Chapter 6 Nuclear Power

Since its discovery in the 20th Century, nuclear energy has straddled a line between great potential and catastrophic danger. On one hand, nuclear energy presents the possibility of a long-term energy source that could release us from the dependency on fossil fuels. On the other hand, Hiroshima and Nagasaki, the Cold War, Chernobyl, and Fukushima remind us of the destructive potential and dangers of nuclear energy.

Nuclear energy is energy from the core, or nucleus, of an atom. US EIA, “Nuclear Explained.” Enormous energy is stored in the bonds that hold the nucleus together, which is released when the bonds are broken in nuclear fission. When the energy is released, nuclear energy can be used to make electricity. Energy can also be released when nuclei bond together in nuclear fusions – as happens in the sun and the hydrogen bomb.

According to the energy “input/output” chart (below), nuclear power as of 2013 constitutes about 8.4% of total U.S. primary energy.

See EIA, “U.S. Energy Flow – 2013”

In this chapter, you will learn about:

The shift from military uses of nuclear energy to peaceful oneso The production of electricity through the use of nuclear energyo The origin and rise of nuclear power, both domestically and internationally

The worldwide growth of nuclear wasteo The growth of nuclear power in Europe and Asiao The current status of nuclear power in the United States

The construction, licensing and operation of American nuclear power plantso The process for building new nuclear power plants and reactors in the United Stateso The current licensing process for nuclear reactors

The options and remedies for the disposal of nuclear waste o The status of the Yucca mountain nuclear waste storage siteo The proposals for storage of high-radiation nuclear waste

Chapter 6 – Nuclear Energy

6.1 Early Development of Nuclear Power6.1.1  Atomic Bomb6.1.2  First Generation of Nuclear Power Plants6.1.3  Energy Shocks of 1979

6.2     Worldwide Growth of Nuclear Power6.2.1  Nuclear Power in Europe6.2.2  Nuclear Power in Asia

6.3 Existing U.S. Nuclear Power Plants

6.4   Building New Nuclear Reactors in the United States6.4.1  Rebirth of US nuclear power industry6.4.2 Role of State Law6.4.3  Federal Licensing Procedure6.4.4  Obstacles to the Domestic Proliferation of Nuclear Power

6.5   Disposal of Nuclear Waste6.5.1  Low-Level Radioactive Waste6.5.2  High-Level Radioactive Waste

Sources: FRED BOSSELMAN ET AL., ENERGY, ECONOMICS AND THE ENVIRONMENT Chapter 13, 996-

1096 (3rd ed. 2010). LAUREN SCHROEDER, OIL AND GAS LAW: A LEGAL RESEARCH GUIDE (2012).

6.1. Early Development of Nuclear Power

Nuclear power comes in two forms: nuclear fusion and nuclear fission. US EIA, “Nuclear Explained.” In nuclear fusion, energy is released when atoms are combined or fused together to form a larger atom. The earth derives almost of all of its energy from nuclear fusions produced by the sun. While the hydrogen bomb uses nuclear fusion, scientists have been unable to harness it for consumption. Nuclear fission, on the other hand, has been developed for peaceful use. In nuclear fission, atoms are split apart to form smaller atoms, releasing tremendous amounts of energy. Nuclear power plants use this energy to produce electricity.

Our basic scientific knowledge regarding the physics of nuclear energy dates to the end of the 19th century. World-Nuclear.org, "Outline History of Nuclear Energy". The birth of nuclear energy begins with the 1895-96 discovery of radiation. For the next 40 years, scientists gained a rudimentary knowledge of radiation and, in the process, the nature of an atom. The scientific turning point occurred in 1938-39 when Lise Meitner and Otto Frisch, working under Niels Bohr, theorized that bombarding an atom with an accelerated proton – and the resultant nuclear fission -- could produce an energy release of around 200 million electron volts. This realization led to world-wide research into the energy-release potential of nuclear fission.

6.1.1 Atomic Bomb

Nuclear energy took center stage during World War II, when the United States invented the atomic bomb. Near the end of the war, U.S. forces used this newly-discovered weapon on the Japanese cities Hiroshima and Nagasaki. These events made clear the terrible human, environmental and political issues associated with nuclear energy.

In the aftermath of World War II, the United States decided to encourage the spread of peaceful uses of nuclear energy. President Eisenhower’s “Atoms for Peace” program, transferred nuclear technology from the military to private companies specialized in power plant construction. Around the same time, Congress passed the Atomic Energy Act of 1954 (AEA), 42 USC § 2011 et seq., which encouraged the private development of nuclear power as regulated by what is now the Nuclear Regulatory Commission (NRC).

6.1.2 First Generation of Nuclear Power Plants

The world’s first commercial nuclear power plant, Calder Hall in Windscale, England, was opened in 1956. BBC, "1956: Queen Switches on Nuclear Power". The first commercial nuclear power plant in America was completed in 1957 in Shippingport, Pennsylvania. By the early 1960s, about three dozen small nuclear plants had been built around the world. With more plants and improvements in technology, optimism grew that electricity prices would fall drastically. Power companies in the United States, Japan, Sweden, Britain, France, Germany, and Canada joined the nuclear movement, building almost 300 nuclear plants between 1965 and 1975. Pride in American innovation and fears of dependence on foreign oil made nuclear power popular with the American public. But as people learned of the long-term effects of radiation sickness on the residents of Hiroshima and Nagasaki, doubts began about the safety of nuclear power.

Despite growing concerns among citizens and scientists, the Atomic Energy Commission (the predecessor to the NRC) was slow to confront issues of reactor safety, thermal pollution, and nuclear

waste. NRC.gov, "A Short History of Nuclear Regulation, 1946-1999". Congress responded by creating the NRC in the Energy Reorganization Act of 1974, a fully independent regulatory body spun off from the AEC. While the NRC moved slowly (the regulations only applied to new power plants) on regulatory changes to reactor safety and licensing, the agency strengthened regulations regarding transportation and safeguarding of nuclear materials in response to growing national apprehension about nuclear sabotage.

6.1.3 Energy Shocks of 1979

Two events in 1979 harmed the American nuclear power industry and led to increased NRC regulation and monitoring of the nuclear industry. The first was the 1979 oil shock, which reduced the U.S. oil supplies and raised the price of electricity. See Wikipedia, “1979 Energy Crisis.” As Americans consumed les electricity, many companies cancelled construction of planned nuclear projects.

