New U.S. Nuclear Waste Policy May Be Illegal: GAO

In January The U.S. Department of Energy adopted a new policy for the storage of nuclear waste, embarking on a plan to build two new interim storage sites and a new permanent storage facility. On Thursday, a General Accounting Office official told Congress this policy may be illegal.
"First, DOE’s statutory authority to develop interim storage is uncertain," said Frank Rusco, Director of GAO's Natural Resources and Environment office, in testimony before the Senate Subcommittee on Energy and Water Development.
"Provisions in the Nuclear Waste Policy Act of 1982, as amended, that allow DOE to arrange for centralized interim storage have either expired or are unusable because they are tied to milestones in repository development that have not been met."
Rusco's testimony lends credence to critics who say DOE really has no intention of following the policy, but is using it to fend off lawsuits from reactor operators and stall until better storage and recycling technologies develop.
And the government may have tipped its hand at times by emphasizing that the nation's 70,000 metric tons of spent nuclear fuel is perfectly safe where it is—in wet pools and dry casks dispersed at reactor sites across the country.
In his testimony, Rusco acknowledges that the new policy, if it were legal, would help protect the government from lawsuits because it calls for an interim storage facility. It "would allow DOE to begin to address the taxpayer financial liabilities stemming from industry lawsuits," he said.
And those financial liabilities are not small. Because the U.S. did not begin collecting spent nuclear fuel from reactor sites in 1998, as required in the Nuclear Waste Policy Act, the government is currently liable for $2.6 billion, according to a November DOE estimate, and "future liabilities are now approximately $19.7 billion for a total of about $22.3 billion."
But a lack of legal authority is not the only obstacle impeding the new policy, according to Rusco:
Local and State Opposition: "Even if a community might be willing to host such a facility, finding a state that would be willing to host it could be extremely challenging, particularly since some states have voiced concerns that a centralized interim facility could become a de facto permanent disposal site," Rusco said. The Western Governor's Association, representing 19 Western states and 3 pacific islands, laid down the gauntlet in 2011 when it passed a resolution insisting that no waste facility may be opened in a Western state without the consent of the governor.
Transportation: The new policy means waste has to be transported at least twice—once to an interim storage facility, and then again to the permanent one that the policy calls for in 2048. Transportation plans are expected to take a decade to finalize. And much nuclear waste is not fit for transportation. Because utilities have used dry-cask storage to maximize storage capacity, about 70 percent of the waste in dry cask storage is too hot to transport.
Rusco also cast doubt on DOE's prediction that it could site, license, construct and open an interim storage site within six years.
Ostensibly, DOE intends the interim sites to accept waste, and fend off lawsuits from utilities, while DOE sites and builds a new permanent storage facility to open around 2048. But a new permanent facility may also be illegal, Rusco said.
"It is uncertain what legislative changes might be needed, if any, in part because the Nuclear Waste Policy Act, as amended, directs DOE to terminate all site specific activities at candidate sites other than Yucca Mountain."
And DOE may lose its funding mechanism for waste storage. Utilities pay one-tenth of a cent per kilowatt hour of electricity they generate into the Nuclear Waste Fund, which holds about $29 billion right now and grows by $1 billion each year from new payments and interest.
But utilities are only required to pay into the fund as long as they generate electricity from nuclear power.
"Two utilities have announced plans—one in 2010 and the other in 2013—to shut down two reactor sites prior to their license expiration," Rusco said. "As reactors are retired, they will need to be replaced by new reactors paying into the fund, or according to DOE officials, the fund might be drawn down faster than it can be replenished when developing a new repository."
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