, perhaps, even the outcome. Timely progress remains of utmost importance to national security, public health, and the collection of fees imposed on the nation s nuclear utility-rate payers. Indeed, a realistic HLW disposal solution has been one of the cornerstones of the NRC s Nuclear Waste Confidence rule for more than 30 years, and absent one, the future of nuclear energy in the USA and perhaps abroad is also at risk. We also believe that if the NRC was promptly given adequate financial resources to review the CLA without interruption and then approved it no later than in 2015, the YM repository could open in the second half of This also requires an implementing organization with adequate management 9

12 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. expertise and financial resources. The nation s first HLW repository could even open in the first half of 2020 if the disposition paths for CHLW and DHLW were separated and the WIPP mission was expanded to include DHLW. However, the DHLW only constitutes about 10% of the nation s current HLW, so at least one additional HLW repository would still be needed for the CHLW. The major hurdle cited by the Administration since 2009 has been the very strong public opposition in Nevada. However, to the best of our knowledge, neither the magnitude nor physical proximity of this opposition has been credibly polled or documented. Anecdotally, the residents and elected representatives of the host county for the YMP site have repeatedly expressed their willingness to host it for more than a decade. We are guardedly optimistic that if the CLA meets the applicable regulations, the site would once again be able to gain majority support by the residents in Nevada. We endorse and fully support the consent-based, nuclear facility hosting concept proposed by the 2013 strategy, the BRC, and successfully employed at WIPP and in Finland, France, and Sweden for more than 20 years. However this concept needs to be defined quantitatively before implementation, as does the political robustness of the affected community and state s veto right. The 2013 strategy projects the USA s first new multi-user HLW storage and new HLW repository to open by 2025 and by 2048, respectively [6]. Both of these opening milestones are achievable, provided the implementing HLW disposition organization benefits from capable leadership, stable funding, and political support all the way up to and including the Secretary of Energy. At the end of 2013, the probability for achieving and advancing these two milestones is particularly promising in Nevada and New Mexico. The primary positive attributes in Nevada are: The huge, already guarded, surface area available at and adjacent to the YMP site. The very-advanced stage of its candidate HLW repository. The broad public support in the country hosting the site. The primary positive attributes in New Mexico are: Long-standing, strongly-expressed, interest in and willingness by local communities, e.g., Eddy County and Lea County, and the state government, to host them both. Proven track record of having supported WIPP since Familiarity with the successful siting and development of a deep geological repository in rock salt that has operated safely and been re-certified three times since March Abundant, thick and laterally-extensive, tectonically-stable, 200+-million-year-old, rock-salt formations. Abundant, resident state-of-the-art repository science experts and rock salt databases, as well as long-standing, professional relationships with rock-salt experts and data in Germany. In closing, we strongly recommend the paths forward for the two HLW repositories and the nation s first central HLW storage facility be closely integrated and expeditiously pursued in a manner similar to how it successfully evolved in Finland and Sweden. Co-locating HLW storage and disposal facilities offers significant time and cost savings. REFERENCES 1. National Academy of Sciences National Research Council (NAS-NRC), Division of Earth Sciences, Committee on Waste Disposal, 1957, The Disposal of Radioactive Waste on Land, National Academy of Sciences National Research Council, Washington, D.C., USA, Publication 519, September US Congress, 1983, Public Law , The Nuclear Waste Policy Act of 1982, signed by the President on January 7,

13 WM2014 Conference, March 2 6, 2014, Phoenix, Arizona, USA. 3. US Congress, 1987, Public Law , The Nuclear Waste Policy Amendments Act of 1987, signed by the President on December 22, The Executive Office of the President Office of Management and Budget (OMB), 2009, A New Era of Responsibilities: Renewing America s Promise, U.S. Government Printing Office, February US Department of Energy, 2008, Yucca Mountain Repository License Application for Construction Authorization, June 3, 2008 ( 6. US Department of Energy, 2013, Strategy for the Management and Disposal of Used Nuclear Fuel and High-level Radioactive Waste, January 11, Blue Ribbon Commission on America s Nuclear Future, 2012, Report to the Secretary of Energy, 26 January 2012 ( 8. United States Court of Appeals for the District of Columbia Circuit, 2013, On Petition for Writ of Mandamus filed by