Hope Is Not Enough: The Path to Waste Confidence

Cornelius Milmoe /

From Yucca Mountain to reactor design certifications and post-Fukushima reforms, incoming Nuclear Regulatory Commission (NRC) chair Allison Macfarlane has a multitude of issues before her. One of the most critical and least understood is the “waste confidence” mess caused by the Obama Administration’s nuclear waste policies.

A 1979 court decision requires the NRC to provide “reasonable assurances” that offsite nuclear waste storage will be available when reactor licenses expire and that nuclear waste can be stored safely onsite after license expiration if offsite storage is not available.

Since then, the NRC has been able to avoid studying the long-term impact of onsite waste storage by periodically making a “waste confidence determination” (WCD) that provided the two assurances. The offsite storage assurance became easier in 1982, when the Nuclear Waste Policy Act (NWPA) transferred nuclear waste disposal responsibility from waste producers to the federal government. The WCD provides assurance that onsite storage will be safe for 30 years after license expiration.

In 2010, then-chairman Gregory Jaczko pushed the NRC to “update” the WCD to reflect the Administration’s decision to abandon the NWPA-mandated Yucca waste repository. The WCD “update” assumed that Yucca would not be built and expressed doubt about the time needed to bring about the necessary societal and political acceptance for another repository. Still, it determined that a repository would be available “when necessary.”

Four states appealed the update, arguing that the NRC’s “when necessary” determination failed to define the term necessary in any meaningful way. On June 8, the U.S. Court of Appeals rejected the NRC’s update, saying:

The Commission apparently has no long term plan other than hoping for a geologic repository. If the government continues to fail in its quest to establish one, then [nuclear waste] will seemingly be stored on site at nuclear plants on a permanent basis.

The ruling means that hope is not enough to provide reasonable assurances of waste removal, so the NRC must conduct impact studies for new reactor licenses.

Moving forward, the NRC has several options to respond to the court’s remand:

Cornelius Milmoe is a lawyer and nuclear energy expert who has worked in the government and private sector.