(These comments were submitted by Elliott Negin, director of news & commentary at the Union of Concerned Scientists.)

Congress may soon consider legislation based on the Blue Ribbon Commission on America’s Nuclear Future’s report on the nation’s decades-long conundrum over how to safely dispose of used nuclear fuel. The commission recommended building one or more centralized interim storage facilities and reopening the search for a suitable site for a permanent geologic repository.

In the absence of a permanent repository for the spent fuel—which remains dangerously radioactive for hundreds of thousands of years—nuclear plant owners keep it on site, mostly in overcrowded, relatively unprotected cooling pools. (For more on spent fuel pool hazards, see “Safer Storage of Spent Nuclear Fuel.”)

Despite the risks posed by congested spent fuel pools, the commission’s final report did not provide recommendations for strengthening on-site spent fuel management practices, and Congress has not addressed the problem, either.

Even under the best-case scenario, a national interim storage facility—let alone a permanent repository—is decades away. And even if a disposal repository opened today, it still would take more than 30 years to ship the spent fuel from nuclear plant sites, according to a 2008 Department of Energy estimate. That means that large quantities of spent fuel will continue to build up at reactor sites for many years to come. Today, more than 67,000 metric tons of spent fuel is stored in 77 locations in 35 states. Of that, more than 49,000 metric tons—73 percent—is sitting in wet pools.

Fortunately there is a way to reduce the safety and security risks associated with spent fuel pools: transfer the spent fuel to dry casks after it has cooled sufficiently, which generally takes five years. A 2006 report by the National Academy of Sciences concluded that dry casks are safer and more secure than pools, and a 2010 Nuclear Energy Institute report stated that the industry “is confident that existing dry cask storage technology, coupled with aging management programs already in place, is sufficient to sustain dry cask storage for at least 100 years at reactors and central interim storage.” In any case, plant owners will have to transfer spent fuel to dry casks to ship it via rail or truck to an interim or permanent repository, so it makes the most sense to accelerate the transfer to the less vulnerable dry casks.

Congress needs to address this problem. The current bipartisan effort led by Sens. Jeff Bingaman (D-N.M.), Lamar Alexander (R-Tenn.), Dianne Feinstein (D-Calif.) and Lisa Murkowski (R-Alaska) to incorporate the blue ribbon commission’s recommendations into a bill should include language requiring plant owners to expedite the transfer of spent fuel to dry casks.

Disposal of radioactive waste is always put forward as an obstacle to a nuclear renaissance. The lack of a permanent disposal site is often called the “Achilles’ heel” to building new nuclear reactors in this country. Yet there is an obvious nuclear waste disposal option that remains as viable as ever: the Yucca Mountain repository.

True, the conventional view is that Yucca is a not a “workable” (euphemism for not politically acceptable) option. The Obama Administration cancelled Yucca and empanelled a high-powered Blue Ribbon Commission to study alternatives to Yucca. We are told to “get over” Yucca because it will never go forward.

All of this conventional wisdom misses the central point: the Yucca Mountain repository is the only option authorized in law. The Nuclear Waste Policy Act, as amended in 1987, directed that only the Yucca site proceed as the candidate repository. It was duly nominated by the President and sent to Congress for approval. In 2002 both Houses of Congress voted by large majorities to support proceeding with Yucca. After many years of exhaustive scientific review, the Department of Energy (DOE) submitted a formal license application to the Nuclear Regulatory Commission (NRC), which has a statutory duty to review and decide whether to proceed.

The Obama Administration simply ignored the law when it suspended work at Yucca. After NRC’s Atomic Safety and Licensing Board unanimously held that DOE could not lawfully withdraw the Yucca license application, NRC stalled and ultimately reached a stalemate. Eventually, NRC Chairman Greg Jaczko, a former staff aide to Senate Majority Leader Harry Reid who recently announced his resignation from the Commission, simply declared that NRC would not proceed with Yucca because they lacked adequate funding from Congress to fully complete the license review.

The D.C. Circuit Court of Appeals will decide, hopefully next month, whether to mandamus NRC to proceed with the Yucca license review by spending the $10 million previously appropriated. Based on the May 2 oral argument, the court seems inclined to agree with the states of Washington and South Carolina and various other petitioners that the law was violated when NRC refused to consider the Yucca license application.

Many in Congress are closely watching the court, hoping that the law will be upheld. Last week, the House of Representatives passed a bipartisan amendment by a four-to-one margin to add more money to NRC’s budget for licensing of the Yucca site. During the floor debate, every member who spoke, Republican and Democrat, affirmed that actions to shut down Yucca are contrary to the law. As Congressman Norm Dicks, the ranking Democrat on the Appropriations Committee, said: “Allowing the Nuclear Regulatory Commission such power to effectively cancel Yucca Mountain after Congress has enacted a law directing that it be accomplished would be an affront to the Constitution, and it would shift the balance of power to executive agencies to evade congressionally mandated legal obligations.”