Aiken County et al., No , August 13, United States Court of Appeals for the District of Columbia Circuit, 2013, On Petitions for Review of Final Actions or Failures to Act by the United States Department of Energy, No (C0nsolidated with ) November 19, International Atomic Energy Agency (IAEA), 1997, Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Joint Convention), INFCIRC 546, International Atomic Energy Agency, 24 December Eriksson, L.G., Dials, G.E., and Critz, C.H., 2013, Societal-Equity-Enhancing Criteria and Facility- Host Incentives Supporting Five Key Elements in the January 2012 Blue Ribbon Commission Report. Proceedings from the Waste Management 2013 (WM 2013) Conference, Phoenix, Arizona, USA, February 24 28, Eriksson, L.G., 2010, Spent Fuel Disposal Success vs. Failure - A Comparison of the Swedish and U.S. Repository Programs. Radwaste Solutions, Jan./Feb. 2010, pp Eriksson, L.G., 2010, A Smörgåsbord of Lessons Learned During 32 Years of Siting and Developing Deep Geological Disposal Systems for Long-Lived, Highly-Radioactive, Wastes. Proceedings from the Waste Management 2010 (WM2010) Conference, Phoenix, Arizona, USA, March 7-11, Eriksson, L.G. and Dials, G.E., 2012, The Waste Isolation Pilot Plant Deep Geological Repository: A Domestic and Global Blueprint for Safe Disposal of High-Level Radioactive Waste. Proceedings from the Waste Management 2012 (WM 2012) Conference, Phoenix, Arizona, USA, February 26 March 1, US Secretary of Energy, 2008, Report to the President and the Congress by the Secretary of Energy on the Need for a Second Repository, U.S. Department of Energy, Office of Civilian Radioactive Waste Management (DOE/RW-0595), December Dials, G.E. and Eriksson, L.G., 2008, WIPP A Safely Operating, Expandable, Proof of Principle for Deep Geological Disposal of Long-Lived Radioactive Materials, Proceedings of the 12 th International High-Level Radioactive Waste Management (IHLW) Conference, Las Vegas, Nevada, USA, September 7-11, 2008, pp Eriksson, L.G., 2000, The Waste Isolation Pilot Plant Mission: Could It Be Expanded To Solve Other National Radioactive Waste Disposal Needs? Submitted to the Waste Management 2000 (WM00) Conference, Tucson, Arizona, USA, February 24-28, Hansen, F.D. and Leigh, C.D., 2011, Salt Disposal of Heat-Generating Nuclear Waste, Sandia National Laboratories, Albuquerque, New Mexico, and Livermore, California, SAND , January

14 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA Resuming Yucca Mountain Licensing in a Post-Blue Ribbon Commission World ABSTRACT Rod McCullum, Nuclear Energy Institute, 1776 I St. F St. NW, Suite 1100, Washington, DC Paul Seidler It has been over 3 years since the Department of Energy (DOE) terminated the Yucca Mountain project. To many, this has been an agonizingly long period. But in geologic time, it is merely the blink of an eye. An August 2013 ruling by the US Court of Appeals has raised the intriguing possibility that the world s eyes might again be coming open to look anew at the potential for disposal of used nuclear fuel and other high level radioactive wastes in the Nevada desert. In the wake of the Court decision, proponents of the Yucca Mountain project have called for the resumption of the Nuclear Regulatory Commission (NRC) licensing process. However, there is considerable uncertainty as to just how this could be done. The NRC appears to have sufficient funds to complete and publish its final Safety Evaluation Report (SER) documenting the regulatory conclusions of NRC s technical staff. However, before a licensing decision can be reached, the second phase of the licensing process, involving the adjudication of nearly 300 contentions must also be completed. This is seen as likely to be time consuming and expensive as Yucca s opponents, most prominently the State of Nevada, vigorously pursue their contentions protracting the litigation beyond what Congress is likely to fund. Furthermore, an adversarial legal proceeding, in which DOE seeks to overcome the objections of the host State would appear to be entirely inconsistent with the Recommendations of the President s Blue Ribbon Commission for consent based repository siting. But what if these contentions could be treated as something more than just points of dispute? What if they could form a platform for defining research and development (R&D) programs to confirm long-term safety and improve the repository? In such a model, DOE and the intervening parties could negotiate settlements to many of the contentions by forging mutual commitments to R&D programs designed to further address the fundamental safety questions at issue in each dispute. If both parties to the settlements had the authority to judge the satisfactory completion of these R&D programs, the State of Nevada would have a much stronger role in assuring the safety of its citizens something that is very much needed for the process to achieve consent. NRC could proceed towards making its initial licensing determination an authorization to construct the repository while these R&D programs were underway. R&D program would then inform subsequent licensing decisions to receive and possess nuclear materials or to close the repository. NRC s existing regulations (10 CFR Part 63.21(c).16) already provide for such an approach, allowing for R&D programs to resolve safety questions, including a schedule indicating when these questions would be resolved. The current license application does not utilize this provision, instead including, as Chapter 3, only a placeholder stating that DOE pursuant to 10 CFR Part 63.21(c).16, has not identified any safety questions. However, taking a second look at 1

