Yucca Mountain and the Nuclear Waste Promise Washington Broke

Suppose you rented a storage unit and paid the monthly fee for thirty years. Every month the check cleared. Then, when you finally went to retrieve your belongings, the manager told you that the unit had never been built, the site had not been picked, the lawsuit over the site was somewhere in the courts, and by the way he would be keeping the money. You would not call that a storage company. You would call a lawyer.

That, in a sentence, is the story of the nation's used nuclear fuel. For decades, people who bought electricity from a nuclear plant paid a federal fee on the promise that Washington would haul the spent fuel away. Washington did not haul it away. The fuel sits where it was made, at plants in states across the country, in pools and in steel-and-concrete casks, waiting for a destination the government was contractually bound to provide.

This is a story about a government failing to keep a contract. I think it should bother every conservative, and I think the lessons go well past nuclear power.

What Congress promised in 1982

The Nuclear Waste Policy Act was passed by Congress in December 1982 and signed by President Reagan on January 7, 1983. The idea was simple. The federal government would take responsibility for permanent disposal of used fuel from civilian reactors. It would find and build a deep geologic repository. The Department of Energy would run the program.

To pay for it, the law set up the Nuclear Waste Fund, financed by a fee on nuclear-generated electricity of one mill, or one-tenth of a cent, per kilowatt-hour. And it directed DOE to sign standard contracts with the utilities. In those contracts, the government agreed to start accepting used fuel beginning on January 31, 1998.

Let me show you the arithmetic, because it is what makes this a ratepayer story and not a technical one. A mill is $0.001.

• A household that uses 10,000 kilowatt-hours in a year, all of it nuclear-generated (a hypothetical), pays 10,000 × $0.001 = $10 a year toward the fund.
• A 1,000-megawatt plant (also hypothetical) producing electricity at 90 percent of its full capacity makes 1,000,000 kilowatts × 8,760 hours in a year × 0.90 = 7,884,000,000 kilowatt-hours. At $0.001 each, that is $7,884,000 a year, or about $7.9 million, flowing from one plant's customers to the federal fund.

Over the years, the fund accumulated tens of billions of dollars, including interest. Those were real dollars from real electric bills. The money went into the federal Treasury's accounts, and Congress had to appropriate it before it could be spent, a detail that mattered later.

The 1987 amendments: one site, picked by Congress

The 1982 law envisioned a careful, multi-site selection process. That is not what happened. Congress changed the plan in the Nuclear Waste Policy Amendments Act of 1987. Instead of studying several candidate sites, it directed DOE to study one: Yucca Mountain, a ridge of volcanic rock in Nye County, Nevada, roughly 100 miles northwest of Las Vegas and next to the old Nevada Test Site.

Nevadans had a name for the law, and it was not flattering: the "Screw Nevada" bill. Think about how that looks from the Nevada side. The state with the smallest voice in Congress, relative to the big states that produced the waste, was told that it would host the nation's repository. The fix was in at the legislative level, not the scientific one.

Now, I want to be fair to the process that followed. DOE spent years and a great deal of money studying the mountain. The site is dry desert, far from major population centers, in a geologic setting that engineers thought could keep the waste isolated for a very long time. In February 2002, President George W. Bush recommended the site. Nevada exercised its right under the law to submit a notice of disapproval, the state's veto. Congress overrode it with a joint resolution, which the President signed on July 23, 2002. DOE filed its license application with the Nuclear Regulatory Commission in June 2008.

1998 comes and goes

On January 31, 1998, the government did not take a single used fuel assembly from a plant under the standard contracts. It could not. There was no repository and no interim storage facility. The program had missed its own deadline by a wide margin.

The utilities did what any party to a broken contract does. They went to court. In 1997, a year before the deadline, the D.C. Circuit had ruled in Northern States Power Co. v. Department of Energy that DOE had an unconditional obligation to start disposal by the 1998 date regardless of whether a repository was ready. DOE had argued that without a repository it had no duty. The court said the contract meant what it said.

When the deadline passed, utilities sued for breach in the Court of Federal Claims, seeking the cost of the extra storage they had been forced to build. They have won billions of dollars in damages and settlements over the years. And who pays those judgments? The taxpayer, through the Treasury's Judgment Fund.

Pause on that. The ratepayers paid once, through the fee. Now the taxpayers pay again, through the judgments. In a lot of cases they are the same people. A family that paid the fee in its power bill now pays a second time in its taxes for the government's failure to perform. If a private company did that to you, the attorney general would be on television.

The mountain is shut down by decision, not by law

In the years after the license application, the project met political resistance. The Obama administration moved in 2009 and 2010 to end the Yucca program, cut its funding, and in March 2010 DOE asked the NRC to withdraw the license application. A licensing board of the NRC refused to permit the withdrawal. The NRC itself then stopped work on the review, citing a lack of funds.

This is where the constitutional lesson comes in, and it is one I care about. The Nuclear Waste Policy Act is a law. Congress passed it, and the President signed it. It names Yucca Mountain. It directs the NRC to decide the application. A later administration may dislike the law. It may ask Congress to change it. But it is not free to ignore it.

In August 2013, in In re Aiken County, the D.C. Circuit made that point in plain terms. The court granted a writ of mandamus ordering the NRC to continue its review of the application using the money Congress had already appropriated. The reasoning was a basic separation-of-powers principle: the President and agencies must follow the laws as Congress wrote them, even if they disagree. It is the same principle that conservatives invoke when an executive agency stretches a statute to reach a policy it likes, and it cuts the same way when the policy the executive dislikes is one Congress already passed. A conservative who believes in the rule of law has to believe in it when it is inconvenient.