The second and more significant event was the accident at Metropolitan Edison’s Three Mile Island nuclear power plant near Harrisburg, Pennsylvania. See Wikipedia, “Three Mile Island Accident.” In what was described as the nation’s worst nuclear accident, a small non-nuclear malfunction caused radioactive water to be discharged from the power plant. In In re TMI Litigation, 193 F.3d 613 (3d. Cir. 1999), citizens sued the Three Miles Island utility company alleging they suffered neoplasms as a result of the radiation released from the company’s plant. However, the complaint was dismissed when the NRC’s Special Inquiry Group eventually concluded that the quantity of radioactive materials contained in the water released into the Susquehanna River was not significant. Despite this conclusion, public support for nuclear power fell dramatically.

These two events slowed the growth of the nuclear energy industry in the United States. Investment in the nuclear industry dwindled as the price of electricity rose, and utilities became reluctant to build new (and expensive) nuclear power plants because of the risk regulators might disallow the recovery of new plants costs. In response to Three Mile Island, the NRC crafted new regulations centered on “human factors” and mandated nuclear plant operator training, testing, and licensing and restrictions on work hours and overtime. NRC.gov, "A Short History of Nuclear Regulation, 1946-1999". The NRC also commissioned several studies to analyze the effects of “small breaks and transients,” such as those that happened at Three Mile Island, and crafted updated emergency preparedness plans for both nuclear plants and communities surrounding the plants.

This concern led to a series of conflicts between utilities and nearby local governments that sought to “sandbag” plants under construction by refusing to participate in the evacuation planning process. In response, the NRC adopted the “realism doctrine” and concluded that the Commission could assume that each local government would really cooperate in the utility’s evacuation plan if an emergency arose, even if the local government claimed that it wouldn’t. This regulation was upheld in Commonwealth of Massachusetts v. United States, 856 F.2d 378 (1st Cir. 1988). But the regulatory effort came to late to reassure the public about nuclear power; interest in building new plants had disappeared.

6.1.4 Liability for Non-Military Nuclear Accidents in the United States

Nuclear power plants carry risks unlike those of conventional power plants. To address the potentially stultifying liability concerns, Congress passed Price-Anderson Act in 1957 to limit the liability for non-military nuclear accidents. NRC.gov, "A Short History of Nuclear Regulation, 1946-1999". The

Act indemnifies the US commercial nuclear industry from nuclear accidents, while providing a means of compensation to people adversely affected by a nuclear incident. The Act provides for $12.6 billion (the current amount) in no-fault, industry-funded insurance coverage, with any amount in excess of $12.6 billion covered either by a Congressional mandate to retroactively increase the share covered by the nuclear industry or by having the federal government cover any overage.

To date, only $151 million has been paid out of the Price-Anderson fund, all from the primary insurance. Of this total, $71 million went to cover the Three Mile Island incident and $65 million to cover various liabilities incurred by operation of federal nuclear facilities. Wikipedia.org, "Price-Anderson Nuclear Industries Indemnity Act". Congress extended these protections until the end of 2025 in the Energy Policy Act of 2005.

6.2 Worldwide Growth of Nuclear Power

As of 2014, thirty countries worldwide operated 437 nuclear reactors used to generate electricity. Nuclear power plants provided 12.3% of the world’s electricity production in 2012, and thirteen countries rely on nuclear power to generate at least one-quarter of their total electricity. Nuclear Energy Institute (NEI). Some countries that do not have their own nuclear plants still rely significantly on nuclear power by importing it – such as, Italy 10% and Denmark 8%. World Nuclear Association.

Source: World Nuclear Association.

Most of the current nuclear power facilities were built between 1970-1990, with the construction of new facilities slowing significantly since then. IAEA. Nonetheless, nuclear electricity production has trended upward over this same period. A main reason has been the improved performance of existing plants. For instance in the United States, the load factor (ratio of actual output over potential capacity output) has improved from 56% in 1980 to 66% in 1990 to around 87% today. Although the United States leads the world in load factor, other countries are not far behind. One quarter of the world’s reactors have load factors of more than 90%, and nearly two thirds do better than 75%. World Nuclear Association.

Operational Reactors by Age. As the following chart shows, most nuclear power plants in the world are more than 20 year old, with many more than 35 years old.

Source: International Atomic Energy Agency.

Leveling off of nuclear power production. Nuclear power production, which grew rapidly from 1970 to 1990, has tapered off in the last 20 years. And its share of total electric production has fallen from a high of 17% to its current 12% of total power production worldwide.

Source: World Nuclear Association.

Most of the current growth in the nuclear power industry is occurring in Asia, where support for nuclear energy had been strong – at least until the nuclear accident in Fukushima, Japan. According to the 2013 Agency projections for 2030, the world’s nuclear power generation capacity is expected to grow by 17% in the low case and by 94% in the high case. IAEA.

Source: International Atomic Energy Agency.

6.2.1

International Atomic Energy Agency

The International Atomic Energy Agency (IAEA) -- an organization within the United Nations -- was established to promote safe, secure, and peaceful nuclear technology. The IAEA began as the world’s “Atom’s for Peace” organization in 1957 in response to the great expectations and deep fears about nuclear energy. President Eisenhower highlighted these ideas in a speech to the U.N. General Assembly on December 8, 1953. See Atom’s for Peace Speech. In October 1956, 81 nations unanimously approved the IAEA Statute, the organization’s charter, which focuses on three primary areas – nuclear verification and security, safety, and technology transfer. See IAEA Statute.

The influence and stature of the IAEA has gone through cycles of ebb and flow sometimes due to events outside the IAEA’s control. The political and technical climate in the years following its formation prevented the IAEA from accomplishing much of its mandate. In the 1960s the nuclear climate continued to change with concerns over nuclear weaponry due to the Cuban missile crisis and France and China acquiring nuclear weapons. Originally the safeguards prescribed in the IAEA’s Statute were designed to cover individual nuclear plants or fuel supplies so the IAEA was poorly setup to deter nuclear proliferation.