Until Congress changes the law, which doesn’t appear likely based on last week’s resounding House vote, NRC has a duty to continue its license review of the Yucca Mountain repository.

So, in response to those who say we need “to get over” Yucca, I say they need to accept Yucca as the law of the land that must be subject to a full license review, on the scientific merits, before other options are considered.

[As matter of full disclosure, K&L Gates represents three of the individual petitioners in the Yucca Mountain mandamus action pending in the D.C. Circuit.]

Our nuclear waste dilemma is clearly a case of over analyzing and under deciding, and it amounts to a breach of contract. Nuclear waste disposal has been studied over and over. The answer is clear but the political will to implement it is wanting.

The Nuclear Waste Policy Act of 1982 set in place a process for selecting a geologic site to dispose of nuclear waste. In 1987 Congress directed the Department of Energy (DOE) to focus solely on Yucca Mountain in Nevada, and the agency determined it would make a suitable location in 2002 despite objections from the state.

When Congress selected Yucca as the site in 2002, it reinforced expectations the project would be removed from the political process and that the Nuclear Regulatory Commission (NRC) would evaluate the technical merits. Since 1982, the government has spent over $8 billion studying waste disposal options and the Yucca site. Still there has been no action to move wastes from less safe locations to a more safe one. The delay we have witnessed over the past decade gives new meaning to the term "slow walking".

The current practice of storing waste on site in containers is not as safe or as economical as utilizing Yucca Mountain, which as an abandoned nuclear test facility has no higher value use. When DOE was in the process of making a recommendation for the site, it assembled a panel of international experts. That panel concluded Yucca could satisfy a standard of 10,000 years of safe storage. Subsequently, a number of suits challenging the site, including a many brought by the State of Nevada, were rejected. Technical, environmental, and legal objections have been dealt with. It is time to act.

Adding insult to injury, utilities providers have been obliged to pay a mandated contribution to the Nuclear Waste Fund. The funds collected from rate payers and escrowed, unspent, in the Nuclear Waste Fund now exceed $27 billion. The government has extracted payments from taxpayers for a service that it refuses to perform and clearly has no intention of returning those funds to rate payers. If this doesn't constitute fraud, it is certainly a clear breach of contract.

Raising additional safety and environmental concerns is bogus because all the notable considerations have been analyzed ad nauseam. For example, Senator Jeff Bingaman (D-NM) has repeatedly argued for additional reviews of the Yucca site. With all due respect to Senator Bingaman, who is a serious and reasonable legislator, drafting legislation that restarts the whole process of selecting a new site is worse than a waste of time. And Senator Harry Reid (D-NV), who has effectively put a hold on the site, is hijacking Nevada's electoral votes and holding the nation hostage.

How the long-term waste disposal problem is solved isn't entirely clear. But, there is little doubt that nuclear power is an important part of our long term energy mix. Accordingly the government needs to negotiate a deal with Nevada to store at least waste from currently approved reactors at the Yucca facility, which will hold about 77,000 tons of high-level waste. Doing that will basically constitute bribery or paying ransom but the near term alternatives are even less appealing.

At the same time, the government needs to come to grips with the reality that if the political obstacles can't be overcome, then the next best alternative needs to be re-evaluated. Reprocessing or recycling could be considered, or alternatively a new type of reactor may need to be developed. Dr. Eric Lowen a nuclear engineer at General Electric (GE) and a Marshall Institute fellow has identified the potential of a sodium fast reactor. According to Lowen, "if I build a different kind of reactor that uses liquid sodium instead of water to slow things down, I can have a higher neutron speed and that stuff becomes a fuel....The sodium fast reactor...burns nuclear waste, emits no CO2, and shuts itself down in an accident".

As we move forward, it makes sense to utilize the Yucca Mountain site while also pursuing alternative energy sources. Fortunately for consumers' electrical needs, the natural gas boom will provide a low cost and abundant source of power to meet our growing energy needs in the interim. Current economics are not favorable toward nuclear power, but with time, investment, and research we may be able to change that equation moving forward.

Twenty five years ago, after Congress amended the Nuclear Waste Policy Act and designated Yucca Mountain, Nev., as the only site to be considered as an underground repository for defense and commercial spent nuclear fuel, a member of Congress remarked, “Well, we’ve solved nuclear waste.” Yet here we are in 2012, after spending $15 billion on Yucca Mountain and charging nuclear utilities and their consumers $770 million annually, a nuclear repository is no closer to being shovel ready than it was in 1987.

