Trump Plan to Engage States on Nuclear Waste Surfaces Old Hurdle

The Trump administration’s growing nuclear energy push now includes enlisting state help handling spent fuel, a politically tricky issue with a history of facing legal obstacles.

The Department of Energy has been talking to states informally about working with the nuclear fuel cycle, and it’s also considering a request for information to gauge states’ interest in doing so, according to a person familiar with the agency’s plans.

While the specifics of those plans aren’t clear, the law says Nevada’s Yucca Mountain is the go-to permanent storage site for spent fuel. Any change to that would require an update to the law.

Nuclear energy is currently riding a wave of policy support at the federal and state level. States have enacted policies in support of the industry, and some have repealed bans on new plants. The energy source is seen as part of the solution for the rise in electricity demand fueled by data centers, with public support for nuclear among the highest it’s been, some polling shows.

“The community buy-in is absolutely kind of the biggest piece to all this,” said Ross Matzkin-Bridger, senior adviser for the Nuclear Scaling Initiative. “It is a matter of are communities comfortable with this in their neighborhoods.”

The DOE didn’t respond to a request for comment on the details of its plans.

Learning From Nevada

The Nuclear Waste Policy Act of 1982 requires the Energy Department to build a deep geologic repository for the disposal of high-level waste and spent nuclear fuel. It was later amended to direct the agency to primarily consider Yucca Mountain, nestled around 100 miles northwest of Las Vegas.

The waste law allows governors to veto proposed storage sites, but Congress can overturn that veto—which is what happened with Nevada.

However, the project still fell through because former Senate Majority Leader Harry Reid (D) opposed it. His unique position in Congress gave him the leverage required to stop the storage site from moving forward in his state, showing how critical state support is, said Jay Silberg, a partner at Pillsbury Winthrop Shaw Pittman LLP.

“We want states to welcome that repository,” said Sam Thernstrom, president of the Energy Innovation Reform Project. “That’s obviously a lesson of Yucca—that ignoring the politics of the host community is not a viable strategy.”

Without a permanent repository, the federal government has paid companies hundreds of millions of dollars each year for on-site storage.

Some states have their own laws focused on addressing spent fuel storage within their borders.

Oregon, for example, has a law saying a state council has to find a place to store spent nuclear fuel before a site certificate is issued for a nuclear power plant. In Maine, the Public Utilities Commission can only approve a nuclear plant if there’s a permanent place to store the plant’s used fuel. Connecticut and California also have similar policies, according to the National Conference of State Legislatures.

On top of working with states, the Trump administration might need to further engage with Congress on the issue, Thernstrom said.

If the administration ends up choosing areas that aren’t the most appropriate for storage sites, “that may or may not have legal vulnerabilities,” he added.

Legal Back and Forth

There have already been multiple attempts to revamp spent fuel strategies.

A DOE commission published a report in 2012 recommending the formation of a new organization to implement a spent fuel management program. That same concept was brought up again in a report published in January.

“They’re just repackaging the same ideas,” said Kevin Kamps, who specializes in high-level waste management and transportation at Beyond Nuclear, an anti-nuclear nonprofit.

Any new institution will require a change in law, he said.

The Nuclear Regulatory Commission has awarded licenses to a few companies to temporarily store used fuel, but those approvals have faced court challenges.

“There’s explicit language in that law that says you can’t have a private storage company storing Department of Energy owned spent nuclear fuel at a private facility,” Kamps said, referring to the waste act.

Beyond Nuclear challenged the approved licenses for storage facilities in Texas and New Mexico, but the cases were decided—and the licenses upheld—on procedural issues rather than on the merits of what the law says about handling storage.

Even though the answer of where to store spent nuclear fuel long-term remains up in the air, money has already been set aside for the concept. Utilities had been required to pay into a pot of money intended for spent fuel storage that now totals tens of billions of dollars, NSI’s Matzkin-Bridger said. A federal appeals court in 2013 ruled the government had to stop collecting money for the fund until it determined where the spent fuel would go.

“Hopefully Congress will figure out a way—and there are many ways they can accomplish it—that that money will be used for the purpose that it was collected for,” Silberg said.

Today’s State of Play

Several executive orders from President Donald Trump indicated an interest in recycling spent fuel, but energy analysts say the cost of that technology presents hurdles.

And then there’s the administration’s broader goals of significantly expanding US nuclear power capacity four times what it is now by 2050.

“It seems like we’re likely to bring new reactors online, and so, the waste burden is going to grow at a faster rate,” Thernstrom said. “It makes it more incumbent that we ought to address this issue in some sensible, long-term way,” he said.