Recognizing the limits of the IAEA, the Non-Proliferation of Nuclear Weapons Treaty (NPT) was opened for signature in 1968, and acceded to by almost all of the key industrial countries and by the vast majority of developing countries – a broad recognition in the international community of the dangers of

Reactors Under Construction in 2014

Country # Reactors Total Net Capacity (MW)

CHINA 27 26756RUSSIA 10 8382INDIA 6 3907KOREA, REPUBLIC OF 5 6370UNITED STATES 5 5633JAPAN 2 1325PAKISTAN 2 630SLOVAKIA 2 880UKRAINE 2 1900UNITED ARAB EMIRATES 2 2690ARGENTINA 1 25BELARUS 1 1109BRAZIL 1 1245FINLAND 1 1600FRANCE 1 1630

the spread of nuclear weapons. Then after the oil crisis of 1973, the IAEA’s function became distinctly more important as nuclear energy became more attractive in many countries. However, by the 1980s demand for new nuclear power plants plummeted, falling to essentially zero after the Chernobyl accident in 1986.

The importance of the IAEA came to the front again in 1991 when Iraq’s clandestine weapon program was discovered. This event caused some to doubts about the efficacy of the IAEA’s safeguards, but also served as a catalyst for a political consensus to strengthen them. In addition, the NPT violations by the Democratic People’s Republic of Korea and Three Mile Island accidents also highlighted the importance of IAEA’s role in the international community. Paradoxically, when all has gone well with nuclear energy and technology the governments of countries with advanced nuclear industries tend to keep the IAEA at a distance, but when matters go badly these same countries are often quick to agree to a more extensive role for the organization. Today, it is now widely accepted that the role of the IAEA has grown to include dealing with some of the problems associated with military nuclear activities despite this area being outside of the IAEA’s statutory scope. History of the IAEA: The First Forty Years

6.2.2 Nuclear Power in Europe

Currently, there are 194 nuclear reactors in operation in Europe—almost twice as many as in the United States. Seven European countries obtain more than 40% of their electricity from nuclear power, with France at 76%.

Nuclear expansion in Europe was quelled temporarily after the 1986 Chernobyl accident in Ukraine. In what is described as one of the worst nuclear power plant disasters in history, large amounts of radiation were released into the atmosphere, eventually causing the deaths of 70 people (30 of whom died quickly), and forcing the Soviet government to evacuate 3,000 square miles, much of which is still contaminated today. See World Nuclear Association, “Chernobyl Accident 1986.”

While Chernobyl remains in the minds of certain countries—such as Germany, which has decided to close all nuclear plants by 2020—it has not stopped nuclear expansion. A 2005 report by the United Nations estimated that four to six thousand people living in the immediate area of Chernobyl may eventually develop terminal cancer when other groups had projected the number to be as much as 93,000, leading people to believe that the that long-term effects of the accident are not as bad as once thought. Wikipedia: Chernobyl. Furthermore, countries such as Finland, Bulgaria, Ukraine, Russia, and the Slovak Republic have new nuclear power plants under construction. These countries continue to train nuclear scientists and engineers in order to produce additional nuclear energy.

6.2.2 Nuclear Power in Asia

While nuclear energy remains prevalent in Europe, the boom in new nuclear plants has come from Asia. As of 2014, China led the world in the number of nuclear plants under construction, with 27,

Capacity Factors Revisited

How much of the capacity of nuclear power plants is being used, compared to other power-generating sources? A study by the UK’s Department of Energy and Climate Change provides an answer for the UK (2007-2011):

Combined cycle gas turbine station   61.9%Nuclear power plants                            60.1%Coal fired power plants                         42.2%Hydroelectric power stations              35.4%Wind power plants                                 27.1%Photovoltaic power stations                   8.3%

Source: Wikipedia

while Russia has ten, India has six and South Korea has five. China is engaged in the world’s most rapid expansion of nuclear power, expecting to build about 50 new nuclear reactors by 2020. Before the Fukushima disaster in 2011, Japan had proposed 8 new nuclear reactors by 2020.

While the demand for nuclear energy in Asia has increased, the six big nuclear manufacturing firms—GE, Westinghouse, Areva, Toshiba, Hitachi, and Mistsubishi Heavy Industries—are having a difficult time finding a place in the Asian markets. They find themselves competing with firms backed by national governments, which are able to provide fixed prices and security in a high-liability industry. The “Big Six” often lose to lower state-backed bids.

In other parts of Asia the demand for nuclear power has vanished, the most notable case being Japan. In March 2011, a 9.0 magnitude earthquake struck off the coast of Japan creating a tsunami that caused considerable damage to the country. The earthquake itself caused the main island of Japan to move a few meters east and dropped the local coastline half a meter. The ensuing tsunami proved to be even more devastating as it inundated about 350 square miles, destroying infrastructure and killing over 19,000 people. World Nuclear Association.

Eleven nuclear reactors at four nuclear power plants in the region were operating at the time and all shut down automatically when the earthquake hit. Inspections afterward revealed that the reactors were very robust seismically and that no damage resulted from the earthquake itself. The real damage occurred from the tsunami, which knocked out the power needed to run the Residual Heat Removal (RHR) systems at the plants. At eight of the eleven reactors, power from the grid or backup generators kicked in to run the pumps, which were able to achieve a ‘cold shutdown’ of the reactors within about four days. However, at Fukushima Daiichi a 15-meter tsunami wave had flooded the area and disabled back-up generators as well as the heat exchangers, which dumped reactor waste heat into the sea. As a result the three reactors at this site effectively lost the ability to maintain proper reactor cooling and water circulation functions.

Major fuel melting ensued in all three of the Fukushima units, most of which was contained within the structures -- except for some volatile fission materials vented to cool the reactor. Additional releases of fission material occurred when the containment was breached, causing water used to cool the reactors to leak. Eventually, workers were able control the situation and the facility reached “cold shutdown condition” in mid December, some nine months after the crisis began. World Nuclear Association.

The incident at Fukushima increased fear among the Japanese public and caused the government to evacuate over 100,000 people to avoid the negative effects of radiation exposure. To date there have been no “official” fatalities tied directly to the nuclear accident, though many people are still suffering the effects from having to evacuate their homes. The government has proceeded cautiously in allowing people to return home.

