The Federal Government made a legal commitment to dispose of the high-level nuclear waste at the Yucca Mountain facility years ago, and the Administration's recent decision to shut down the facility's development not only puts the future of safe, and affordable nuclear energy production into question, it also raises the question of the ultimate disposal of nuclear waste. Current storage facilities, while very safe, were not intended for permanent storage and would have to be expanded if the government does not proceed with the Yucca facility.

The Administration's Blue Ribbon Commission, which is currently investigating alternatives to the Yucca Mountain repository, does not preclude the government from maintaining its commitment to moving forward with the facility now. Alternative solutions - from expanding onsite storage at nuclear facilities to relying on new recycling technologies -- are years away, and even some of those alternatives will still produce byproducts that require a safe depository.

The government has a legal obligation to provide for the long-term storage of highly radioactive waste at this facility - and they have already collected $34 billion from the industry to do just that. Nuclear energy is a clean, reliable energy form that will help to stabilize domestic energy prices, if and only if, Congress and the Administration are fully behind making it a part of a well rounded domestic energy program.

If upheld, the decision by the Atomic Safety and Licensing Board alone would not have a significant bearing on whether new nuclear power plants are built. The contracts for any new reactors to be built will not require DOE to remove spent nuclear fuel until after the reactor is shut down, which could be more than 60 years after it begins operations. Loan guarantees would appear to be unaffected.

From NARUC’s view, the ASLB’s decision marks a muted victory for the nation’s energy policy, affirming our long-held view that only the Nuclear Regulatory Commission can determine whether Yucca Mountain is a suitable repository for spent-nuclear fuel. Congress in the Nuclear Waste Policy Act set forth explicit instructions for the consideration of Yucca Mountain, and made undeniably clear that DOE cannot simply stop this process because of a sudden change of heart. It is in the NRC’s hands, and they are the only agency with the authority and expertise to determine the safety of Yucca Mountain.

Still, we recognize that no matter what the full NRC decides, the Administration will continue on its goal of taking Yucca Mountain off the table. The Administration has refused to fund the project and has released key personnel who provided the analysis and technical support for the 8,600-page application now pending before the NRC.

Despite its rejection of Yucca Mountain, DOE continues assessing fees for this program from nuclear utilities, fees that are borne by their ratepayers. The Department flatly refused our request that it defer collecting these fees, a decision we have challenged in the Court of Appeals. If the NRC were to uphold the licensing board’s decision, the consumers paying these fees will benefit from all the lessons that their investment in the Yucca licensing process can provide. If, however, the NRC overrules the ASLB and grants the withdrawal request, it means the waste will stay where it now sits as ratepayers and taxpayers await a new strategy to be proposed by the Blue Ribbon Commission, adopted by the Administration, enacted by Congress, and supported by the American public.

Last year's congressional budget spelled the rightful death of the Yucca Mountain project. Accordingly, the Department of Energy began preparing to terminate it. The ruling by the Nuclear Regulatory Commission's Atomic Safety Licensing Board (ASLB) is a last ditch attempt to keep Yucca alive, but it only delays the inevitable termination of the failed project.

At their recent confirmation hearings, three NRC commissioners affirmed that they would not interfere with DOE's plans to end Yucca Mountain. Those commissioners will hear an appeal of the ASLB's ruling, which is sure to come.

There's ample evidence to support the Department of Energy's appeal. First and foremost, the board's ruling cited "congressional will" to proceed with the Yucca Mountain project, but Congress itself terminated the project by ending its funding. The ASLB conveniently ignored this fact in its ruling.

In the medium-term, it's clear that on-site storage in robust canisters is the best option for radioactive spent fuel. The president has established the Blue Ribbon Commission to examine better options for the storage of such high-level waste; its final report is due in mid-2011. The ASLB's ruling on Yucca Mountain, however, continues to beat a dead horse and impedes the pursuit of viable long-term options for storing this dangerous and dirty byproduct of nuclear reactors. While there are special interests who stand to profit from reprocessing spent fuel, technical and financial arguments show the lack of viability of this option, and the focus must be on long-term storage.

Without a clear path forward for storing deadly spent fuel, it is irresponsible for the federal government to subsidize new nuclear reactors or deliver pre-emptive bailouts to the nuclear industry. Opportunistic industry hacks have attempted to brand nukes as clean energy, but the as-yet-unsolved issue of radioactive waste renders them anything but.

The following comments were submitted by Jack Spencer, a research fellow with an expertise in nuclear energy policy at the Heritage Foundation.

