Bella Montoya

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“This place is not a place of honor . . . no highly esteemed dead is commemorated here . . . nothing valued is here.”[1] One hundred thousand years from now,[2] this is the quote one could see engraved on a non-descript plaque with bins of aging nuclear waste stored below.[3] But first, the United States (U.S.) needs to create a long-term geologic disposal site[4] for all of its high-level nuclear waste.[5] The U.S. is one of the top producers of nuclear energy, accounting for roughly 31% of global nuclear electricity generation.[6] Estimates show that the U.S. generates roughly 2,000 metric tons of used nuclear fuel annually,[7] and with no way of disposing of this waste it poses environmental, social justice, economic, and health effects.[8]

In the roughly seventy years since the U.S. began using nuclear energy as a civilian power source, and despite several attempts, there is still no high-level nuclear waste repository. There are several key differences between nuclear waste management in the U.S. versus the EU that help explain why the U.S. has a severe lack of progress in the creation of a high-level civilian waste disposal site.[10] In the U.S., the Nuclear Waste Policy Act (NWPA) gives the Department of Energy (DOE) the burden to develop a repository for high-level nuclear waste, the Nuclear Regulatory Commission bears the burden of its licensing, and the producers bear the financial burden of interim storage and disposal.^[11] In the EU, the Waste Directive created by the European Atomic Energy Community (EURATOM)  makes the producer financially responsible for disposing of its nuclear waste in the member state where it was produced.^[13]

Although both the U.S. and the EU mention public participation in their respective legislation, in practice this looks very different in the U.S. versus the EU.[14] The Nuclear Waste Policy Act mentions that public participation is “essential.”[15] However, the Euratom Waste Directive has an entire article dedicated to transparency, in which it requires Member States to “ensure” public participation and transparency.[16]

For years, the U.S. has tried, unsuccessfully, to select a high-level nuclear waste disposal site without public support. In 1987, in light of no “meaningful progress,” Congress amended the Nuclear Waste Policy Act of 1982 and directed the DOE to study Yucca Mountain in Nevada as the first geologic repository. Finland took the opposite route, and it is the country closest to having an operating high-level nuclear waste disposal site. Although initially Finland tried to select a location without first gaining local support, it abandoned this route in favor of a more transparent route The result is Onkalo. Finland’s approach proved so successful that when it came time for the national government to make a final decision on a repository in 2000, officials in Olkiluoto Island agreed to host it on the condition that their community be the only option presented.[18] If the U.S. wants to continue creating nuclear waste, it needs a disposal site; and its best may be to adopt Finland’s approach.

The environmental, ethical, and economical implications of nuclear waste are significant and the U.S. desperately needs a solution. The U.S. should amend the NWPA to study sites other than Yucca Mountain.[19] The NWPA should also be amended to emphasize consent-based siting. Additionally, the NWPA’s existing public policy language should be amended to encourage more authentic and diversified public participation.[20] Lastly, the NWPA should be amended to include an environmental justice provision. 

Part I provides a background on nuclear waste management in the US and the EU, with an emphasis on the controlling laws and agencies. Part I discussed current and future global nuclear waste disposal sites. Part II recommends amending the NWPA. These recommendations include amending the NWPA to consider multiple disposal sites, contain a more robust public participation section, emphasize consent-based siting, and add an environmental justice provision.

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[1] Mark Piesing, How to Build a Nuclear Warning for 10,000 years, BBC (Aug. 3, 2020), https://www.bbc.com/future/article/20200731-how-to-build-a-nuclear-warning-for-10000-years-time (a common message used to mark nuclear waste disposal sites); see generally Steve Rose, Nuclear waste: Keep out–for 100,000 years, The Guardian (Apr. 24, 2011), https://www.theguardian.com/artanddesign/2011/apr/24/nuclear-waste-storage (another possible warning is “This is not an important place; it is a place of danger. Stay away from the site. Do not disturb the site.”).

[2] Daniel Oberhaus, ‘Into Eternity’ is a Warning Message for the Future, Vice (May 6, 2017), https://www.vice.com/en/article/mgykk3/into-eternity-michael-madsen-onkalo-finland-nuclear-waste (for context, some of the oldest structures are less than 5,000 years old. For example, the pyramid of Giza is 4,500 years old and the Great Wall of China is 2,000 years old.).