Source: World Nuclear Association

Not surprisingly Japanese public sentiment against nuclear energy has risen drastically since this incident. This has created tension in the government, which must balance the country’s energy needs with limited national energy resources. Japan relies on imports to meet the majority of its energy requirements, and of the amount of power generated internally 30% had come from nuclear sources. Nuclear generation was expected to grow to 41% by 2017 and 50% by 2030 before the Fukushima incident, but since then the government has had to change its position. In October 2011 the government published a White Paper confirming that “Japan’s dependency on nuclear energy will be reduced as much as possible in the medium-range and long-range future.” World Nuclear Association.

The debate in Japan on nuclear power continues. In September 2012 the Japanese government announced a new policy goal to phase out all nuclear power plants by 2040, then five days later the government backpedalled and refused to give full cabinet approval to the plan. See WSJ, “Japan Backtracks on Nuclear-Free Plan”. In addition, a new report issued by the utility in charge of the Fukushima plant admitted that human errors contributed significantly to the accident. See WSJ, “Japan Utility Says Nuclear Crisis Was Avoidable”.

6.3 Status of Existing U.S. Nuclear Power Plants

While reliance on nuclear power has grown globally, it has waned in the United States – until very recently. In the 1990s, as U.S. natural gas production and gas-fired power plants increased, many critics came to believe that nuclear power had become obsolete. Investors did not see nuclear power plants as a good investment. It did not appear that the technology could compete on an economic basis against alternative energies. State legislatures even began taking protective measures to insulate utilities from the “stranded costs” that they had invested in nuclear power.

Despite the general pessimism, nuclear power began to grow more cost-efficient. Operating efficiency, which had been about 70% during the 1990s, increased to over 90% by 2004. Capacity at existing plants increased as well, given that nuclear plants can produce baseload power, by operating continuously and without interruption. As all these facts became more apparent, operators began seeking license extensions on their existing plants.

Despite increased reliance on existing nuclear power plants, growth in the industry has remained cautious. As of 2010, only one new reactor was under construction, at Watts Bar, Tennessee – a project that first broke ground in 1973. Furthermore, the Fukushima disaster reactor in Japan brought long-standing fears about nuclear power back to the forefront of popular opinion. Voice of America, “US Nuclear Renaissance Further Crippled by Japan Crisis.” In response to the incident, President Obama requested that the U.S. Nuclear Regulatory Commission conduct an investigation into the safety of existing U.S. reactors. Voice of America, “US Nuclear Renaissance Further Crippled by Japan Crisis.”

Public anxiety, regulatory hurdles, and industry stagnation have also contributed to a brain drain in the sector. Nuclear engineers tend to be older workers and relatively few engineering students decide to go into the field.

6.4 New Nuclear Reactors in the United States

The future for nuclear power in the United States, however, may be looking up. Although reactor construction in the United States has ceased since 1977, there are signs there may be a new generation of nuclear reactors and a U.S. renaissance in nuclear power. President Obama, for example, has pledged to build a “new generation of safe, clean nuclear power plants,” by tripling the value of loans for new nuclear plants the government is offering to guarantee.

6.4.1 Rebirth of US nuclear industry

The NRC is currently considering applications for licenses for 26 new reactors – though most are applications for additional reactors at existing plants, not for new plants. In 2012, the NRC announced the approval of two nuclear reactors at an existing nuclear power plant in Georgia – the first approval in 30 years. NPR, “US regulators approve first nuclear plants in generation”. The first of the $14 billion reactors will become operational in 2016, the second in 2017.

The recent push for reactor construction may be attributed to two interconnected movements. First, some proponents of green technology view safe nuclear power as a desirable alternative to fossil fuels and some renewable energies. They point out that life cycle emissions at nuclear plants are often lower than wind, solar, hydro, and natural gas power plants. Although the nuclear energy chain produces waste, the byproducts are carefully controlled and not released into the environment.

The second motivation to increase nuclear energy generation involves state sovereignty and the desire for the United States to achieve energy independence. PBS, “French Nuclear Power”. Although approximately 86% of uranium now comes from foreign sources, the United States has significant uranium reserves and is officially the ninth largest uranium producer in the world. See NWTRB, “Uranium Facts”; Science & Technology, “How One Equation Changed the World.” In fact, until 1980, the United States was the global leader in uranium production. US uranium mining slowed down during the 1970s and 1980s when the price of uranium plummeted. But as prices have risen, uranium mines (mostly in the western United States) have begun to reopen and ramp up production. NTRWB, “Uranium”

Source: Wikipedia

In general, the federal government supports nuclear development. The Energy Policy Act of 2005 committed $18.5 billion in loan commitments to fund so-called Section 638 “Standby Support for Certain Nuclear Plant Delays.” See Energy Policy Act of 2005. The program guarantees financing to new reactor projects while they undergo the complicated and lengthy approval process. This ensures the plant owners remain solvent until the plant comes online and begins producing revenue.

6.4.2 Role of State Law

Under the Atomic Energy Act, the Federal government possesses the exclusive authority to regulate the workplace safety of nuclear facilities. 42 USC § 2011 et seq. However, plants must comply with state laws that are not safety-related. See, e.g., Connecticut Coalition against Millstone v. Connecticut Siting council, 286 Conn. 57, 942 A.2d 345 (2008). While states are often inclined to assert influence in addressing safety concerns over nuclear power plants, federal law may preempt state laws regarding nuclear power safety.

In 1983, the Supreme Court held that, while states retain authority over “questions of need, reliability, cost, and other related State concerns,” federal preemption under the Atomic Energy Act (AEA) prevents states from regulating nuclear power for the purposes of radiological safety. Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 205 (1983). As the Court pointed out, Congress intended “that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the states retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.” Thus, state laws and regulatory decisions concerning nuclear power plants must be based on non-safety grounds.

Nonetheless, state law related to nuclear plant safety is not entirely preempted. The Supreme Court has held that a state’s award of punitive damages as a consequence of a radiological leak from a nuclear facility is not preempted by the AEA. Silkwood v. Kerr-McGee, 464 US 238 (1984); see also Cong. Research Service, “State Authority to Regulate Nuclear Power (2011)”. The Court has also held that a state claim by an employee of a nuclear power plant for intentional infliction of emotional distress is not preempted by the AEA. English v. General Electric Co. 496 US 72 (1990).

