Nuclear Waste Confidence: Is Indefinite Storage Safe?

Robert Vandenbosch and Susanne E. Vandenbosch

On Aug 26, 2014 the waste confidence rule was updated and the name changed. Waste Confidence refers to a finding by the Nuclear Regulatory Commission that spent fuel1 from nuclear reactors can be safely isolated from the environment, either until a final disposal repository becomes available or in the new ruling for an indefinite period of time. Its main effect is to allow resumption of licensing of new reactors and extension of the licenses of currently operating reactors. Like the first waste confidence rule of 1984, the 2014 rule was passed in response to a court order.2 This latter court order came in the context of the failure of the United States to complete licensing activities for a repository at Yucca Mountain in Nevada.3 The Nuclear Regulatory Commission was ordered to develop a waste confidence rule that included the possibility there would never be a repository.4 The court ruled that the need for updating the waste confidence rule was the failure of the previous rule to satisfy all the provisions of the National Environmental Protection Act.5 This led the Nuclear Regulatory Commission to evaluate various environmental impacts6 for three time frames7.

The Nuclear Energy Institute (NEI), the nuclear power industry’s trade association, was pleased with the issuance of the new rule. Ellen Ginsburg, NEI’s Vice President, said “the completion of this rulemaking is an important step that will facilitate final agency decisions on pending industry licensing actions such as license renewals of operating reactors and early site permitting for new reactors.”8 In contrast, Geoffrey Fettus, lead counsel for the Natural Resources Defense Council, one of the petitioners in the Court case, issued the following statement: “The Nuclear Regulatory Commission failed to analyze the long-term environmental consequences of indefinite storage of highly toxic and radioactive nuclear waste; the risks of which are apparent to any observer of history over the past 50 years. The Commission failed to follow the express directions of the Court.”9

The origin of this action so soon after the establishment of the 2010 rule (which in turn dates back to the first waste confidence decision in 1984) was a lawsuit challenging the 2010 rule filed by several eastern states, several public interest groups and the Prairie Island Indian Community. The suit, New York v. NRC, claimed that the Nuclear Regulatory Commission failed to comply with NEPA, the National Environmental Protection Act. The Court ruled that the rulemaking in fact did not fully comply with the Act, and vacated the 2010 rule and Decision.10 The Court identified two kinds of deficiencies in the Nuclear Regulatory Commission’s analysis. The first has to do with the assumption regarding the eventual final disposal of spent fuel in a repository. The 2010 rule had stated that “the Commission believes there is a reasonable assurance that sufficient mined geologic repository capacity will be available to dispose of the commercial high-level radioactive waste and spent fuel……when necessary”.11 The Court held that the Commission needed to examine the environmental effect of failing to ever establish a repository. The second kind of deficiency is related to inadequate examination of the risk of spent fuel pool leaks and fires. We will be focusing on the repository availability issue in the present discussion. First we will review the origin of a nuclear waste confidence decision.

The general context of a waste confidence decision has to do with whether it is proper to license reactors that will produce waste that could provide a long-lasting threat to the health and safety of the public. The supporting document for the 2014 rule and decision update, “Generic Environmental Impact Statement of Continued Storage of Spent Nuclear Fuel” (NUREG-2157)12, gives a brief history of waste confidence rulemaking. Like the present update, this issue came to a head as a result of a Court of Appeals remand to the Commission, in this case in response to a suit Minnesota v. NRC decided in 1979.

In response to the 1979 remand, the Commission issued its first Waste Confidence Decision in 1984. It found “reasonable assurance that safe disposal of high level radioactive waste and spent fuel in a mined geologic repository is technically feasible” and that “one or more mined geologic repositories…. will be available by the years 2007-09, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license…”. It furthermore found “reasonable assurance that…spent fuel generated in any reactor… can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor’s operating licenses…”.13

In 1990 the Commission revisited the waste confidence issue, and in the light of the slow progress on developing a repository issued a revised finding that they had reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twentieth century. They also broadened their reassurance about safe storage for thirty years beyond the original licensed life to include that of renewed or revised licenses.14

By the time of the 2010 revision the Obama administration had declared Yucca Mountain “not workable” and any prospect for a geological repository seemed remote. As mentioned above, the response of the Commission was to say that it “believes there is reasonable assurance that sufficient mined geologic repository capacity will be available ….. when necessary”. It also made a generic determination that spent fuel can be stored safely for at least 60 years beyond the licensed life of a reactor. In 2013 Alley and Alley characterized the approach to waste confidence as one that “looks like shooting an arrow at a wall, drawing a bulls-eye around it, and proclaiming yourself an excellent marksman”.15 The 2014 version, no longer with the title “Waste Confidence”, fits in with this progression. Pressed by the Court, it considers three time frames including the possibility that a repository never becomes available. The 2014 rule no longer contains a statement corresponding to the 2010 statement “…spent fuel…..can be stored safely and without environmental impacts for at least 60 years beyond the licensed life for operation…”, but rather simply states that the “Commission has generically determined that the environmental impacts of continued storage of spent nuclear fuel…are those impacts identified in NUREG-2157, ‘Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel’”.16 This generic environmental impact statement, (GEIS) is 1300 pages long and difficult to summarize.