15 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA the safety questions embedded in the intervening parties licensing contentions could offer a better way forward. INTRODUCTION There has been longstanding scientific consensus that permanent disposal in a deep geologic repository represents the most appropriate and safest approach to the long term management of used nuclear fuel and other high level radioactive waste. Since 1957, when the National Academy of Sciences (NAS) concluded radioactive waste can be disposed of safely in a variety of ways and at a large number of sites in the United States [1], the nation has been actively working to develop a geologic repository to do this. These efforts began with the investigation of a salt site in Lyons, Kansas in the 1960s, progressed through the consideration of 9 sites in 6 states in the 1980s [2], and for the past 25 years have focused on the Yucca Mountain site in Nevada. During this time, mankind has sent a man to the moon, invented the personal computer, and refined digital technology to the point where the average teenager now has more computing power in the palm of his or her hands than the Apollo 11 astronauts had in their entire spaceship. So why, if all of this can be accomplished through continued advances in science, is something for which the science has been firmly established for so long been so hard to accomplish? While pointing to any single factor may be an oversimplification, the success with which repository opponents have been able to use political processes to delay and eventually stop proposed projects has certainly been a key factor. Upon observing this history of state and local government opposition, a 2012 study of the problem by the President s Blue Ribbon Commission America s Nuclear Future recommended a new consent-based approach to siting future nuclear waste management facilities. [3] The Blue Ribbon Commission (BRC) recommendations came in response to the Department of Energy s 2010 declaration that Developing a Repository at Yucca Mountain, Nevada is not a workable option [4]. Since then, policy-makers have been debating the topic of exactly how to launch a consent-based process to replace the Yucca Mountain option. Unfortunately, neither the BRC nor anyone else who has studied its recommendations has been able to come up with a well-defined process to accomplish this, hence the concept of precisely what is meant by consent remains elusive. DOE is currently focused on trying to embark on a path that will be governed by legally-binding agreements between the federal government and host jurisdictions [5]. DOE s current path appears to be based on the widely accepted belief that consent must be secured at the outset of the repository development process. But the experience at Yucca Mountain offers an interesting counter-example. In 1975 the Nevada State Legislature passed a resolution in supporting the storage and processing of used nuclear fuel in the vicinity of Yucca Mountain [6]. But over time things changed and Nevada s political leaders continued to shift towards ever more staunch opposition until they were eventually able to use their growing influence in national politics to gain DOE s 2010 reversal of course on the project. If there is anything that can be learned from this, it is perhaps it that consent may not be something that can be given or acquired at the beginning of a process. Lasting consent must be supported by actions that, over time earn and continually build trust. In this construct the building blocks of consent are found less in agreements signed at the beginning of repository development, but 2

16 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA more in the never ending work of establishing and maintaining confidence in the hearts and minds of those who are most concerned with the project s safety. And, if consent is, indeed, something that can be, and in fact must be, earned over time, then perhaps it is not too late for Yucca Mountain. BACKGROUND In 1983, the Nuclear Waste Policy Act (NWPA) [7] provided for the owners and operators of the United States commercial nuclear power plants to enter into contracts with the federal government for disposal of the used nuclear fuel arising from the operation of these plants. These contracts obligated the US Department of Energy (DOE) to provide disposal services to every one of the nation s commercial nuclear reactors and, even today, companies seeking to license new commercial nuclear plants are still entering into such agreements with DOE. In 1987, the NWPA was amended to focus DOE s disposal program solely on a proposed repository site at Yucca Mountain Nevada. In 