6.4.3 Federal Licensing Procedure

Nuclear plant licensing by the Nuclear Regulatory Commission (NRC) has recently undergone significant changes. Before 2008, all nuclear plants were licensed under a two-step approval process. 10 C.F.R. § 50 (Part 50). Power plant owners would first obtain a construction permit and next obtain an operating license, with interested parties challenging each step. Owners disliked the process because litigants could reopen issues in the licensing phase that were already addressed in the permitting phase. Parties challenging plant approval countered that that the law was skewed in favor of the owners, given gaps in pre-construction information about the plants.

In response to pressure from both sides, the NRC adopted a new (optional) licensing procedure in the Energy Policy Act of 1992. 10 C.F.R. § 52 (Part 52). The new regulation combines the old process into a single step and adds two additional requirements: Early Site Permit (ESP), Design Certification (DC), and Combined Operating License (COL). Environmental and safety issues are thus pushed to the front of the process. These changes reflect a move toward procedural efficiency by streamlining the hearing process through the greater use of informal hearings. The new framework has helped potential projects gain traction.

Early Site Permits (ESPs). The first step in the streamlined licensing procedure requires the NRC to, among other things, conduct safety and environmental inquiries into new plant applications. The agency must write a Safety Analysis Report and Environmental Impact Statement. If NRC decides to issue the permit, it is valid for not less than 10 and not more than 20 years – though renewable for another 10 to 20 years. World News Organization Parties with standing can challenge the permit, and the NRC’s Atomic Safety & Licensing Board’s decisions are appealable to circuit courts. The permit does not commit an applicant to building a project.

By issuing an ESP, NRC certifies that the site satisfies the criteria in those evaluation areas. If the company later chooses to pursue construction, the ESP becomes part of the combined construction and operation license (COL) application, which requires a separate review and approval. The NRC's review of the ESP application is expected to take three years. The goal of the ESP process is to resolve licensing issues related to siting before an applicant commits resources to construction. Therefore, whenever an ESP holder subsequently applies for a COL, it can rely on an already approved ESP with regard to all siting issues related to that particular site in the COL application. One of the consequences of this expedited proceeding is that parties contesting a COL application referencing an ESP cannot challenge any site-related characteristics.

Licensing Power Plant Designs. Another modernization of the old two-step licensing process is to address new reactor designs. Under Part 52, the one-step licensing process provides for certifications of pre-designed reactors. See US NRC, “Backgrounder on Nuclear Power Plant Licensing Process.” This procedure recognizes that new reactor designs use much more sophisticated and often standardized technology. Rather than conducting an analysis of identical plant designs for every application, the NRC sought to encourage companies to build already-designed (and certified) reactors under a less-expensive expedited process.

Thus, Part 52 mimics patent law: reactor designers petition the NRC and, if their reactor design is approved, they can sell that design to companies wishing to build reactors. Bt examining all design petitions and approving reactors believed to be the safest, the NRC promotes national design uniformity. The NRC is also freed from conducting safety checks and facility inspections, and setting maintenance requirements. Nonetheless, a Part 52 review may still take nearly four years to complete and may lead to

problems stemming from new technological advancements made near the end of the licensing process. NRC News.

After examining a design, the NRC conducts a safety evaluation report (SER) and initiates a rulemaking process that invites limited public comment. Part 52 promotes design uniformity by deterring design deviation: (1) any design changes must undergo a new review and new rulemaking; (2) design certification holders cannot make significant design changes without receiving a strict exemption; and (3) NRC may not retrofit reactors unless it is required to protect public health. The NRC has discretion whether and when to hold public hearings, which many believe reduces the public’s ability to oppose a submitted design.

While Part 52 maximizes licensing efficiency, the one-step process may not always serve the public interest. For instance, the design certification process isn’t tied to specific locations, and people living near potential reactor sites may not know about the possibility of having a reactor near their homes until after the NRC grants a license.

Combined Operating Licenses (COLs). Part 52’s one-step COL combines construction and operation licenses into a single application, thus allowing for more expedited operation of new reactors. Under the old system, energy companies were subjected to two separate and lengthy licensing application processes. In the new process an applicant need only attain a single COL before plant operation may commence. Furthermore, if design requirements and siting criteria are resolved with a DC and ESP respectively, COL applicants holding one or both of these licenses can simply reference either or both in a COL application to satisfy those requirements.

In addition to the COL, Part 52 requires reactor operators must comply with the Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) process. ITAAC is a “final check” meant to ensure safety and that the reactor meets construction requirements. ITAAC also requires reactor operators to conduct periodic function tests and report the results of these tests directly to the NRC. The NRC publishes a record of these reviews in the Federal Register. Any person affected by plant operation may request a hearing within 60 days of the publication of the Federal Register notice “on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria in the combined license.” NRC, “ITAAC” If an applicant passes all ITAAC tests related to siting, no party can raise a last-minute challenge.

In Nuclear Info. Resource Serv. v. NRC. 969 F.2d 1169 (D.C. Cir. 1992), it was argued that the new process violated the Atomic Energy Act because the AEA had intended to require two licensing processes, and did not authorize the NRC to rely on pre-construction findings in the post-production hearings. The court held that the AEA does not discuss the number of steps required in a licensing process, and the NRC has the authority decide whether or not a later step needs to be revisited.

Despite these attempts at streamlining the licensing process, citizen and states opposed to nuclear energy have been successful in slowing down licensing through litigation. For example, in 2012 the DC Court of Appeals forced the NRC to freeze 19 licensing decisions. See State of New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).  The court held the NRC had violated the National Environmental Policy Act (NEPA) by allowing nuclear power plants to begin operating without an environmental review of the impacts of long-term nuclear waste storage and disposal, as well as the impacts that could result if final disposal options are never established. 

After the decision, the NRC committed to addressing the risks of long-term on-site nuclear waste storage before making any licensing decisions. Other courts have been more accepting of the NRC’s attempts to re-start the nuclear power industry. See State of New York v. NRC, 589 F.3d 551 (2d Cir. 2009) (upholding NRC’s refusal to find that spent fuels at nuclear power plants create a significant environmental impact within the meaning of NEPA); Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338 (1st Cir. 2004) (upholding NRC’s decision to adopt an informal process for hearings on almost every type of reactor licensing proceeding).

6.4.4 Obstacles to the Domestic Nuclear Power

Despite support for more domestic nuclear power, the industry is shrouded in unanswered questions and crippling uncertainties. Political support for “energy independence” is undeniable, but major concerns remain, such as lack of infrastructure for electric transportation, fuel supply, water use impact, labor force adequacy, and availability of industrial components.