Last week, the Atomic Safety and Licensing Board (ASLB), a three-judge panel charged with conducting licensing hearings for the Nuclear Regulatory Commission rejected the Department of Energy’s motion to withdraw the licensing application to construct the geologic repository Yucca Mountain.. This is a resounding victory for the future of nuclear energy. Though the Board’s decision was a surprise, it was the correct decision. Existing statute is clear that Yucca Mountain shall be the nation’s nuclear waste repository. So absent any technical or scientific justification for the motion to withdraw, moving forward with the President’s request would seem to violate the law.

This does not mean that the fight to save Yucca Mountain is over. The decision can still be appealed to the full, five-member Nuclear Regulatory Commission. However, to overturn the ASLB’s recommendation, especially with such clear-cut conclusions, would raise serious questions about whether or not the NRC was being driven more by political concerns then by protecting public health and safety. Doing so would set a dangerous precedent and undermine the credibility of the NRC system.

It also does not mean that Yucca Mountain is open for business; it simply allows the NRC to move forward with its license review. In September of 2008, the NRC commenced a three-year, two-track review process to examine Yucca Mountain. One track will determine the technical merits of the facility. Over 100 technical experts are reviewing the application. The other track consists of hearings where parties can challenge the Yucca project. The ASLB is part of this second track.

This decision alone does not resolve the issues surrounding long-term nuclear waste management, which remains to be a significant hurdle for nuclear energy moving forward. Any energy bill in the future should

1.) Implement regulatory reform for the nuclear industry that:

Allows permit applicants that meet certain conditions to enter into the expedited program; Open the marketplace to new technologies; develop human resources without lavish subsidies, Expedite existing DOE programs.

2.) Implement a comprehensive waste management strategy that:

Acknowledges the importance of deep geological storage; Supports the NRC in its review of the Yucca application; Redirects the Blue Ribbon Commission on America’s Nuclear Future to consider Yucca Mountain in its deliberations; Transfers significant responsibility of Yucca Mountain to local Nevadan interests; Removes civilian radioactive waste management responsibilities from the Department of Energy; and that Makes nuclear waste producers more responsible for managing their own nuclear waste.

These reforms, along with regulatory streamlining, would streamline the development of a real solution by moving out of the arduous Department of Energy bureaucracy, give Nevadans control over how best to make Yucca Mountain feasible, and introduce market forces by giving waste produces the incentive to develop cost effective waste management techniques.

For security and environmental reasons, the permanent nuclear waste problem will need solutions. However, the appropriate place to adjudicate questions of dealing with nuclear waste is decisively not in the context of negotiating an energy and climate bill. The reason is that the Nuclear Regulatory Commission’s decision to re-open the door to the potential Yucca mountain nuclear waste repository may have inadvertently removed the lid from a can of worms that lies at the intersection of energy, climate and national security: nuclear reprocessing.

This NRC decision is likely to become the first note in a crescendo of debate over reprocessing. The debate will further grow over the nuclear energy provisions that prevail when clean energy and climate legislation is debated and perhaps passed in the coming months. It will increase yet again when Secretary of Energy Steven Chu’s Blue Ribbon Commission on America's Nuclear Future releases its report proposing a path forward on the nuclear waste issue. According to The New York Times, this report could be released later this year, with the commission having focused more on “ways of recycling and reusing some of the waste” than potential permanent waste disposal sites. The “reusing” part of that phrase can be read in different ways, but to those concentrating on nonproliferation and security of nuclear materials, it raises serious questions about whether reprocessing is on the list being considered.

If it is, that would not be an entirely new development. The momentum has grown over the past few years behind a reexamination of broad U.S. nuclear reprocessing, which carries major concerns for materials security and proliferation given the separation of plutonium that can be more readily weaponized. Chatter over U.S. reprocessing has been on the rise among American and international nuclear industry representatives and other energy experts in the public and private sectors. Furthermore, the intractable battles around the Yucca site are unlikely to be avoided with any other proposed permanent waste repository site, which is leading to more analysis focused on reducing the amount of waste to be stored.

Even with fast growth, nuclear power generation will not save the climate from the greenhouse effect or provide a major net increase in long-term power generation given the looming retirement of much of the aging stock of American nuclear plants. But growth in this industry is a political reality, and in many cases is a worthy energy investment despite the lopsided economics and environmental ramifications (when compared to the environmental and economic costs of alternative investments, particularly in coal-fired power plants). Beyond our borders, the world is turning sharply into a future laced more heavily with nuclear energy. And while uranium reserves will last many more decades at the current rate of use, it is a nonrenewable resource, and we must consider its long-term supply and demand in considering policies for how to store or use spent nuclear fuel.