[3] Piesing, spura note 1.

[4] NWPA of 1982, 97 P.L. 425, §10101, 96 Stat. 2201, 2 (1982) (amended 1987) (“The term ‘repository’ means any system licensed by the Commission that is intended to be used for, or may be used for, the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel.”).

[5] Rebecca Harms et al., World Nuclear Waste Report: Focus Europe 9 (2019) (“”No country in the world has a deep geological repository for spent nuclear fuel in operation.”).

[6] Nuclear Explained, Energy Info. Admin. (Dec. 22, 2021), https://www.eia.gov/energyexplained/nuclear/data-and-statistics.php.

[7] 5 Fast Facts About Spent Nuclear Fuel, Off. of Nuclear Energy (Mar. 30, 2020), https://www.energy.gov/ne/articles/5-fast-facts-about-spent-nuclear-fuel.

[8] See Jeff Johnson, Radioactive Waste Stranded as U.S. Shifts From Nuclear Energy, C&EN, Aug. 28 2018, https://cen.acs.org/energy/nuclear-power/Radioactive-waste-stranded-US-shifts/96/web/2018/08; Grant Smith, Federal Energy Subsidies: What Are We Getting for Our Money?, Environmental Working Group (Jul. 2019), https://www.ewg.org/news-insights/news/federal-energy-subsidies-what-are-we-getting-our-money.

[9] Nuclear Waste Policy Act of 1982, 97 P.L. 425, § 10101, 96 Stat. 2201, 2 (1982) (amended 1987) (“The term ‘repository’ means any system licensed by the Commission that is intended to be used for, or may be used for, the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel.”); Rebecca Harms et al., World Nuclear Waste Report: Focus Europe 9 (2019).

[10] See generally Nuclear Waste Policy Act; Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste L199/48.

^[11] Nuclear Energy Institute, Used Nuclear Fuel, NEI, https://www.nei.org/advocacy/make-regulations-smarter/used-nuclear-fuel; Jay M. Gutierrez & Alex S. Polanksy, Fundamentals of Nuclear Regulation in the United States 216 (Morgan, Lewis & Bokius, 2d ed. 2007).

[12] Compare Council Directive 2011/70 of Jul. 19, 2011, Establishing a Community Framework for the Responsible and safe Management of spent fuel and Radioactive waste, art. 10, 2011 O.J. (L 199) (Euratom) with NWPA of 1982, 97 P.L. 425, §10101, 96 Stat. 2201, 2 (1982) (amended 1987) (making the producer financially responsible for disposing of radioactive waste).

^[13] Council Directive 2011/70/Euratom of Jul. 19, 2011, Establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste, 2011 O.J. (L 199) (EU); Silvia Weko, Radioactive waste disposal in four words: “We do not know”, Energy Transition (Oct. 2018), https://energytransition.org/2018/10/radioactive-waste-disposal-in-four-words-we-do-not-know/.

[14] See Henry Fountain, On Nuclear Waste, Finland Shows U.S. How It Can Be Done, The New York Times, https://www.nytimes.com/2017/06/09/science/nuclear-reactor-waste-finland.html; Zeke Turner, A 100,000-Year Tomb for Finland’s Nuclear Waste; Other countries have hit political roadblocks in finding a lasting fix to the world’s nuclear-waste problem. Finland, meanwhile, has been quietly breaking ground, The Wall Street Journal (Jan. 24, 2017), https://www.wsj.com/articles/a-100-000-year-tomb-for-finlands-nuclear-waste-1485253831.

[15] Nuclear Waste Policy Act of 1982, 97 P.L. 425, §111, 96 Stat. 2201, 6 (1982) (amended 1987).

[16] Council Directive 2011/70 of Jul. 19, 2011, Establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste, 2011 O.J. (L 199) Art. 10 (Euratom).

[17] Jay M. Gutierrez & Alex S. Polanksy, Fundamentals of Nuclear Regulation in the United States 217 (Morgan, Lewis & Bokius, 2d ed. 2007).

[18] Id.

[19] H.R. 3053, 117th Cong. (2017) (in 2017 the House Committee on Energy and Commerce attempted to pass a bill that would amend the financing structure of creating a geologic repository).

[20] See supra note 4 at § 10131.