The Problem of Reprocessing Spent Fuel: If Laws Cannot Solve the Problem, is Technology the Answer?

I. Introduction

Shippingport Atomic Power Station was the first large-scale civilian atomic power plant to open in the United States. It began generating electricity for commercial use on December 18, 1957, and was officially opened on May 26 of the following year by President Dwight D. Eisenhower.[1] As more nuclear plants were built and put into operation, a major concern became what to do with the by-product of the nuclear process, or spent fuel (waste).[2] The waste from nuclear plants must be stored because most of the waste gives off radiation and will continue to do so during the decaying process, which can last thousands of years.[3]There are, however, political, legal, financial, and environmental concerns with the storage of nuclear waste.

An alternative to storing this waste is reprocessing the spent fuel to create more energy and lessen both the amount of waste needing storage and the half-life of the waste.[4]This technique is used heavily in several nuclear countries, including France; however, the United States does not reprocess its spent fuel.[5] The reasons are similar to those that plague the storage of nuclear waste and the nuclear industry in general, as they are political, legal, financial, and environmental in nature. These reasons involve not only American domestic nuclear policy and domestic opinion, but also American foreign nuclear policy and foreign opinion by way of nuclear non-proliferation.[6]

In today’s world of rapidly-changing technology and heavily emphasized greener energy, it is crucial to consider all avenues of cleaner energy, including nuclear. Reprocessing spent nuclear waste is a viable option, but, in considering its viability, one must understand the technology and why it is so controversial.

II. Reprocessing Spent Fuel

Conventional nuclear plants produce waste that contains uranium and other materials.[7]Integral Fast Reactors (IFRs) are one kind of reactor that could deal with the waste product of these plants by reprocessing the waste from the conventional plants.[8] In reprocessing, these IFRs first separate the waste into uranium and other materials by using a molten salt bath and electricity.[9] The separated elements then fuel the IFRs. While this process is still associated with a degree of waste, the resulting waste is significantly less than the current waste amounts from conventional plants. Compared to the currently required amount of time for storing nuclear waste, the smaller amount of waste resulting from use of IFRs requires a fraction of storage time (hundreds of years as opposed to thousands).[10] GE Hitachi has designed such a sodium-cooled reactor, known as PRISM; however, this technology has not been approved for use in the United States.[11]

One of the major reasons the United States has not approved this technology is that this process produces plutonium as a by-product.[12] This plutonium by-product is used in creating nuclear weapons. The United States fears this resulting by-product because of the risk of the unwanted spreading of nuclear materials.[13]Furthermore, the United States may fear that its own engaging in reprocessing may be seen as a green light for nations with poor nuclear records, like Iran and North Korea, to do the same.[14] The United States is one of the major nuclear powers in the world, and knowledge of its unique history and relationship to the nuclear industry is key for understanding this second concern.

III. Nuclear Non-Proliferation

The nuclear industry in the United States began developing in the mid-20th century for primarily military purposes.[15] The bombings of Hiroshima and Nagasaki stunned the world, and drove nuclear countries into an all-out arms race. Having seen the destruction that could come from nuclear weapons, the major nuclear states came together to sign the Nuclear Non-Proliferation Treaty in 1968. The main purpose of the Treaty was to stave off further development of nuclear weapons while encouraging the development of nuclear technology for peaceful purposes, such as energy.[16] In the wake of this treaty, the signing nations began building nuclear plants in order to provide electricity in Europe and the United States.

When these plants became operational the benefits of nuclear power were easily seen. Nuclear plants, unlike coal-powered plants, do not release high levels of carbon and result in overall significantly less air pollution.[17]However, as discussed above, the storage of spent fuel or waste from nuclear plants present their own environmental questions. Several countries, including France, have addressed this problem by engaging in reprocessing the spent fuel to limit both the amount of waste needing storage and the decay periods for this waste.[18]

The United States, as not only a signing nation but also a depository nation,[19] has a duty to uphold the precepts of the treaty. It would be politically-difficult for the United States to tell North Korea or Iran not to reprocess spent fuel and then begin to reprocess on its own. In addition to the international politics and the valid environmental concerns related to reprocessing, the United States must also face the challenges presented by the public’s perception of the nuclear industry as a whole.