Moreover, greater use of nuclear power is unlikely to resolve our dependency on foreign oil. Short of a complete transformation of our transportation systems to electric-powered vehicles, it’s doubtful nuclear power would resolve our foreign oil dependency – which actually is being addressed by new domestic oil extraction technologies, like fracking.

Fuel supply is another concern in the growth of domestic nuclear energy. Based on current market prices and usage rates, the amount of Uranium available today would satisfy demand for the next 80 years. World Nuclear Organization, Information. While this assured supply is higher than some fossil fuels, economically recoverable uranium reserves might not be adequate for a larger US nuclear market. World Nuclear Association, “What is Uranium? How does it Work?” Some have suggested alternative sources of reactor fuel (such as thorium), but their economic viability is speculative.

Water impact is also a problem for an expanded nuclear energy industry. Reactors require huge amounts of water as coolant because of the heat generated in the reactor cores. Some municipalities are considering the use of treated wastewater for reactor cooling, but competition from natural gas and coal facilities may limit available water supplies. Moreover, heat is regulated as a pollutant under the Clean Water Act, and requires a section 402 permit for discharge. See 33 USC § 1342, 1362(6).

Because of the long U.S. nuclear slow-down, workforce adequacy is another concern for the expansion of the nuclear power industry. For example, Westinghouse has predicted, “more than half of the world’s nuclear engineering workforce will need to be replaced in the next 10 years.” With scores of plants being permanently decommissioned in the 1990s, the uncertainty about the future of nuclear energy led to a decline in the workforce. To expand, hundreds of thousands of new workers, scientists, and engineers will be required in the next twenty years.

Similarly, component shortages have developed as a result of the US nuclear slow-down. Currently, Japan Steel Works and Russia are the only producers of the forgings used in reactor vessels. Based on this supply-side shortage, quality control for nuclear components is a major concern. Any expansion of the nuclear industry is likely to be slow. Components manufacturers have an eight-year back-log of orders.

Political concerns about environmental justice also plague the nuclear industry. While the expanded nuclear power seems to many politicians to be a “silver bullet” for our energy problems, citizen

and environmental groups find nuclear plants to be unattractive in their regions. New nuclear reactors are unlikely to be constructed in wealthy regions of the country – including because of “not-in-my-backyard” stance of potential investors. Moreover, losses incurred by investors based on the first generation of nuclear plants are not easily forgotten, despite potential loan guarantees from the federal government. See The New York Times, “DOE Delivers its First, Long-Awaited Nuclear Loan Guarantee.”

6.5 Disposal of Nuclear Waste

The issue of nuclear waste disposal is perhaps one of the most polarizing impediments to the expansion of the U.S. nuclear industry See Nuclear Energy Institute, “Nuclear Waste Disposal.” Scientific uncertainty, environmental justice issues, and past nuclear disasters play a major role in shaping policy on the treatment of radioactive waste.

Radiation essentially contaminates anything coming into contact with radioactive material. However, as radioactive material emits radiation, it gradually loses its radioactive property. Some materials become safe within a matter of days while other materials remain dangerously radioactive for hundreds or thousands of years. There are two main categories of radioactive waste: low-level radioactive waste and high-level radioactive waste.

6.5.1 Low-Level Radioactive Waste

Low-level radioactive waste is material left behind at various stages of production of nuclear energy. US NRC, “Low-Level Waste.” Mining and milling of uranium creates waste known as “mill tailings,” which contain the radioactive decay products from the uranium chains and heavy metals. US NRC, “Mill Tailings.” Later in the process, the refining, movement, and use of uranium creates waste essentially everywhere it goes. Low-level waste can be created through the handling of material and can include lab coats, tools, and materials coming into contact with neutron radiation. US NRC, “Low-Level Waste.”

These byproducts are treated as low-level waste divided into four classes: A, B, C, and greater-than-class-C. Radioactive Waste Streams: Waste Classification for Disposal. The half life, or amount of time a radioactive material takes to decay (become safe), is the mechanism by which waste is categorized. Waste Classification for Disposal. The classes are ranked in order of their hazard level, with Class A waste being the least hazardous. Waste Classification for Disposal. Currently, all low-level radioactive waste is stored in three active sites located in South Carolina, Washington, and Utah. US NRC: Low-Level Waste Disposal. EnergySolutions Barnwell Operations, located in Barnwell, South Carolina, and U.S. Ecology, located in Richland, Washington, are licensed to receive wastes in Classes A-C while EnergySolutions Clive Operations, located in Clive, Utah, is licensed only to receive Class A waste. US NRC, “Locations of Low-Level Waste Disposal Facilities.” Approximately 2 million cubic feet and 780 thousand curies of low-level radioactive waste were disposed of in 2008. US NRC, “Low-Level Waste Disposal Statistics.”

6.5.2 High-Level Radioactive Waste

High-level radioactive waste receives the most attention, as it is much more dangerous. High-level radioactive wastes are the highly radioactive materials produced as a byproduct of the reactions that occur inside nuclear reactors. NRC, “High-Level Waste.” High-level wastes take one of two forms: (1) spent (used) reactor fuel when it is accepted for disposal and (2) waste materials remaining after spent

fuel is reprocessed. NRC, “High-Level Waste.” Spent nuclear fuel is fuel from a reactor that is no longer efficient in creating electricity but remains thermally hot, highly radioactive and potentially harmful. NRC, “High-Level Waste.” The major controversy arises from the question of where these high-level wastes should go.

Onsite Storage. Since the only way radioactive waste becomes harmless is through natural decay, which can take hundreds of thousands of years, nuclear waste must be stored and finally disposed of in a way the provides sufficient protection of the public and environment for a long period of time. NRC, “High-Level Waste.”