The GEIS breaks the environmental impacts considered into 20 categories, from Land Use to Public and Occupational Health, Accidents, and Sabotage or Terrorism. Each of these categories are evaluated for three assumed timeframes for storage before availability of a repository. The short term time frame assumes a repository will be available within 60 years after termination of a reactor’s operating lifetime, the long-term 160 years, and an indefinite timeframe which assumes that a repository never becomes available. The Commission considers the short-term timeframe to be the most likely scenario17. The indefinite timeframe was included in response to the Court order.

For each category and for each timeframe the GEIS rates the impacts as small, moderate or large. The general definitions of significance levels are:18

SMALL: The environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that radiological impacts that do not exceeded permissible levels in the Commission’s regulations are considered small.

MODERATE: The environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource.

LARGE: The environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource.

For most categories the impacts were declared to be small for all three timeframes. Exceptions included Air Quality for short timeframes, Historic and Cultural Resources and Aesthetics for all timeframes, and Traffic for away-from-reactor storage for long and indefinite timeframes.

The most important issue is the question of when or if a geological repository will become available for final disposal. The NRC believes that a repository is “most likely” to become available during the shortest of the three time frames considered.19 Commission Chairman Allison Macfarlane in her notational vote20 questioned that conclusion and asked that statements in the GEIS and Federal Register notice be revised to characterize repository availability in the near-term as “one reasonable scenario” rather than the “most likely scenario”.21 This request was apparently not accepted by the majority of the Commissioners and the original language remained in the final GEIS and Federal Register notice. A related issue is whether institutional control will be exercised over the long term. In evaluating the environmental impacts for this timeframe it was assumed that institutional control would remain throughout the indefinite timeframe.22 But the GEIS goes on to acknowledge that “although too remote to calculate meaningfully, a permanent loss of institutional controls would likely have ‘catastrophic consequences’”. (Commissioner Magwood objected to this wording, but it was not changed in the final GEIS). It is important to remember that there is a long-standing international consensus that deep geological final disposal of nuclear waste is required. This consensus is partly in response to concerns that it is impossible to assure indefinite institutional controls on surface storage facilities. US policy to provide for permanent disposal in a geological repository was formalized by passage of the Nuclear Waste Policy Act of 1982.

With the assumption that institutional controls will remain indefinitely, and that canisters and casks would be replaced about every 100 years, the GEIS concludes that environmental effects on public and occupational health (including radiological effects) would be SMALL (capitalization in GEIS). This is a rather remarkable assumption and conclusion for the Nuclear Regulatory Commission to incorporate into a Rule. It is based on a much more limited analysis and much less restrictive radiation standardsthan are in place for a deep geological disposal facility such as are applicable to the pending Yucca Mountain repository. Chairman Macfarlane hinted at this in a statement in her notational vote: “if the environmental impacts of storing waste indefinitely on the surface are essentially small, then is it necessary to have a deep geologic disposal option?”23. However her request that the staff should fully evaluate the potential range of environmental impacts for indefinite, no-repository storage under two scenarios- keeping and losing institutional control, was not accepted by the Commission.

The public may not share the confidence of the Nuclear Regulatory Commission about nuclear waste confidence. There is also concern that the Commission’s action in approving this rule and supporting Generic Environmental Impact Statement may undermine the already precarious governmental support for addressing properly the nation’s nuclear waste problem. A Blue Ribbon Commission, established by the Obama Administration after their request to withdraw the Yucca Mountain repository license application, urged prompt action on their recommendations which require some congressional action. Among their recommendations was prompt action to develop another geological repository.  A bill to implement their recommendations is languishing in a Senate committee.

Robert Vandenbosch is Professor Emeritus of Chemistry and former Director of the Nuclear Physics Laboratory at the University of Washington.

