Why Biden should designate a nuclear waste negotiator

By David Klaus | January 12, 2021

An Atlas railcar carrying test weights on a test track. The US Energy Department is developing special railcars to transport casks of spent nuclear fuel to storage sites. Credit: Energy Department

(Editor’s Note: This Opinion piece is being published as a companion article to the essays in the January issue of our magazine, on “Advice to the Next President.”)

When President-elect Joe Biden comes to office, there will be a window of opportunity for the United States to make real progress on the management and disposition of nuclear waste. Once envisioned as a permanent waste storage site but now abandoned by both parties, Yucca Mountain is no longer a political lightning rod. And if the Nuclear Regulatory Commission grants licenses to one or more proposed interim storage sites in 2021, as seems likely, opponents of those sites will probably call for federal action on the many unaddressed issues associated with interim storage.

One way for Biden to take advantage of this opportunity would be to designate a senior-level representative to negotiate a path forward on two key challenges: siting a long-term repository for spent fuel from commercial nuclear reactors, and managing the 90,000 metric tons of spent nuclear fuel currently sitting at 70 reactor sites across the country. Because these challenges are mainly political, not technical, prioritizing the issue and designating a senior official to negotiate on the administration’s behalf has the potential to break the decades-long stalemate on nuclear waste.

Presidential leadership can make a difference, and addressing nuclear waste challenges is consistent with Biden’s climate agenda—which, as articulated in the Democratic Party Platform, includes existing and advanced nuclear among the zero-carbon technologies that can help combat global warming. The absence of a disposition pathway for spent fuel and other nuclear waste is a serious obstacle to building the next generation of modular and advanced nuclear power reactors. In fact, eight states currently have statutory bans on constructing nuclear power plants unless this issue is addressed, and it is a de facto prohibition in many others. Biden is looking to rebuild a cooperative relationship with congressional Republicans, and there is a strong history of bipartisan cooperation on nuclear issues.

The Trump legacy. When President Trump came to office, congressional and other advocates for a long-term repository at Nevada’s Yucca Mountain expected that he would revive the licensing process for the project. It was not to be. After not including funding for the Yucca Mountain project in two proposed Energy Department budgets, Trump put the final nail in the coffin earlier this year when he announced—by tweet, in the weeks leading up to the Nevada presidential primaries—that he opposes the project.

Biden has long opposed the Yucca Mountain repository. This means that the United States is back where it was in 1982 when the Nuclear Waste Policy Act was enacted—at square one in the siting and development of a long-term nuclear waste repository.

The United States is also at square one with regard to the development of a policy to manage the spent fuel over the 30 to 100 years before a long-term repository is built and operational. During the past four years, the Trump administration and Congress failed to take action on issues related to the consolidated interim storage of spent fuel. Instead, the most significant developments happened in the private sector and at the Nuclear Regulatory Commission. With demand for spent fuel storage driven by the increasing number of reactors that are closed or closing, two private companies initiated development of interim storage sites and filed license applications with the Commission. The proposed Interim Storage Partners site in Andrews, Texas, and the HI-STORE Consolidated Interim Storage Facility that Holtec International proposes to build in partnership with the Eddy-Lea Energy Alliance in southeastern New Mexico are controversial. The governors of both states have written to Trump and the Nuclear Regulatory Commission, opposing the licenses. Also, attorneys general in several other states have raised concerns that Holtec is undercapitalized or have opposed the company’s purchase of closed plants that are to be decommissioned.

To find a place to store spent nuclear fuel, Congress needs to stop trying to revive Yucca Mountain

If the Commission approves the licenses as expected, the two interim storage sites could be operational as early as 2022. Under this scenario, the Biden administration and Congress will face serious political pressure to address a number of significant issues related to consolidated interim storage that are outside the Commission’s authority.

The assignments. The first assignment for a senior negotiator would be to work with Congress on legislation initiating a new process to select one or more sites for a long-term repository and establish policies for the construction and operation of those facilities. The effort would build upon a recent history of bipartisan cooperation in Congress on nuclear waste issues and an emerging consensus within the United States and other nuclear countries that the siting process should be “consent-based” and conducted in a transparent manner that establishes trust and minimizes the potential for prolonged political and legal opposition. The foundation for this consensus is the work of the Blue Ribbon Commission on America’s Nuclear Future, augmented by non-governmental initiatives such as the Stanford-University-led project to “Reset America’s Nuclear Waste Management Strategy and Policies” and the Bipartisan Policy Center’s “Moving Forward with Consent-Based Siting for Nuclear Waste Facilities” report.

The controversy surrounding the Yucca Mountain site has been a barrier to congressional action in the past, but Yucca Mountain is now effectively off the table. Still, there are issues that Congress and the administration will need to resolve, including:

  • whether to establish a new entity to manage the nuclear waste program, such as an independent governmental organization separate from the Department of Energy or a private corporation;
  • how to develop safety standards and other operating criteria;
  • what type of incentives or compensation are appropriate for host communities and states;
  • whether Congressional approval is required and, if so, whether a majority vote is sufficient; and
  • which entities must give consent to the siting of a repository (i.e. states, local governments, tribes, etc.), and at what point in the process they can withdraw that consent.

A senior negotiator representing the administration would provide focus, leadership, and momentum for legislative action that puts the United States on a pathway to resolving this extremely important and difficult problem.

The second assignment for a senior negotiator would be to work with Congress, the states, local governments, tribes, and other interested parties to address issues associated with proposed consolidated interim storage sites in New Mexico and Texas. The Nuclear Regulatory Commission is likely to approve licenses for those sites within the year, because the proposed dry cask storage systems are identical to those that the Commission has previously approved for use at reactor sites around the country, and environmental impact assessments have determined that there is nothing unique or hazardous about the proposed storage-site locations that would provide an environmental or technical basis for denying the licenses.