Currently, there are no permanent disposal repositories in the United States for high-level nuclear waste; therefore, high-level waste is in temporary storage, mainly at nuclear power plants. NRC, “Radioactive Waste: Production, Storage, Disposal (NUREG/BR-0216, Revision 2).” Onsite storage is currently the only option in the United States for nuclear industry and all plants are responsible for safely storing spent fuel rods and reaction byproducts on site at the plant where the fuel was used. As far as how the waste is stored, all United States nuclear power plants store spent nuclear fuel in water pools. US NRC: “Storage of Spent Nuclear Fuel.” These pools are made with reinforced concrete that is several feet thick, with steel liners, and are designed to cool spent fuel rods under at least 20 feet of water for three to five years. After that point the rods can be safely sequestered. NRC regulations do not specify a maximum time for storing spent fuel in water pools; however, the NRC has expressed its view that nuclear fuel can be stored safely in pools for at least 60 years beyond the licensed life of any reactor without significant environmental concerns. US NRC. At current licensing terms that would amount to at least 120 years of safe storage. US NRC. Today, approximately 40 of 65 nuclear sites have run out of space for water pool storage.

The shortage in pool capacity has led to an emerging trend called “dry cask storage.” See NRC, “Dry Cask Storage.” Dry cask storage allows spent fuel that has already been cooled in a spent fuel pool for at least one year to be sequestered and surrounded by inert gas inside a leak-tight steel container that is either welded or bolted closed. NRC, “Dry Cask Storage.” Each container is then surrounded by additional steel, concrete, or other material to provide additional radiation shielding. NRC, “Dry Cask Storage.” Despite the original controversy over dry cask storage, studies show this method is safer (in

terms of security against attack, theft, etc.) and likely to be more economical than water storage (as dry casks require much less attention and maintenance).

Source: NRC: “Typical Dry Cask Storage System”

As plants reach their pool capacity they are forced to turn to dry cask storage systems. Therefore, not only is dry cask storage an alternative way to store high-level radioactive waste, but it also is becoming a more prevalent form of storage as plants run out of pool capacity. Dry cask storage systems are now in place at a growing number of power plant sites and an interim facility located at the Idaho National Environmental and Engineering Laboratory near Idaho Falls, Idaho. US NRC. As of November 2010, there were 63 independent spent fuel storage installations (“ISFSIs”) licensed to operate at 57 sites in 33 states. Over 1,400 casks are stored in these independent facilities. US NRC. The locations of these sites are shown below:

NRC, “US Independent Spent Fuel Storage Installations”

Permanent Burial. Since the 1970s, the policy in the United States for dealing with nuclear waste over the long-term has been to bury it underground. The reasons for this solution were logical: uranium came from deep within the earth as an ore so it should be returned there; if buried underground, no one could access it and use it for terrorist activities; and if deep underground in a secure, remote location, it would pose the least amount of danger of pollution and contamination to humans. Reflecting these views, the Nuclear Waste Policy Act of 1982 commissioned the Department of Energy (DOE) to find and establish a site that would serve as the permanent, underground repository for all of our nuclear waste. See Nuclear Waste Policy Act of 1982. The DOE eventually selected five sites that were narrowed down to three in Nevada, Texas, and Washington State. In 1987, after much public outcry, the selection was then narrowed to one: Yucca Mountain, Nevada.

Source: Nuclear Energy Institute

Exploratory and safety work then began on the Yucca Mountain site. Over the next 20 years, the DOE, the NRC, and the EPA certified that the site was safe. On July 23, 2002, President George W. Bush signed House Joint Resolution 87, which approved the site at Yucca Mountain for the development of a high-level radioactive waste and spent nuclear fuel repository. Pub. L. 107-200.

The siting decision remained controversial. Nevadans were wary to have the nation’s sole nuclear waste repository in their state. In addition, other states and cities did not want trains or trucks carrying nuclear waste to the site through their communities. Besides these “not in my backyard” concerns, there was the question of how far into the future could the government ensure the safety of the burial site? This question was answered in Nuclear Energy Institute, Inc. v. Environmental Protection Agency (D.C. Cir. 2004).

In this case, the court looked at the question of whether the compliance period had been properly set. Under the statute, the EPA administrator was required to promulgate rules to ensure that the safety of the site, consistent with recommendations by the National Academy of Sciences (NAS). In 1995 the NAS had issued a report questioning the projected window of time used to analyze the safety of the Yucca Mountain site (the compliance assessment). Although the EPA and other agencies had made safety and durability projections of the Yucca Mountain site using a 10,000-year window, the NAS concluded that there was no scientific basis for limiting the time period of the window to 10,000 years—

indeed, the NAS said the time frame projection should be consistent with the scale of time that the geologic aspects of the repository would be consistent: approximately 106 million years. Moreover, the risk to humans of peak radiation from the burial of the waste might not occur until hundreds of thousands of years later—not 10,000 years. Thus, the NAS recommended that the compliance assessment be conducted for the time when the greatest risk occurs.

Despite the NAS report, the EPA promulgated its rule in which it adopted a 10,000-year compliance period for the site, dismissing the NAS’s conclusion that a 1 million-year time period might be possible to predict. The DOE concurred with the EPA’s decision, finding a longer time period unworkable and infeasible.

The court held that the EPA had failed to comply with the statute when it acknowledged and then disregarded the NAS’s report and recommendation in the compliance assessment. The court noted that the EPA could have adopted the NAS’s recommendation and then modified it, but simply rejecting the recommendation by choosing a different compliance period was not permitted.

The court’s decision forced the EPA to issue a revised radiation standard for Yucca Mountain that was “based upon and consistent with” NAS recommendations. The statute had originally established a 15 millirem (“mrem”) per year exposure standard for the facility that applied for 10,00 years. EPA’s Final Health and Safety Standard for Yucca Mountain. (A millirem is a unit used to measure the effect of radiation on the human body. What is a “mrem”?) In response to the court’s decision, the EPA in 2005 proposed a revised rule with the (previous) dose limits of 15 mrem for the first 10,000 years, but a dose limit of 350 mrem/year for the next 990,000 years – the natural radiation levels for the region. In its final rule, the EPA modified the dual compliance standards (15 mrem/year with a separate groundwater protection standard for the first 10,000 years), and 100 mrem/year for the remaining period.

In 2009, President Obama proposed the DOE’s budget, which eliminated funding for the Yucca Mountain Project. He questioned the safety of Yucca Mountain as a storage site. His solution instead was to store the nuclear materials at the plants where they were produced or at some other, as yet undesignated, short-term storage site. Then in 2010, President Obama’s Energy Secretary, Steven Chu, withdrew the license to operate Yucca Mountain “with prejudice,” so that the license application can never be reviewed again. This spelled the end to the Yucca Mountain storage site – all after billions of dollars had been spent to establish, secure, verify, and prepare it as a nuclear repository site. See NRC, “High-Level Waste Disposal.”