IV. Public Perception

Aside from non-proliferation goals, there have been several incidents that have had a chilling effect on the nuclear industry in the United States.[20] In 1979, there was an accident at the reactor at the Three Mile Island nuclear plant in Pennsylvania.[21] This accident, while not having major detrimental effects, did give rise to serious concern and regulation of the safety procedures in nuclear plants.[22] In 1986, the reactor at the nuclear power station in Chernobyl was destroyed and caused the release of massive quantities of radioactive material into the surrounding area.[23] This accident, unlike Three Mile Island, had significant impacts on the surrounding population of people, animals, and plant life, including the deaths of two plant workers initially and twenty-eight subsequent deaths, resulting from acute radiation poisoning, in the weeks following the accident.[24] Most recently in 2011, the world saw another nuclear disaster at Fukushima when a major earthquake disabled power to the cooling systems of three of the reactors causing the cores to melt and causing radioactive releases.[25] This accident triggered the evacuation of over 100,000 people.[26]

The events at Three Mile Island, Chernobyl, and Fukushima, have changed the once positive attitude towards peaceful development of nuclear technology.[27] The public has seen the danger in utilizing nuclear energy, and concerns with terrorism have further affected the public’s view on reprocessing spent fuel from nuclear plants.[28] This perception in turn has affected government hesitation to further develop the reprocessing technology.[29] The legal standing of the nuclear waste storage in the United States; however, makes reprocessing an increasingly attractive option.

V. Legal Conditions Favoring Reprocessing Nuclear Waste

Federal action surrounding the disposal of nuclear waste has been shaky at best. In the last few decades there were seemingly positive developments in choosing a permanent long-term storage site.  However, these developments have been all but completely eroded as of today.

Congress passed the Nuclear Waste Policy Act (NWPA) in 1982 to address the storage concerns, which provided that the government would research and come up with a list of possible long-term storage facilities.[30] In 1987, Congress designated Yucca Mountain outside of Las Vegas as the site for permanent storage.[31] This was a highly controversial decision not only because Nevada government officials and citizens fiercely opposed it, but also by designating Yucca Mountain as the site, the NWPA precluded other sites from being designated for short-term storage purposes until the waste site was licensed.[32] This means that the government is precluded from removing waste from nuclear plants since the Yucca Mountain site has not been licensed.[33]

Furthermore, the NWPA established the Nuclear Waste Fund (NWF), which would pay for the disposal of waste from commercial nuclear facilities.[34] The DOE then entered into contracts with private companies who generate spent fuel. The contracts provided that the DOE would take title to this spent fuel, and in return the companies would make an annual contribution to this fund.[35] The DOE was supposed to have started collecting this waste in 1998, but that never happened.[36] Many of these companies have brought breach of contract claims against the DOE, and have won.[37] The Court of Appeals for the DC Circuit ruled in November of 2013 that the DOE could no longer collect this annual fee until it began accepting the waste.[38]

The real death knell to the Yucca Mountain site rang when President Obama was elected into office, as he ran on a platform of opposing a permanent waste storage at the site and has since acted in accordance with this promise.[39]Furthermore, under the Obama Administration, the Department of Energy (DOE) decided to withdraw its licensing application from the Nuclear Regulatory Commission (NRC) for the Yucca Mountain site in 2010.[40] The NRC suspended the licensing process in September of 2011 due to uncertainty over available funds for the licensing process.[41] The Obama Administration did not request funding for fiscal year 2012 for the Yucca Mountain site nor has it since, which essentially means that the proceedings with the NRC had ceased. In August of 2013, however, the DC Circuit granted a writ of mandamus, which ordered the NRC to, continue with the legally mandated licensing process,[42] as there remained eleven million dollars with which to continue the proceedings.[43] The impact of this order is uncertain; however, the Court did note that forcing the NRC to spend this money may not be the best course of action if Congress will not continue to fund the project.[44] The NRC has not accepted the DOE’s motion to withdraw.[45]

The effect of these latest actions is that the nuclear industry is at a halt for disposing of its spent fuel. With a long-term storage option held up by a political divisions and short-term option held up by an absurd statutory result, the need for an alternative solution is pronounced. There is room in this debate for serious discussion about reprocessing, even given the concerns with this technology.[46] There are several countries that reprocess their spent fuel successfully and have not seen serious political backlash.[47] Moreover, new technology in this area could help to quell nonproliferation and terrorism concerns, as this technology, known as UREX+, could keep the uranium and plutonium together during reprocessing instead of separating out pure plutonium.[48] This technology has the potential to set a clear precedent for the United States peacefully reprocessing spent fuel, which could actually benefit nonproliferation efforts, especially towards unruly nations like Iran and North Korea. Further addressing the nonproliferation concerns, this technology, in theory, may make it more challenging for terrorist groups to steal and use the plutonium for nuclear weapons.[49]

VI. Conclusion

Non-proliferation and public policy concerns have had a tremendous effect on the nuclear industry as a whole, and reprocessing specifically in the United States. The current debate in the United States is about what to do with the spent nuclear fuel and lawmakers are far from having a solution. Changing presidential administrations, congressional inefficiencies, and state opposition have created a significant and pressing question of what to do with the spent fuel. This stalemate is a clear reason why the reprocessing option should be reconsidered. Despite the nonproliferation concerns, a perhaps more pressing concern is the tons of waste that are currently piling up among the various nuclear reactor sites. The possibility of a long-term storage site seems dismal at best. A new solution is necessary, instead of this regression into persistent inaction. While reprocessing would not magically solve the waste management problem, at this point it is a necessary step in the right direction.