If nothing else, recent activity in the courts and in Congress has finally put this issue back on the front burner. Unfortunately, it took complete disregard of the Nuclear Waste Policy Act followed by several lawsuits to get it there. But we are where we are, and there are several actions that can be taken to reinvigorate our nation’s failed nuclear-waste policies.

First, the Nuclear Regulatory Commission should complete its review of the Yucca Mountain repository license application. This review was interrupted by the outgoing chairman of the agency. A federal appeals court held oral arguments on the legality of the NRC’s inaction, and we hope to get a decision by the end of the year.

The Blue Ribbon Commission on America’s Nuclear Future released a comprehensive and well-vetted set of recommendations on nuclear waste, which have been the subject of recent congressional hearings. NARUC President David Wright testified last week on this topic. The BRC recommendations are being evaluated within the Department of Energy and the Administration, which is due to release a report on the issue in July.

No matter what the Administration says about the BRC report or nuclear waste in general, there are two significant problems that must be addressed, along with a lingering issue in need of clarification:

• One, there are byproducts of nuclear weapons production, used fuel rods from Navy ships and submarines and other waste stored at DOE sites where there are consent agreements with the States requiring removal by schedules with penalties.
  
• Two, nuclear utilities, in order to retain their operating license, entered into contracts with DOE as required by law. These contracts directed the utilities to make payments into the Nuclear Waste Fund—payments passed through to their consumers—and required DOE to begin taking the nuclear waste for disposal by January 1998. Obviously DOE has not taken the waste, and the result has been lawsuits in which DOE has been found to be in partial breach of contracts. Payments of damages have gone beyond $2 billion and the liability will continue until the used fuel is removed. For its part. the Department of Justice estimates the liability may reach $20.8 billion if the acceptance begins by 2020.
  
• The lingering issue: In this blog post, National Journal states that spent fuel stored in pools is “considered less safe” than spent fuel stored in dry casks. The dry casks are certainly robust with thick concrete, lead and steel shielding. The pools are operationally required for cooling the fuel rod assemblies after they come from the reactor—usually five years—before they can be placed in the dry casks. Both types of storage must meet NRC license requirements and the NRC considers both to be safe.

The BRC affirms that geologic disposal is ultimately needed, and even if Yucca Mountain were operational, it would likely reach its capacity limit. So, we need at least one new repository and possibly two.

In terms of governance, the BRC recommends the creation of a new federal corporation with a sole focus on nuclear waste management that pursues a more open, “consent-based” approach—drawing on the lessons of Waste Isolation Pilot Plant in New Mexico, other countries and the experience of Yucca. All this is commendable, in hopes that a less heavy-handed approach might result in achieving positive results for both national, State, local and tribal goals. However, progress may well be slower in the search for a new repository.

We know of no current forecast of how long it might take for a resurrected Yucca repository to be ready for waste deposits—let us assume 2025 (five years past the previous “best achievable” DOE published in 2007). In addition, it might take 20 to 30 years to select a site, get a license and build a second repository. With more and more reactors’ pool capacity being exhausted and the first repository theoretically available a dozen years from now, the BRC foresees a need for consolidated temporary storage away from present reactor sites.

NARUC has supported the development of consolidated interim storage since it became apparent that Yucca Mountain would not be ready by 1998. We fully support the BRC recommendation that a consent-based effort begin ASAP with priority given to the ten decommissioned sites where the spent fuel is the sole remaining vestige of the former power plant. There is near unanimous agreement that this should be done to not only free up those ten sites but also to show that something can be done with nuclear waste.

Finally, straightening out the much-abused Nuclear Waste Fund, which is supposed to pay for all of these recommendations, is imperative. Implementation of the proposed reforms recommended in the BRC report must begin apace as described in Section 8: “The success of a revitalized nuclear waste management program will depend on making the revenues generated by the nuclear waste fee and the balance in the Nuclear Waste Fund available when needed and in amounts needed to implement the program.”

Right now, the $750 million or so collected in fees for spent nuclear fuel disposal is being diverted through fiscal budgetary legerdemain while accumulating a fresh set of IOUs to join the $26.7 billion already in the Nuclear Waste Fund redeemable only if and when a future Congress appropriates them. Or, as a former public utility commissioner put it, “The Government has our money: we have their waste.”