Reprocessing. President Obama’s decision to end the Yucca Mountain project is partially buoyed by the weakening, science underpinning that project. Some scientists advocate leaving the waste on the surface so that it can be monitored and, if needed, retrieved at a later date for reuse. For example, Canada has initiated this approach by selecting an “Adaptive Phased Management” strategy. See Nuclear Waste Management Organization, "Implementing APM." Supporters of this movement point to advances in technology that allow us to reprocess used nuclear fuel to recover fissile and fertile materials to provide fresh fuel for existing and future power plants. Processing of Used Nuclear Fuel.

Further, by separating out nearly 500 radioactive isotopes, it might be possible to remove the most dangerous elements of the nuclear fuel and reduce the toxicity of the remaining waste. France has adopted this policy, though it is also moving towards using an underground storage facility for all waste that is to be operational in 2025. Smart Planet, “What France Plans to do with its Nuclear Waste.”

Finland and Sweden are also moving towards the use of permanent underground storage facilities. Storage and Disposal Options.

Source: Nuclear Energy: A Recyclable Energy Solution

The United States used to operate reprocessing facilities similar to those operated by France, but they were banned by President Carter in 1977 due to concerns about nuclear pollution and the ease with which such facilities could be used to make a nuclear bomb (the process produces plutonium, an ingredient in nuclear weapons). Some scientists are now calling for a reconsideration of this policy, as countries such as India, France, Russia, and the United Kingdom have had success with them. Processing of Used Nuclear Fuel.

Blue Ribbon Commission. In 2010, the DOE announced the formation of a “Blue Ribbon Commission on America’s Nuclear Future” to provide recommendations for a safe, long-term solution to managing the used nuclear fuel and waste. See Blue Ribbon Commission on America’s Nuclear Future, “Report of the Secretary of Energy.” The Commission’s final report, issued in 2012, concluded that the United States nuclear waste management policy had been troubled for decades and had finally reached an unacceptable impasse with the Obama Administration’s decision to halt work on the Yucca Mountain repository. PR Newswire.

The Commission’s report outlined a nuclear waste management strategy that included three main elements. Draft Report. First, the Commission recommended a consent-based approach to finding sites for future nuclear waste facilities, noting that trying to force such facilities on unwilling states and communities has not worked historically. Draft Report. Second, the Commission recommended that the responsibility for the nation's nuclear waste management program be transferred to a new organization that is independent of the DOE and dedicated solely to assuring the safe storage and ultimate disposal of spent nuclear waste fuel and high-level radioactive waste. Draft Report. Third, the Commission recommended changing the manner in which fees being paid into the Nuclear Waste Fund are treated in the federal budget to ensure they are being set aside and available for use as Congress initially intended. Draft Report. The report also recommended immediate efforts to commence development of at least one geologic disposal facility and at least one consolidated storage facility, as well as efforts to prepare for the eventual large-scale transport of spent nuclear fuel and high-level waste from current storage sites to those facilities. Draft Report. The report also recommended the U.S. continue to provide support for

nuclear energy innovation and workforce development, as well as strengthening its international leadership role in efforts to address safety, waste management, non-proliferation and security concerns. Draft Report.

Other views. Some politicians, such as Al Gore, have advocated against reprocessing because we know little about the nuclear fuel cycle beyond reactor operation (i.e., how the fuel acts once it leaves the reactor); because of local concerns about storing nuclear fuel near any community or neighborhood; and because of concerns that terrorists could seek to acquire or simply destroy nuclear fuel deposit sites. According to Gore, there is an international consensus supporting the stability, viability, and safety of long-term storage of nuclear fuel underground.

Gore has also addressed the issue of transporting nuclear waste to Yucca Mountain or some other deposit site. According to Gore, transporting such waste is controversial and risky and thus should be minimized. By sending all material to one site, it would reduce the need to move waste from interim site to interim site. Furthermore, the U.S nuclear energy industry has demonstrated a strong safety record in the transportation of nuclear waste, with more than 3,000 shipments of used nuclear fuel over the past 40 years with no harmful release of radioactivity or any injuries or environmental damages. NEI: “Nuclear Waste Disposal.” But opponents suggest that, though there is no record of any nuclear accident resulting from transporting nuclear materials, if all nuclear waste were moved to one site, the movement of all that material would far outweigh the relatively small amount of waste that has been transported so far.

Richard Stewart advocates a different tack. He claims that future generations will benefit from nuclear power and could possibly use the nuclear waste we seek to dispose of for other purposes. Solving the U.S. Nuclear Waste Dilemma. Therefore, he argues that we should save nuclear waste on the surface and not bury it in case future generations develop the technology to harness the great energy benefits locked in nuclear waste. Solving the U.S. Nuclear Waste Dilemma. Still, he advocates moving forward on one long-term repository for future use, and developing sound scientific methods for interim, short-term storage facilities. Solving the U.S. Nuclear Waste Dilemma. Moreover, we should open Yucca Mountain but only use a small portion of it for storage, to demonstrate to the public that it is a safe and viable option, to build public trust and consensus on a long-term storage site.

Waste Disposal Future.

While politicians and scientists quibble over the issue of long-term storage or immediate reprocessing, the nuclear industry must deal with the issue now. The NRC has essentially turned to the exclusive use of the “dry casks” storage systems if pool capacity is reached. Some advocacy organizations suggest dry casks are a better alternative than a place like Yucca Mountain, though they fall short of recommending long-term solutions for the utilization and storage of nuclear products. See Alliance for Nuclear Accountability, “Yucca Mountain Project: Not the Solution to Nuclear Waste.”

However, dry casks are unproven, as they were only adopted in 1986, so their long-term sustainability is untested beyond 25 years. Moreover, many other concerns, such as their susceptibility to terrorist attacks and the effects of leakage and cleanup after long-term storage, remain unaddressed. Opposition to High-Level Nuclear Waste.

As it stands, the United States has no long-term solution for nuclear fuel and waste storage, storage at nuclear plants is unfeasible except for the short-term, and NIMBY concerns prohibit the

contemplation of transporting nuclear fuel through many states to some other yet unknown nuclear store site. What will we do with our nuclear waste?