If you want to see how often this tension comes up, read Congress Should Write the Laws, and Other Radical Ideas From Article I.

The fee stops

A few months after it ordered the NRC back to work, the same court turned to the other half of the bargain. In November 2013, in a case brought by the National Association of Regulatory Utility Commissioners and others against DOE, the court held that DOE could not keep collecting the Nuclear Waste Fund fee without a proper accounting of whether the fee was justified given that the repository program was halted. DOE then set the fee at zero, effective May 2014.

So the record is this. The government collected the fee for more than thirty years. It did not meet its obligation to take the fuel. And a court told it to stop charging for a service it was not providing. That is not a close call.

Where the fuel sits now

Used fuel from a reactor is first stored under water in a pool at the plant, where the water cools it and shields the workers. After several years, it can be moved to dry cask storage, in which the fuel is sealed in steel canisters and placed in concrete or steel overpacks on a pad at the plant. Casks are passive: no pumps, no operators moving water.

Regulators have judged dry cask storage safe for long periods, and the NRC has issued findings supporting continued storage at plant sites well beyond the original license terms. I have no desire to alarm anyone about that. But nobody designed a plant to be a long-term warehouse. Those sites, in many states, were supposed to receive a fuel truck on a schedule. Instead they have become the de facto national repository, scattered across dozens of locations, many of them near rivers and lakes and population centers, because that is where reactors were built.

Even some plants that have closed still host used fuel, and the utility must keep staff, security and a license in place to watch over a few concrete pads. That is an expense the customers did not expect and a land-use problem for the communities that hoped to reuse the site.

The road not taken: recycling

There is a side door into this problem that Washington closed years before the Waste Policy Act. Used fuel still contains usable material, and some countries separate it out and burn it again. France reprocesses its used fuel at La Hague and makes a mixed-oxide fuel from the recovered plutonium. The United States went the other way. In April 1977 President Carter announced an indefinite deferral of commercial reprocessing, citing the danger that separated plutonium could be diverted into weapons. President Reagan lifted that ban in October 1981, but by then the industry had little appetite, and no commercial reprocessing plant followed.

The arguments for and against are still live. Supporters say recycling shrinks the volume of waste that must be buried and squeezes more energy from every pound of uranium. Critics say it costs more than the once-through cycle and creates security headaches. The economics depend on the price of fresh uranium, and I will not quote a price I cannot verify. My point is narrower. Whether you favor recycling or burial, the country has spent decades with neither. A policy of drift is the most expensive option, because the fuel keeps accumulating while the argument continues.

The best argument for the other side

Let me now state the best case for those who say Yucca was never the right answer. Nevada never consented. A state with no reactors was asked to take every other state's waste, and the choice was made by Congress through a statute that singled it out. Beyond the process, critics raised scientific questions about water moving through the mountain over very long times, and about earthquakes and volcanic history in the region. Leaders in both of Nevada's major parties have long opposed the project. Why should a conservative who believes in federalism and local consent back a repository that the host state is dead set against?

It is a good argument, and I take it seriously. I think there is real merit to the idea that picking a site by statute over a state's strong objection is a poor way to build a lasting solution. A permanent repository will last for generations, and it needs a community that is willing to host it, with a fair deal, rather than a community that was overruled.

But the argument goes to the method, not to the promise. Whatever one thinks of Yucca, the government made a contract with ratepayers, took their money, and did not deliver. If the answer is a different site, find it. If the answer is a consent-based process in which communities volunteer in return for real benefits, build it. If the answer is interim storage facilities in states that want them, license them. What is not acceptable is to say that because the first plan was flawed, the debt is canceled.

What a conservative should demand

1. Honor the contract. Whatever the site, the federal government owes ratepayers the service it sold them, or an honest refund.
2. Prefer consent to coercion. Offer communities a real stake, in jobs and payments, and let them say yes. A willing host beats an overruled one.
3. Give the money a real home. The fee was collected for a purpose. Congress should decide how the fund is used and stop treating it as a line on a ledger.
4. Stop paying twice. The Judgment Fund bill is a tax on a failure. Fix the failure and the bill shrinks.
5. Don't let the waste problem kill the industry. Nuclear power is among the sources that can deliver steady electricity, a topic covered in How the Power Grid Really Works and Why Supply Must Match Demand Every Second, and the waste promise is part of why it is hard to finance, as Why America Stopped Building Reactors and What the NRC Actually Does explains. France approached the problem differently, as France Built Reactors, Germany Shut Them, and America Argued in a Side-by-Side shows.

The bottom line

• Congress promised in the Nuclear Waste Policy Act of 1982 to take used reactor fuel starting in 1998. Customers paid a fee of one mill per kilowatt-hour of nuclear power for decades, and the government never started.
• Courts held the government to the contract. The D.C. Circuit said in 1997 the 1998 duty was unconditional, ordered the NRC in 2013 to keep reviewing Yucca, and later that year held that DOE could not keep collecting the fee without an accounting.
• Used fuel now sits in pools and dry casks at plant sites in many states, and taxpayers pay damages for the delay. Ratepayers have been charged twice.
• Support a consent-based path with willing host communities, insist that the federal government keep its contract or refund the money, and remember the principle: a law is binding on the people who dislike it, too.