Nevertheless, the governors of New Mexico and Texas have raised issues related to the transportation of the spent fuel, impacts on agriculture and oil and gas development, terrorism, and the potential for these “interim” sites to become de facto permanent disposal facilities given the continuing failure to build a long-term repository.

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These issues are outside the authority of the Commission, as is the question of whether there should be compensation paid to the host states and localities and, if so, by whom. New Mexico received over $200 million in road funds and other compensation for hosting the Waste Isolation Pilot Project, the nation’s only operating underground repository for nuclear waste. Addressing compensation and other concerns raised by the state is likely to be a complex negotiation, made even more challenging because Congressional approval will undoubtedly be required to implement any agreement. A senior-level negotiator could serve as an important bridge between state officials and Congress, working to address state concerns in ways that are consistent with those of Congress and the White House.

The negotiator—to czar or not to czar. The appointment of a senior negotiator on nuclear waste issues brings to mind the ill-fated Office of the Nuclear Waste Negotiator, an independent federal entity established by the Nuclear Waste Amendments of 1987 that was abolished in 1995. While similar in name, the senior negotiator suggested here is fundamentally different with regard to structure and mission—as well as likelihood of success. In my view, the structure of the position or office is less important than the extent to which the administration uses the designation of a senior negotiator as a means to take leadership and prioritize the issue.

As is the current fashion, the negotiator could be named a “czar”—but he or she could be equally effective as a designated senior official located in and reporting to the White House, the Department of Energy, or another federal entity. Given the role of nuclear energy in achieving climate objectives, the negotiator might best be positioned as a “sub-czar” reporting to climate czar Gina McCarthy or part of the White House Office of Domestic Climate Policy led by McCarthy. Reporting directly to the White House would give the negotiator added stature, particularly in discussions with state officials, and be a way for the administration to demonstrate the importance of addressing nuclear waste issues.

With regard to mission, the former Nuclear Waste Negotiator was tasked to “…find a State or Indian tribe willing to host a repository or monitored retrievable storage facility at a technically qualified site on reasonable terms.” The senior negotiator here would instead work with Congress to establish a process for reaching this objective. The goal with regard to consolidated interim storage facilities would be to address the impact of a siting decision that would in many respects already have been made by the Nuclear Regulatory Commission.

It would be presumptuous of me to suggest who President-elect Biden should name for the position, but ideally it would be someone with the skill set of a hostage negotiator. The Nuclear Waste Policy Act was designed to hold the use of consolidated interim storage facilities “hostage” to the issuance of a license for a long-term repository—as a means of assuring the states and localities where “interim” facilities are built that they would not become permanent. The Act did not anticipate that private companies would develop interim storage sites and have them licensed by the Nuclear Regulatory Commission, thereby freeing the hostage on terms and conditions not subject to review or approval by state or local government. As is the case with hostage situations, a good negotiator will be needed to prevent the politics surrounding these issues from escalating out of control when the Commission grants these licenses.

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Keywords: nuclear waste
Topics: Nuclear Energy, Opinion

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Don Hancock
3 years ago

Mr. Klaus conveniently (for his argument) forgets that there has been a licensed private consolidated storage facility – Private Fuel Storage – in Utah since 2006. It’s not true that the idea of private consolidated storage wasn’t contemplated – the Nuclear Waste Policy Act explicitly says that private utilities are responsible for storage. Mr. Klaus is right that the Biden administration should have a special person in charge of working with utility companies, but the goal is to provide better on-site storage or have one or more utility companies agree to do consolidated storage at active or closed reactor(s). That… Read more »

Jan Boudart
3 years ago
Reply to  Don Hancock

Thank you Mr. Hancock for your timely, well informed reply. No one can challenge you on your knowledge of the issue, or your longevity as an activist and scholar on the High-Level Nuclear Waste issue.

Jan Boudart
3 years ago

I am expressing this from my own personal knowledge and not as a member of any organization. Unfortunately I am still capable of being shocked. Seeing the Nestlè ad in the Bulletin of Atomic Scientists website is hideous (At thesaurus.com there are 16 synonyms for “Appalling”. All of them apply). Nestlè should be brought down as an international corporation that has abnegated human rights all over the world, starting decades ago with their baby milk powder and going to today where they steal water from small communities in Michigan because back at the beginning of time someone signed a contract.… Read more »

Donna Gilmore
3 years ago

The author’s assumptions downplay the fact major technical challenges have not been resolved in over 60 years of trying for either short-term or long-term storage. Regarding short-term storage, the NRC approves unsafe thin-wall dry storage canisters for storage of highly radioactive spent nuclear fuel. The NRC knows the 1/2″ to 5/8″ stainless steel thin-wall canisters are vulnerable to cracking. They admit in an 8/5/2014 meeting summary that once cracks start they can grow through the wall in only 16 years. And they admit they have no way to find cracks, let alone repair or stop them. The Sandia Lab December… Read more »

Jan Boudart
3 years ago

The overall tone of Mr. Klaus’s essay bespeaks the mantle of administrative authority that characterizes and has come to dominate American life. He ignores the opinions of activists, scholars and Tribes who have spent decades developing best practices for the management of HLRW (High-Level Radioactive Waste). I refer to the May 2017 Joint Declaration of the Anishinabek/Iroquois Alliance wherein 6 basic rules for HLRW management are expounded. That statement is followed the studious and vital work of Canadian Gordon Edwards on the Concept of Abandonment; and further ideas comparing the Concept of Abandonment to Persistence of Memory. Mr. Klaus should… Read more »


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