2002, the Yucca Mountain Development Resolution (YMDR) [8] codified in federal law DOE s determination that the Yucca Mountain site was suitable for the development of a repository and directed the Department to proceed with the process outlined in the NWPA by which DOE would seek licenses from the US Nuclear Regulatory Commission. In accordance with the NWPA, the Nuclear Regulatory Commission (NRC) established regulations governing the Disposal of High-Level Radioactive Waste at Yucca Mountain, Nevada. In 2001, these regulations were promulgated as 10 CFR Part 63[9]. Under this regulation DOE would need to obtain three separate NRC approvals to develop the repository in stages a Construction Authorization, a License Amendment to Receive and Possess Nuclear Material at the Repository, and a License Amendment for Permanent Closure of the Repository. 10 CFR outlined requirements for DOE to submit a license application that would be reviewed in accordance with NRC s established licensing practices in two distinct phases a technical review by NRC staff which would culminate in the issuance of a Safety Evaluation Report (SER) and an adjudicatory phase wherein intervening parties could challenge the application and have their contentions heard before a three judge panel in a formal trial type proceeding before the Commission would reach a decision on whether or not to grant a Construction Authorization. This application would be amended and revisited by the Commission at each subsequent stage of the repository development process. Following enactment of the YMDR, DOE moved slowly to develop, and submit to NRC, the required license application. The Department experienced a number of internal delays and missed a promised December 2004 License Application submittal date by nearly 4 years. During this time DOE continued to engage NRC in pre-application dialogue. Several interested parties, followed this process closely in anticipation of eventual participation. Once the application [10] was filed in 2008, the process began moving forward on a much brisker schedule. By 2010 the first phase of the NRC review (staff technical review) was nearing completion and preparations for the second phase (adjudicatory proceedings) were well under way. But progress was disrupted when, in March of that year, DOE filed a motion to withdraw its license application [11]. While NRC s Atomic Safety and Licensing Board (ASLB) one of four three 3

17 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA judge panels that had been established to manage the adjudicatory phase of the process deliberated on whether or not the Department, in accordance with the NWPA, had the authority to withdraw, NRC staff continued their technical review. The first of 5 volumes of the SER was issued in August of 2010 [12] and the critically important volume 3 addressing the long-term (post-closure) safety of the repository was scheduled for publication in November of that year [13]. But even though the ASLB ruled on June 29, 2010 that DOE did not have the authority to withdraw [13], progress slowed while the Commission deliberated the question of whether or not to uphold the ASLB ruling and funding for the process was dialed back. The Commission was evenly divided on this question and unable to reach a decision. Eventually, citing a lack of funding, the Commissioners directed NRC staff to close out its technical review of the Yucca Mountain license application, and the Atomic Safety and Licensing Board to suspend its adjudicatory hearing on the application, by September 30, 2011 [14]. Figure 1 below depicts the timeline over which the Yucca Mountain licensing process progressed up to the point of termination. FIGURE 1 Yucca Mountain Licensing Process Timeline In looking back on the Yucca Mountain licensing process, and contemplating the prospect of restarting it, it is important to note the unusually high number of parties that would have been represented in the proceeding. Twelve parties originally sought intervention and submitted contentions in support of their petitions, two other parties sought participation as interested government parties only and did not file contentions. Table 3 below contains a list of these parties, the number of contentions they filed, and how these contentions initially fared with the Boards [15] and Commission [16]. By the summer of 2009, when the adjudicatory proceedings began in earnest, it had been determined that ten parties had standing (Caliente Hot Springs Resort was not admitted and the two potential parties seeking to represent the Timbisha Shoshone agreed to combine and represent the tribe as one party). This meant that when, on September 14 and 15 of 2009, a fourth Construction Authorization Board (CAB-04) convened a prehearing conference in Las Vegas to begin organizing discovery and early briefings in the proceeding, 14 parties were seated before the Board the ten intervening litigants, the two interested government parties, DOE, and NRC staff. 4

