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

A recent congressional hearing strangely resembled the film Groundhog Day. The hearing—titled “American Nuclear Energy Expansion: Spent Fuel Policy and Innovation”—not only rekindled a decades-old debate about whether to recycle spent nuclear fuel from reactors; it also provided a platform to relive yet again the fantasy that somehow the US government can resolve all of the political, legal, and technical issues necessary to build a permanent nuclear waste storage facility at Yucca Mountain, Nevada.

The Republican leadership of the House Committee on Energy and Commerce clearly supported one path forward for commercial spent fuel. In her opening remarks, committee chair Cathy McMorris Rodgers, a Republican from Washington state, urged the committee to “update the law and build state support for a permanent repository at Yucca Mountain.” In his own opening remarks, Jeff Duncan, a South Carolina Republican and chair of the subcommittee hosting the hearing, lamented that “[u]nfortunately, the political objections of one state, NOT based on scientific reality, blocked the [Yucca Mountain] repository from being licensed and constructed.” Yucca Mountain was a recurrent theme in witness testimony and congressional questioning throughout the hearing.

But to really advance federal policy and innovation on spent nuclear fuel, Congress needs to learn the lessons of Yucca Mountain and to stop trying to revive it.

In the 2020 presidential campaign, Donald Trump and Joe Biden agreed there shouldn’t be an underground repository to permanently store nuclear waste at Yucca Mountain in Nevada, and that it was time for everyone else to accept that the project was finally off the table. As was the case four years ago, it is very unlikely the next administration, be it led by President Biden or President Trump, is going to reverse its position and attempt to revive a multibillion-dollar infrastructure project that has been dormant for over a decade.

Even if support were to emerge at the federal level, attempting to obtain permits for the facility would create an extraordinary legal and regulatory morass. The state of Nevada alone had filed over 200 objections to the Yucca Mountain construction and operating permits that the Nuclear Regulatory Commission (NRC) was considering before the process for considering them was suspended in 2011.

If the process were revived and those objections (or contentions, in NRC terminology) were somehow adjudicated in favor of the project, the state and other opponents would turn their attention to required NRC certification of transportation casks, emergency plans, evacuation routes, safety procedures, and operator training programs. Beyond these requirements, the project would have to acquire rights-of-way for the construction of an approximately 300-mile-long railroad and obtain a certification from the US Environmental Protection Agency of compliance with the National Environmental Policy Act and radiation-protection standards, as well as a host of other state and local approvals. Underlying these legal, regulatory, and political challenges are significant—and yet unresolved—technical issues associated with the repository design and the challenge of placing spent nuclear fuel canisters into a fractured rock formation located over a critical aquifer.

Beyond spent fuel disposal, the hearing dealt with the reprocessing of spent nuclear fuel to extract fissile material that might be made into new fuel. The subcommittee’s reprocessing discussion focused on proposals by two US nuclear startup companies, Oklo and Curio, which are developing projects to recycle high-assay low-enriched uranium (HALEU) from advanced reactors—that is, uranium that has more than five percent but less than 20 percent of the fissile uranium 235 isotope. The witnesses, including the director of the Idaho National Laboratory John Wagner, agreed that reprocessing used HALEU fuel could reduce the overall amount of radioactive material requiring permanent disposal. However, the clear consensus was that reprocessing would not make the spent fuel problem go away. Even if the United States goes forward with HALEU recycling, a permanent nuclear waste repository will be needed for defense waste and for most of the over 90,000 metric tons of commercial spent nuclear fuel now in storage at 75 sites across the United States.

Interestingly, Lake H. Barrett, the former principal deputy director for the Energy Department’s Office of Civilian Radioactive Waste Management, focused his testimony more on the importance of the federal-state relationship than the challenge of obtaining local consent for the construction of a nuclear waste storage facility. “The record is fairly clear that for the development of a significant federally purposed spent fuel waste facility, there is going to have to be an effective functional relationship with the host state in the United States.” As evidence, he cited the record of proposed nuclear waste facilities in Nevada, Tennessee, and Utah that failed in the face of state-level opposition, as well as the current opposition from Texas and New Mexico to proposed interim storage facilities in their respective states. State level officials consistently opposed the licensing and construction of these facilities, even though several were strongly supported by the local community.

The agreement between the federal government and the state of New Mexico that led to the development of the Waste Isolation Pilot Project (WIPP) illustrates how states and local communities can often differ in their support for a nuclear waste facility. The fundamental disconnect: Local communities directly benefit from the jobs and economic growth generated by a major infrastructure project, such as a nuclear waste disposal facility, but these benefits are not necessarily felt widely across the state and are not sufficient to overcome the inevitable political opposition from environmental and other local groups.

The legislation establishing WIPP—a geologic repository storing transuranic radioactive waste from nuclear weapons research and production—was enacted by Congress in 1992, only after it was amended to include payments of $20 million per year for 15 years to the state of New Mexico, as well as funding for the “Santa Fe Bypass”—a four-lane highway serving the politically liberal northern portion of the state, ostensibly built to avoid having trucks from nearby Los Alamos carrying nuclear waste travel through downtown Santa Fe.

Reaching agreements with a state and local community to site and develop a nuclear waste facility—be it a geologic repository or an interim surface storage site—will require strong commitment and leadership by the next administration. During the hearing, members of the subcommittee and witnesses all endorsed the current administration’s consent-based siting approach as a means to develop transparency and trust in selecting a site. But they also cautioned that siting an interim storage facility is unlikely to succeed until progress is made on a permanent disposal facility. Barrett further recommended that a “new independent dedicated waste management organization” be established outside of the Energy Department to oversee the siting process—a long-time recommendation made by several independent commissions of experts.

For spent nuclear fuel policy to make progress, Congress has an important role to play and the subcommittee hearing was certainly a step in the right direction. But if congressional leadership refuses to accept the reality that a repository at Yucca Mountain won’t happen under the current legislative and organizational framework, it will constantly move one step forward and two steps back. If Congress is serious about addressing the nuclear waste storage issue, its first move should be to repeal the provisions of the Nuclear Waste Policy Act that effectively mandate that the repository be located at Yucca Mountain and initiate a site-neutral, consent-based siting process for a permanent repository. Such new legislation could also remove—or modify—the ban on commercial recycling of spent fuel and facilitate the development of interim storage facilities as the process of siting and developing a permanent repository moves forward.