Preferred citation: Charlotte Goudeau, The Problem of Reprocessing Spent Fuel:  If Laws Cannot Solve the Problem, is Technology the Answer? LSU J. Energy L. & Res. Currents (March 12, 2014), http://sites.law.lsu.edu/jelrblog/?p=430.

 

[1] Willis L. Shirk, Jr., “Atoms for Peace” in Pennsylvania, Pennsylvania Heritage Magazine (Spring 2009), available athttp://www.portal.state.pa.us/portal/server.pt/community/history/4569/it_happened_here/471309.
[2] Chuck McCutcheon, Can Nuclear Waste Spark an Energy Solution?, National Geographic (Sept. 1, 2010), available at http://news.nationalgeographic.com/news/2010/08/100831-can-nuclear-waste-spark-an-energy-solution/.
[3] Id.
[4] Id.
[5] Id.
[6] See discussion infra Part III.
[7] McCutcheon, supra note 2.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Mark D. Godfrey, The Continuing Burden of Short-Sighted Nuclear Waste Policy, 19 J. Envtl. & Sustainability L. 151, 177 (2012) (it would be an unsavory political move for the United States to tell other nations to refrain from reprocessing, while engaging in that behavior itself).
[15] Office of Nuclear Energy, Sci., and Tech., U.S. Dep’t of Energy, DOE/NE-0088, The History of Nuclear Energy, 7 (1994).
[16] Treaty on the Non-Proliferation of Nuclear Weapons, preamble, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter Non-Proliferation Treaty].
[17] Marianne Lavelle, New Nuclear Energy Grapples With Costs, National Geographic (May 20, 2010), http://news.nationalgeographic.com/news/2010/05/102005-new-nuclear-energy-grapples-with-costs/.
[18] Katherine Ling, Is the Solution to the U.S. Nuclear Waste Problem in France?, The New York Times (May 18, 2009), http://www.nytimes.com/cwire/2009/05/18/18climatewire-is-the-solution-to-the-us-nuclear-waste-prob-12208.html?pagewanted=all.
[19] Depository nations are those that receive the requests by non-member nations who wish to sign on to the treaty. Non-Proliferation Treaty, supra note 16, art IX.
[20] Id.
[21] Three Mile Island Accident, World Nuclear Association (Jan. 2012), http://www.world-nuclear.org/info/Safety-and-Security/Safety-of-Plants/Three-Mile-Island-accident/.
[22] Id.
[23] Chernobyl Accident 1986, World Nuclear Association (Jun. 2013), http://www.world-nuclear.org/info/Safety-and-Security/Safety-of-Plants/Chernobyl-Accident/.
[24] Id.
[25] Fukushima Accident, World Nuclear Association (Jan. 13, 2014), http://www.world-nuclear.org/info/Safety-and-Security/Safety-of-Plants/Fukushima-Accident/.
[26] Id.
[27] Godfrey, supra note 14, at 176.
[28] Chuck McCutcheon, Can Nuclear Waste Spark an Energy Solution?, National Geographic Daily News (Sept. 1, 2010), http://news.nationalgeographic.com/news/2010/08/100831-can-nuclear-waste-spark-an-energy-solution/.
[29] Id.
[30] Alex Funk & Benjamin K. Sovacool, Comment, Wasted Opportunities: Resolving the Impasse in United States Nuclear Waste Policy, 34 Energy L.J. 113, 119-120 (2013).
[31] Id. at 121.
[32] Id. at 120.
[33] Bret Kupfer, Note, Agency Discretion and Statutory Mandates in a Time of Inadequate Funding: An Alternative to In Re Aiken County, 46 Conn. L. Rev. 331, 339 (2013).
[34] Funk, supra note 30, at 120-121.
[35] Id.
[36] Id.
[37] Id.; Kupfer, supra note 33, at 341-42.
[38] National Ass’n of Regulatory Utility Com’rs v. U.S. Dept. of Energy, 736 F.3d 517, 521 (D.C. Cir. 2013).
[39] Kupfer, supra note 33, at 340-41.
[40] Funk, supra note 30, at 125.
[41] Id. at 126.
[42] In re Aiken County, 725 F.3d 255, 266-67 (D.C. Cir. 2013).
[43] Kupfer, supra note 33, at 343.
[44] In re Aiken County, 725 F.3d at 267.
[45] Funk, supra note 30, at 126.
[46] Id. at 141-142.
[47] Id. at 140.
[48] Id.
[49] Id.
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