18 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA Party TABLE 1 Participants in the Yucca Mountain Licensing Process Contentions Admitted Appealed Upheld by Submitted by by NRC Commission Late Filed Contentions Boards staff State of Nevada State of California Clark County, NV Inyo County, CA NEI Nye County, NV Churchill, Esmeralda, Lander & Mineral Counties, (Four Counties), NV White Pine County, NV Timbisha Shoshone (nonprofit)* Timbisha Shoshone (Tribe)* Native Community Action Council Caliente Hot Springs Resort Lincoln County, NV Lincoln and Eureka counties participated as interested Eureka County, NV government parties only and did not submit any contentions TOTAL *Although these entities initially filed separate petitions, they were eventually consolidated into one The abrupt termination of the Yucca Mountain licensing process left unanswered the question of how the litigation of these contentions would proceed. NRC had been making every effort to reach a licensing decision on the 3 year schedule mandated by the NWPA. Although the Act did provide for NRC to take a fourth year if Congress was notified, the agency was working hard to avoid this. By mid-2010, the staff technical review was essentially complete with the SER being published one chapter at a time. Also, four licensing boards had been established to manage the litigation of the large number of contentions. This comported with NRC s original plan to spit the allotted time in half, using the first 18 months for the staff technical review and the second 18 months for the adjudicatory process. NRC s licensing boards were working, to the extent funding allowed, to accomplish the completion of the second phase of the process in accordance with this plan. Before it was disrupted, the Yucca Mountain licensing process was a model of efficiency. But now, if the process were to resume, NRC would find itself almost 3 years behind schedule and facing a new set of challenges as the licensing boards would have to revisit these contentions against the backdrop of a world that has changed significantly since they were submitted. 5

19 WM2014 Conference, March 2-6, 2014, Phoenix, Arizona, USA THE POST-YUCCA ERA, WHAT CHANGED Following the termination of the Yucca Mountain project, events unfolded on two fronts in a manner that suggests two completely opposite paths for the future of the US repository program. First, the President established a Blue Ribbon Commission to recommend alternatives to Yucca Mountain and, second, the Courts took up litigation brought by supporters of the project challenging the authority of DOE and NRC to shut down the licensing process under the Nuclear Waste Policy Act. In January of 2012, the Blue Ribbon Commission (BRC) dismissed the Yucca Mountain program as the product of a policy that has been troubled for decades and has now all but completely broken down and concluded that the need for a new strategy is urgent [3]. The BRC s central recommendation was for a new consent-based approach to siting future storage and disposal facilities. Although the BRC did not attempt to define precisely how such a process would be implemented, this recommendation did prompt an immediate response from the Nevada County in which Yucca is located. On March 6, 2012, the Nye County Board of Commissioners wrote a letter to the Secretary of Energy stating Nye County, Nevada, hereby provides notice to you, the Secretary of Energy, that we consent to host the proposed repository at Yucca Mountain [17]. However, only 6 days later the State of Nevada countered with its Governor telling the Secretary that the State would oppose any attempt to resurrect Yucca Mountain [18]. Given this disagreement, there has been no attempt to align any restart of the Yucca Mountain licensing process with DOE s plans to implement the BRC s recommendations. While all of this was going on, the US Court of Appeals was carefully deliberating the challenges to the shutdown of the licensing process. On August 13, 2013 the Court ruled in favor of the Yucca Mountain supporters in a Writ of Mandamus ordering unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process [19]. NRC is now considering how to comply with this order. NRC staff, along with several of the intervening parties including NEI, has recommended to the Commission that NRC focus its remaining resources on completion of the SER. [20] Of course, with the Executive and Judicial branches of the Federal Government now sharply divided on the question of whether or not to proceed with the Yucca Mountain licensing process, the issue of remaining resources now calls attention on the question of whether or not the Legislative branch would fund the process. NRC staff has indicated that the agency has sufficient reserve funds to complete the SER [20], however, for the adjudicatory phase of the process to resume in earnest Congress would have to provide additional appropriations. And here, again, we find ourselves pointed in two completely different and opposing directions. The House of Representatives strongly supports continued progress at Yucca Mountain and has passed several resolutions to restore funding by wide margins. However, the Senate, at the direction of Majority Leader Harry Reid of Nevada a staunch Yucca opponent has consistently refused to allow any funding to be appropriated. 6