For these and many other reasons, the waste problem that is perplexing our political leaders is unlikely to be settled without a major reconsideration of the costs and benefits of reprocessing. This debate, however, cannot begin and end within a legislative calendar. Congressional voices must be represented in this debate, but thoroughness will need to trump political expediency in a new look at reprocessing. All of the nation’s security agencies – the Departments of Defense, State, Homeland Security, and the intelligence community – will also need to consider this question from their perspectives, as will representatives from the private sector, states and environmental groups. They may need to work through civilian leaders in the executive and legislative branches to ensure that proliferation considerations are given sufficient attention if political pressure to move in the reprocessing direction grows abruptly.

Many focused on energy and climate legislation are not paying sufficient attention to the security ramifications of their clean energy decisions – whether proposed measures for the legislation may benefit or hinder national security goals that may seem unrelated. Likewise, the security community seems not to be paying due attention to important debates about nuclear energy policy that the prospects of a bill are causing to bubble toward the surface. Likely inadvertently, by shedding new light on the incredible difficulties of settling on proper nuclear waste storage policies, the NRC’s Yucca mountain ruling has likely ignited a new round of the old nuclear reprocessing debate that brings concerns of energy, environment and security together. It may or may not create a nasty brawl, but it is not a debate properly fought in the context of this energy and climate bill.

To be precise about what was decided: a board of NRC administrative judges, before whom the Yucca Mountain licensing case was to be heard, rejected DOE's request to withdraw the Yucca Mountain license application it had submitted two years ago for review by the NRC technical staff. This decision mooted DOE's further additional request that the withdrawal be deemed to be "with prejudice," so that is could not be resubmitted. The NRC commissioners will soon decide appeals from this decision, and after that the case will undoubtedly head for the courts.

The first thing to be said is that even if the NRC board ruling stands up it isn't going to bring Yucca Mountain back. In that sense it isn't going to affect things in the real world, that is, the world of actual spent fuel storage. But whether or not it stands, the decision will sow confusion in the Washington policy world--where symbols trump facts.

The overriding immediate fact is that DOE has effectively dismantled its expert teams needed to back up the NRC license application, and it would be difficult to reassemble them. Therefore, as a practical matter, the Yucca Mountain project is dead, which it should be, because the site is an exceptionally poor one. Based on DOE's own calculations, the proposed repository would not meet federal (EPA) radiation dose standards for the surrounding population (something that DOE has naturally been shy about disclosing). DOE planned to fix this disqualifying deficiency by means of yet-to-be-designed technology to be applied a hundred years from now, and for the purposes of licensing wanted NRC to rely on DOE's promise to do so, which when you think about it is pretty ridiculous.

Unfortunately, DOE has now made a mess of its withdrawal request by still not facing up to the project's deficiencies. While the NRC licensing board ultimately relied on its reading of the law, it cited, and was clearly influenced by the seeming frivolousness of DOE's current request, in which DOE still maintains the site is fine and the application is fine, but asks for the application back because the project no longer fit with Secretary plans. And, DOE adds, please make sure neither we nor anyone who follows us, can ever reapply (sort of, "stop us before we kill again"). In that case, said the NRC licensing board, we find that Congress mandated that once submitted the application had to be reviewed and judged by the NRC--in the circumstances an understandable ruling, and one I think likely to stand up.

The current difficulty goes back to the Obama administration's failure, whether out of conceit or ineptness, to address the substance of the case. At no point has the administration explained what is wrong with the Yucca Mountain proposal, or shown any indication that anyone upstairs understands it. You'd think the White House science office would have weighed in, but they appear to be missing in action. In any case, Secretary Chu does not seem up to taking on a DOE bureaucracy that is unwilling to admit error.

The whole mess is a reminder that DOE should be removed from the nuclear waste business altogether ("with prejudice," to apply its terminology). Its long record of highly politicized decision-making disqualifies it, and it is time to consider a new independent organization to manage nuclear waste. To my mind, if there is any policy recommendation that emerges from this latest wrinkle in the Yucca Mountain saga, this is it. There is no point in making nuclear waste policy until we get this straight.

Last week’s ruling on the Yucca Mountain license application by the Atomic Safety and Licensing Board has no impact on U.S. nuclear energy policy – in the short term. Realistically, building a repository at Yucca Mountain is a 10- to 20-year endeavor. If a repository is not built there, it will be a much longer period before a repository can accept commercial and defense-generated high-level radioactive waste. However, the board’s ruling reasserted the primacy of the Nuclear Waste Policy Act of 1982. In effect, the NRC judges said that the Secretary of Energy must go forward with licensing Yucca Mountain or petition Congress to change the nation’s used nuclear fuel management policy.

