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Ruling Could Help Break the Nuclear-Waste Logjam by Christopher Joyce National Public Radio, June 13, 2012

"The federal government has our money; we have their waste."

The federal government promised almost 30 years ago to find a place to bury nuclear waste from power plants. It hasn't. So the waste is piling up at power plants around the country.

Now a federal court says the government must prove that this temporary solution is truly safe. The decision could help break the nuclear-waste logjam.

Most people agree that used nuclear fuel, which is highly radioactive, needs to be disposed of forever. But that's proving easier said than done. The government spent billions digging a giant hole for waste at Yucca Mountain in Nevada. Then President Obama canceled that project in 2009. The nuclear industry and many Republicans in Congress are fighting the administration to reverse that decision.

In the meantime, 70,000 tons of spent fuel sits mostly at power plants. Where it goes next, nobody knows.

Lawyer Geoffrey Fettus of the Natural Resources Defense Council helped convince the federal appeals court in Washington, D.C., to tell the government this solution may not be safe.

"They're going to have to look at the environmental impacts of long-term storage on-site, potential disposal options, as well as the potential that they never even get a meaningful long-term disposal option," he says.

The Nuclear Regulatory Commission has argued that the waste is OK where it is -- even for 60 years after a power plant closes. The NRC also says it will keep its promise to find a permanent waste dump "when necessary."

But the appeals court says: Prove it. The NRC "apparently has no long-term plan other than hoping for a geologic repository," the court ruled in a unanimous decision. Nuclear fuel could stay where it is permanently, the court surmised, so NRC must assess the potential environmental effects of that outcome.

Nuclear critics such as Fettus say an environmental review will have to focus on the spent fuel that sits in big water-filled pools at power plants. The water keeps the radioactive fuel from overheating and possibly burning. "We've been fighting for years with the NRC," he says, "urging them to require moving fuel from the pools as soon as it's able. The NRC so far has refused to do this."

Utility companies have moved fuel out of pools into dry casks of steel and concrete. These are widely viewed as safer than pools. But most waste, at least three-quarters of it, is still in pools, many of which are packed to the legal limit. And the waste just keeps coming. Over the next 40 years, the amount of spent fuel is expected to double.

Albert Machiels, a waste expert at the utility industry's Electric Power Research Institute, says the public didn't expect local power plants to become de facto dumps.

"I think that it has a really large impact on the local communities," he says. "They never bought into the idea that the spent fuel was going to stay essentially beyond the lifetime of the power plant ... and it doesn't sell very well."

Moreover, the government has been charging utilities and their customers a fee to pay for a permanent waste dump. So far, more than $30 billion has accrued, and it sits in the federal Treasury. David Wright, who runs the Public Utility Commission in South Carolina and is head of the National Association of Regulatory Utility Commissioners, says it's a rip-off.

"They [the federal government] have chosen not to do anything," he says. "The federal government has our money; we have their waste."

Wright says Yucca Mountain should be revived, but he says the court ruling in Washington requiring a reassessment of the status quo is one development where environmentalists and utilities can agree.

"The fact that we are finally getting some movement -- and recognition in the court system is movement -- and I think it's a positive development," Wright says.

The appeals court says the NRC must do an environmental assessment of all that waste. It did not, however, set a due date.