Obama keeps on dithering over disposal of Hanford's nuclear waste

The Obama administration wants to keep Harry Reid and his Nevada constituents happy. Besides, after 60-some years, what's the rush?

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The B reactor complex, operating in the 1940s, was the earliest facility to turn out large amounts of waste at Hanford.

The Obama administration wants to keep Harry Reid and his Nevada constituents happy. Besides, after 60-some years, what's the rush?

Anyone who thinks the city of Seattle has dithered inexcusably over replacing the Alaskan Way viaduct should contemplate the fact that for 67 years, ever since the first Hanford reactors started cranking out plutonium for atomic bombs, the nation has dithered — or not even bothered dithering — over storing its nuclear waste.

Some forward-thinking people had, of course, wanted to level the viaduct for decades, but they acquired a rationale at the beginning of 2001, when the Nisqually Quake sparked the realization that if the Big One hit, soil could liquify, the viaduct's supports could give way, and the whole double-decker elevated roadway could come crashing down, with several lanes of rush-hour motorists sandwiched between layers of reinforced concrete. Seattle's August referendum that was considered a vote for the tunnel may (or may not) be the end of the dithering. If it is, the process has taken little more than 10 years.

More than eight years before the 1953 opening of the Viaduct, Hanford pioneered the creation of radioactive garbage. The first Hanford reactor went critical in September 1944. The site started turning out plutonium three months later. Until then, no one had generated appreciable quantities of nuclear waste.  So the wartime waste that was dumped into unlined pits and single-walled steel tanks in the desert of central Washington was historic. Is historic: The nastiest stuff is still there.

The state of Washington is trying to get it moved elsewhere. But the state may swimming against the political tide.

At first, nobody even bothered dithering about long-term disposal of the waste as Hanford started filling those cheesy single-walled tanks. The focus was all short-term: build the bombs; win the war. There would be time enough later to do something about the waste.

People were still thinking short-term in 1957, when civilian nuclear power plants started generating waste of their own. Spent reactor fuel rods have been stored ever since in pools of water, glowing the eerie blue of Cerenkov radiation, still waiting for the final solution.

Union of Concerned Scientists nuclear policy expert Ellen Vancko explains, "The reality is, that everybody who lives near a nuclear power plant also lives near a nuclear waste dump."

The serious dithering that led to the continuing reality began roughly half a century ago. Back in the 1960s, the old Atomic Energy Commission decided to stash the waste in a Kansas salt mine — assuming that a salt formation, pretty well by definition, had been isolated from water and therefore sealed from the outside for a long, long time. Then it turned out that oil and gas exploration had punched lots of boreholes into the salt dome. Scratch that idea.

In 1980, the federal government decided on a deep geological disposal. Later in the decade, it started culling possible sites in 36 states, as a step toward creating two depositories, in separate regions. States in the East and Midwest objected. In 1986, the feds narrowed the search to Washington, Texas, and Nevada — and to a single site (would you have wanted to negotiate the politics of storing nuclear waste in Pennsylvania or Ohio?). Nevada was the lucky winner. Nuclear Waste Policy Act amendments of 1987 called for studying and licensing a site at Yucca Mountain.

In 2002, the secretary of energy finally recommended Yucca Mountain. President George W. Bush accepted the recommendation. Nevada's governor vetoed the choice. Congress overrode his veto. Yucca Mountain it was.

Or not. Of course, people in Nevada didn't want it. Neither did the people anywhere else. But at least there weren't a whole lot of Nevadans to worry about, there was lots of space, the federal government owned the land, and the United States had, after all, tested nuclear weapons in Nevada for years, so how bad could this be?

Politically, Yucca Mountain has turned out to be pretty bad. Campaigning in Nevada, Barack Obama said that if he were elected, he'd kill the Yucca project. His administration has tried to do just that. Nevada's Democratic Sen. Harry Reid — now Senate Majority Leader — has applauded the administration's efforts.

State Attorney General Rob McKenna and other Washington officials have not. They have tried to keep the federal government from abandoning the Yucca project. Can their legal arguments reverse the tide?

The political landscape looked different in 1989, when the state Department of Ecology (then directed by Chris Gregoire) signed a Tri-Party Agreement with the the U.S. Department of Energy and the EPA. Under that agreement and a consent decree approved by a federal judge last year, the energy department must get all that high-level radioactive waste out of Hanford storage tanks and embed it in glass at the Waste Treatment Plant (aka the vitrification plant) currently under construction. All the waste is supposed to be treated by 2047 — seven years after all the old single-walled tanks are supposed to be emptied.