Today, the nuclear industry safely and securely manages 50 years worth of used uranium fuel rods at its plant sites. That’s a success story, but it’s not ideal fuel management policy. Federal law requires that the Energy Department take title and possession of this fuel, and DOE was obligated to begin doing so in 1998. Of course, it has not done so, and the nuclear industry has won hundreds of millions of dollars in damages for the government’s delinquency in taking this action.

In light of this reality, the industry advocates an integrated fuel management system, which includes establishing a centralized storage site for used fuel hosted by a volunteer community. Centralized interim storage should be considered a strategic element of used fuel management and would provide a safe, near-term solution for consolidating reactor fuel from shutdown commercial reactor sites and storing used nuclear fuel away from operating sites.

An additional component of an integrated fuel management policy involves pursuit of advanced recycling and related nuclear fuel cycle technologies which, while not providing used fuel management solutions in the near term, can be a strategic element for reducing the heat, toxicity and volume of material ultimately to be placed in a disposal facility. Any energy/climate change legislation should include funding focused on advanced technologies, including R&D for used nuclear fuel management. Ultimately, there will be a byproduct in any fuel cycle strategy – including recycling -- requiring management in a specially designed geologic repository.

Earlier this year, the Obama administration formed a Blue Ribbon Commission on America’s Nuclear Future. The commission is charged with identifying a path forward for the stable management of used nuclear fuel. Industry is among the stakeholders that have briefed the commission, and it would be prudent to review the commission’s recommendations before advocating used fuel policy options in federal energy legislation. The Nuclear Regulatory Commission has noted that used nuclear fuel can be safely stored “without significant environmental impact” for at least 120 years. This is the case for storage at plant sites or at a central storage facility.

As such, last week’s NRC board ruling has no bearing on the schedules for development of new nuclear plants, fuel facilities or manufacturing startups that are adding thousands of American jobs and stimulating economic growth across our country. Still, the nation needs a stable and durable used fuel policy, one established in a manner that will enhance public trust and confidence. Industry looks forward to the continuation of the repository licensing process and to the work by the Blue Ribbon Commission.

Yucca Mountain and the Obama Administration’s attempt to withdraw its license application is a symbol of our dysfunctional energy policy. It is well known that our power generation needs are significant as is the need to rationally retire older coal fired plants. We aren’t going to meet those needs through political expediency.

The Obama Administration is hostile towards coal, wants to reduce C02 emissions but doesn’t support a new age for nuclear power to meet our growing needs.

The Nuclear Waste Policy Act of 1982 gave DOE the responsibility to construct and operate a geologic repository for high-level waste. The NRC was given responsibility for regulating geologic disposal of the waste. In 1987, Congress directed DOE to focus solely on Yucca Mountain as the site of a repository. DOE made its determination in 2002 that Yucca Mountain would be a suitable location; President George W. Bush and Congress accepted that determination and directed DOE to submit its license application.

When Congress selected the Yucca Mountain site over Nevada’s objection in 2002, it reinforced the expectation in the 1982 Act that the project would be removed from the political process and that the NRC would complete an evaluation of the technical merits.”

The repository is to hold about 77,000 tons of high-level waste. Approximately 57,000 tons of commercial spent fuel are already in temporary storage at nuclear power plants across the country. Clearly, the current practice of storing waste on site in containers is not as safe or as economical as Yucca Mountain which as an abandoned nuclear test facility has no higher value use.

In addition, utilities have been obliged to pay a mandated contribution to the Nuclear Waste Fund starting. The amount collected by the utilities from their rate payers and currently escrowed, unspent, in the Nuclear Waste Fund now exceeds $27 billion. So, we have a situation where the government extracts payments from taxpayers for a service that it refuses to perform but has shown no inclination to return those funds to rate payers. This is the kind of behavior that leads to convictions for fraud.

Currently, nuclear power is not the most economical source of electrical power. Utilities and developers of nuclear power plants don’t have the incentives to develop lower cost and more effective technologies because the government refuses to make a firm a credible commitment to nuclear power and its important role in electrical power generation. For example, nuclear waste recycling holds a great deal of promise but it is a promise that will remain unrealized because of politically generated uncertainties and lack of coherent policy. If nuclear power is to have a real future, government created impediments need to be removed and a strong R&D program put in place.

Yucca Mountain’s capability as a safe repository has been demonstrated more than once. It is time for the Federal Government to either use it or change the Nuclear Policy Act and refund the money that has been collected on the basis of false promises.

Storing wastes in Yucca Mountain and making a strong commitment to nuclear power as an important source of electrical power in the decades to come would provide the stimulus needed to develop new nuclear technologies.