Susanne E. Vandenbosch has publications in Physical Review, Nuclear Physics and more recently in Political Science journals. She is co-author with Robert Vandenbosch of “Nuclear Waste Stalemate: Political and Scientific Controversies” (University of Utah Press), 2007

1 Spent fuel is also referred to as radioactive waste, nuclear waste, and more recently used fuel. It includes fission products and actinide elements produced by fission and neutron capture. Fission of Uranium-235 splits the nucleus into two unequal parts and fast neutrons. Some of the isotopes of these elements are radioactive. Some isotopes of particular concern are Iodine-131 with a 8 day half-life and Cesium-137 with a 30 year half-life. Some of the neutrons produced in the fission process are captured by Uranium-238 to form Neptunium-239 which undergoes beta decay to form Pu-239. Pu-239 after chemical separation from other elements in the irradiated nuclear fuel can be used to produce a bomb and therefore poses a proliferation risk. Neutrons also produce Neptunium-237, with a 2 million year halflife.

2 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012 (ADAMS Accession No. ML 12191A407)

3 This repository site was selected in 1987 with passage of the Nuclear Waste Policy Amendments Act by congressional conference committee. See Chpt. 5 in Vandenbosch, Robert, and Susanne E. Vandenbosch, “Nuclear Waste Stalemate: Political and Scientific Controversies”, University of Utah Press, 2007.

4 Referring to a possible failure to ever establish a geologic repository, the Court said “The Commission can and must assess the potential environmental effects of such a failure.” P. 13, New York v. NRC. To the average person and certainly the attentive public this may seem like a ludicrous assignment as well as unnecessary. A committee of the National Research Council has suggested evaluating the ability of a geological repository, the Yucca Mountain repository in Nevada, from the perspective of environmental impacts until the time of peak risk. For Yucca Mountain they suggested this would likely be longer than 10,000 years. This is a more manageable frame than the indefinite period suggested by the court. (See National Research Council, Technical Basis for Yucca Mountain Standards, 1995).

5 Pp. 7, 21 of New York v. NRC.

6 These were land use, socioeconomics, environmental justice, air quality, climate change, geology and soils, surface water quality, surface water quality and consumptive use, groundwater quality and consumptive use, terrestrial resources, aquatic ecology, special status species and habitats, historic and cultural resources, noise, aesthetics, waste management of LLW, mixed waste and nonradioactive waste, transportation traffic and health impacts, public and occupational health , accidents, and sabotage or terrorism. The Nuclear Regulatory Commission estimated whether the impacts would be SMALL, MODERATE OR LARGE for each of these categories.

7 A short term time frame assumes a repository will be available within 60 years after termination of a reactor’s operating lifetime, the long-term 160 years, and an indefinite timeframe which assumes that a repository never becomes available.



10 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012 (ADAMS Accession No. ML 12191A407)

11 Section 51.23(a), Federal Register 75 FR 81037, Dec. 23, 2010


13 Federal Register 49 FR 34658, August 31, 1984

14 Federal Register 55 FR 38472, September 18, 1990

15 “Too Hot to Touch: The Problem of High-Level Nuclear Waste” William M. Alley and Rosemarie Alley, Cambridge University Press, New York, 2013. p. 117.

16 Section 51.23(a), Federal Register 75 FR 81037, Dec. 23, 2010

17 Nuclear Regulatory Commission, Continued Storage of Spent Nuclear Fuel, 79FR 56245, September 19, 2014.

18 Nuclear Regulatory Commission, Continued Storage of Spent Nuclear Fuel, 79FR 56246, September 19, 2014.

19 P. xxx of Executive Summary, GEIS September, 2014 and in final Federal Register rule, Federal Register 79 FR 56245, Sept. 19, 2014

20 The Nuclear Regulatory Commission has a rather unique way of voting. Commissioner’s record their vote, which may include partial as well as full approval of a proposal, and supporting documentation and specific suggestions for any requested changes. These are circulated among the Commissioners prior to a final vote.

21 P. 3, “Chairman Macfarlane’s Comments on SECY-14-0072 “Proposed Rule: Continued Storage of Spent Nuclear Fuel”, Aug. 7, 2014, released as Commission Voting Record on Aug. 26, 2014.

22 P. xxxi of Executive Summary, GEIS September, 2014

23 P. 1, “Chairman Macfarlane’s Comments on SECY-14-0072 “Proposed Rule: Continued Storage of Spent Nuclear Fuel”, Aug. 7, 2014, released as Commission Voting Record on Aug. 26, 2014.

These contributions have not been peer-refereed. They represent solely the view(s) of the author(s) and not necessarily the view of APS.