But there's a catch: The vitrification plant has been designed to produce glass units that will be stored at Yucca Mountain. The cannisters that hold the glass logs will be the right size, the radiation emitted by each cannister will be within the right range, etc., to meet Yucca Mountain's waste acceptance criteria. Another deep geological depository might have different criteria. Therefore, the waste at Hanford might have no place to go. Or, the vitrification plant might have to be redesigned— and it's getting pretty late in the day to do that. Besides, there is no other deep geological depository for which the design could be changed. The vitrification may be on track to start running in 2022. If it doesn't make that date, there is no chance of meeting the tank cleanup schedule in the consent decree.

"The cleanup would proceed," without Yucca, McKenna has said. "The only question is where the high-level waste would be stored. We have always had the understanding that it wouldn't be at Hanford." Indeed, many people have assumed that the waste would wind up outside Hanford, but "it's not actually spelled out," Assistant Attorney General Andrew Fitz explains. At this point, there is no way to make it happen. The feds never promised to take it away. They promised to clear all that radioactive crud out of the old steel tanks, but they never said they'd get it across the state line. Federal law requires deep geological disposal. And under the federal Nuclear Waste Policy Act, the Department of Energy chose Yucca Mountain. The state has been relying on that law in its litigation against the federal government. But the feds have no specific obligation to the state.

Nor do the feds have a specific plan — except not to store waste at Yucca Mountain. Obama has proposed a national energy strategy that includes a revival of nuclear power, an industry that has not started a new plant since early in the administration of Jimmy Carter. And it's hard to envision much support for the public subsidies — or at least public acceptance of risk — that would still be required. The Union of Concerned Scientists' Vancko wrote last year in The New York Times, "President Obama proposed tripling nuclear loan guarantees to $54 billion from the $18.5 billion the Department of Energy allocated in 2005. The industry, however, wants more. It wants taxpayers to underwrite all the new reactors it wants to build.

"Why loan guarantees?" Vancko asked rhetorically. "Because six top investment firms told the Department of Energy in 2007 that they were unwilling to finance new reactors in light of the industry’s horrible financial track record. Utilities don’t want to take that risk, either. But both would consider new reactors if taxpayers assumed the risk — in the form of federal loan guarantees."

The Union of Concerned Scientists has estimated that subsidies for new nuclear plants might equal anywhere from three-quarters to twice the value of the power produced. "For a single 1,600-megawatt (MW) reactor," it says, "the loan guarantee alone would generate subsidies of $495 million per year, or roughly $15 billion over the 30-year life of the guarantee."

Don't hold your breath. Vancko explains that although "there was a lot of hype about a nuclear renaissance," cost estimates have gone through the roof, the recession has driven demand estimates through the floor, the collapse of climate and energy legislation has done away the vehicle through which subsidies could have been channeled to the industry, and the Fukushima disaster has reminded people all around the world that yes, something can go wrong. All in all, the past decade has "destroyed the economics of this technology," she says.

Still, the Obama administration has advocated building more plants while simultaneously trying to undercut the nation's only project for storing the waste that those plants would produce. Is that inconsistent? The administration evidently believes that having waited this long for a waste depository, there's no harm in waiting a little longer. The NRC chairman has said that it's safe to store waste in pools at reactor sites for 100 years.

It had better be. The political process has been high-centered indefinitely. Meanwhile, Washington (joined by South Carolina, which has decades of waste from plutonium production at Savannah River to worry about) soldiers on in the courts.

Early last year, the administration announced that the Department of Energy would withdraw the application, and the president named a Blue Ribbon Commission on America's Nuclear Future to work out Plan B. The DOE subsequently moved to withdraw the application with prejudice, which would mean it couldn't be re-opened.

The motion to withdraw it went first to the NRC's Atomic Safety and Licensing Board, before which the state of Washington testified that the administration couldn't legally just decide to bag the Yucca project. The state argued that the "plain and unambiguous language of the NWPA requires that once a repository site has been 'approved,' both DOE and the NRC must follow through with the construction authorization application process until a decision on the merits is reached. . . . Congress has commanded that upon approval of a repository site, DOE 'shall submit to the [NRC] an application for a construction authorization for a repository at such site,' and that the NRC 'shall consider an application for a construction authorization for all or part of a repository' and 'shall issue a final decision approving or disapproving the issuance of a construction authorization.'”

Last June, the board denied the administration's motion. It observed that the Nuclear Waste Policy Act "does not give the secretary [of energy] the discretion to substitute his policy for the one established by Congress."

But, of course, the DOE appealed the ruling to the NRC, which took its time about issuing a decision. Last Friday (Sept. 9), the NRC finally acted. Kind of.

Washington state didn't just sit on its hands, and wait for a decision. It asked the D.C. Circuit Court to declare that the NRC couldn't consider and the DOE couldn't pursue its decision to scrap Yucca, because that decision would violate the Nuclear Waste Policy Act (the executive branch couldn't just unilaterally abandon a process mandated by Congress), the National Environmental Policy Act (the executive branch couldn't abandon it without an environmental impact statement), and the Administrative Procedure Act (the executive branch couldn't abandon it without creating a record). This July, the court ruled that since the NRC hadn't yet decided on either the merits of the DOE's application or the DOE’s motion to withdraw it, the case wasn't ripe for review.

After that ruling, the state asked the court for a writ of mandamus, ordering the NRC to decide. It argued that Congress had specified a process, that process had chosen Yucca, and the administration couldn't just decide, without articulating a reason, to bag the permitting process. "You don't completely cut the legs out from under the existing effort," Fitz said, "unless you've reached a determination on the merits."

The NRC still hasn't done that. In its decision last week, it deadlocked 2-2 but ordered the Atomic Safety and Licensing Board to wrap things up at Yucca Mountain by the end of the fiscal year. Exactly what this all means isn't clear. Fitz has written to the NRC's counsel asking for clarification. In the meantime, going by the NRC's own rules, "my interpretation is that the lower order . . . is left intact." Fitz notes that according to the press, at least one NRC commissioner agrees.

Does Fitz himself agree that the NRC's decision, whatever it means, makes the state's request for mandamus moot? Not at all. "I would not concede that," he says. "We will still argue that they still need to be considering DOE's application." This means following all the statutory steps. Merely "saying that you're not going to do it at all is in clear contradiction to the statutory mandate."

But he concedes that the president's budget includes no money for going forward with Yucca — although the continuing resolution Congress passed in April may contain a bit. "I think it's in our interest to try to move fairly expeditiously," he says, at least "in part because of the speed with which the NRC is closing out" the process. Obviously, he says, "the more steps you take to distance yourself from what the statute tells you to do, the harder it is to get back to that point."

Politically, Vancko says, "Yucca is off the table. Nothing else is on the table." In other words, the administration isn't even dithering. It's trying to fulfill a campaign promise and please the constituents of Senate Majority leader Harry Reid. "Administratively, the process has been dismantled," Fitz says. It would take years to re-start it — if anyone wanted it re-started. The Blue Ribbon Commission hasn't proposed an alternative. Did anyone expect it to? "That's why we have a blue ribbon commission," Vancko says. "When you don't want to do anything, you appoint a commission."

This commission has proposed an aspiration and an approach. Finding somebody willing to take Son of Yucca "means encouraging communities to volunteer to be considered to host a new nuclear waste management facility while also allowing for the [new] waste management organization to approach communities that it believes can meet the siting requirements," the commission said. Step right up, folks.

The commission has acknowledged that this approach would take a lot of time. "The approach we recommend . . . recognizes that successful siting decisions are most likely to result from a complex and perhaps extended set of negotiations between the implementing organization and potentially affected state, tribal, and local governments, and other entities," the commission explained. "All siting processes take time; however, an adaptive, staged approach may seem particularly slow and open-ended. This will be frustrating to stakeholders and to members of the public who are understandably anxious to know when they can expect to see results. The Commission shares this frustration — greater certainty and a quicker resolution would have been our preference also. Experience, however, leads us to conclude that there is no short-cut."

By this time, anyone who expects a short cut hasn't been paying attention. Last year, Attorney General Rob McKenna suggested that if the nation abandons Yucca Mountain and if the history of the Yucca Mountain project is any guide, it "sets us back a minimum of 30 years." Minimum is right. Let's say it does take 30 years. By that time, Hanford's oldest waste will be nearing the century mark. The nation's oldest civilian waste will be going on 85. But hey, some of that stuff will stay radioactive for the next 100,000 years. What's the rush?


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.