Recent developments such as the recommendations of the Blue Ribbon Commission (BRC) on America’s Nuclear Future, congressional efforts to revive the Yucca Mountain repository licensing review, and court decisions reassessing the Nuclear Waste Fund are welcomed by the nuclear energy industry. They present an opportunity to develop a long-needed, newly defined pathway for the disposal of used nuclear fuel. Used uranium fuel rods are stored safely and securely in reinforced pools or steel and concrete containers at nuclear energy facilities.

One factor in the nuclear fuel management discussion is constant: the federal government has a legal and contractual obligation to remove the used nuclear fuel from nuclear energy facilities. This is particularly important at commercial reactors that have been shut down. Utility customers who use electricity from nuclear energy facilities have paid nearly $36 billion into the fund, including interest, for this service.

The nuclear energy industry agrees with many of the common-sense recommendations in the Blue Ribbon Commission’s final report, which was developed after nearly two years of fact-finding, public interaction and intense study. In particular, three proposals should be given high priority:

• prompt efforts to develop one or more consolidated interim storage facilities at volunteer sites,
• assured access by program managers to revenues generated by payments and interest earned in the Nuclear Waste Fund,
• establish a quasi-federal organization dedicated solely to implementing the used fuel management program, with access to the Nuclear Waste Fund.

The industry’s priority continues to be developing a fully functioning used fuel management program. If implemented in the near term, the BRC recommendations would create a solid foundation on which to build a sustainable nuclear fuel management program. Developing consent-based consolidated storage for reactor fuel would eliminate near-term pressure on repository siting and permit R&D on advanced fuel cycles that could allow the United States to recycle nuclear fuel and extract additional energy from the material.

Last week, the House of Representatives passed an amendment to the fiscal 2013 Energy and Water Development Appropriations Act that will increase funding by $10 million for the NRC’s review of the license application for the Yucca Mountain, Nev., repository site. The nuclear industry opposes the arbitrary termination of the Yucca Mountain project and believes the NRC’s licensing review should proceed so that there is an independent technical review of scientific data from the site.

As Congress becomes more concerned about government spending and debt, consider that the Energy Department is on the hook for $20 billion in settlement fees because of the agency’s lack of performance on used fuel management contracts with companies that own U.S. reactors. The agency has spent another $188 million for litigation costs in 24 cases that cover 65 reactors. All of these cases assume that a repository will be available by 2020.

The recent ruling by the U.S. Court of Appeals for the District of Columbia that the Department of Energy failed to justify continued payments by consumers of electricity from nuclear power plants into the Nuclear Waste Fund should also help to drive the dialog. While the court did not order DOE to suspend the fee payments, the court rejected DOE’s bases for continuing to collect the fees and ordered it to conduct a complete reassessment of this fee within six months. Considering DOE has yet to move one fuel assembly as it was required by law beginning in 1998, the industry sees no justification for further collection of funds until a functioning used fuel disposal program is in place.

Nuclear energy is a vital component of America’s energy mix, reliably providing carbon-free electricity to one of every five homes and businesses. Nuclear energy facilities produce two-thirds of America’s carbon-free power with the lowest average production costs of all major fuel sources. The industry has made significant strides in the past 20 years in reliability and safety, and has added on-site storage capacity to make up for the federal government’s shortcomings in nuclear fuel management policy. Now, 30 years after Congress passed the Nuclear Waste Policy Act, the development of a long-term solution to managing used nuclear fuel is long overdue. It’s time for policymakers to reexamine the program and develop a new roadmap that will meet these obligations to consumers.

The federal government must prioritize American ratepayers who have been forced to bear the burden of Washington’s failure to solve nuclear waste management. Over the thirty-years since Congress passed the Nuclear Waste Policy Act, continued political stalemate has allowed the federal government to essentially abdicate its responsibility for waste management to the utilities, and effectively, to millions of nuclear energy consumers. Since then, utilities and ratepayers have paid nearly $30 billion into the Nuclear Waste Fund, without any federal resolution, as well as paid for the escalating costs of onsite storage, whether in water-filled pools or in dry casks. Not to mention, as of 2010 the federal government had spent over $192 million in litigation expenses associated with the government’s failure to fulfill its legal obligations. It’s no wonder taxpayers and ratepayers have lost some trust in the government’s willingness and ability to resolve the matter and better prioritize the public interest.

Environmental and public safety concerns should always remain a top priority for the federal government and utilities in regard to any function of nuclear energy. Fortunately, onsite nuclear waste storage remains a highly effective and safe practice that continues to undergo rigorous safety evaluations. Onsite storage, however, was in no way meant to be a permanent solution. As a federal storage and disposal solution looks further and further away, utilities must now plan to begin shifting more of the spent fuel from cooling pools to dry casks, which will require construction and maintenance of additional dry casks. All of this leads to unexpected and rising costs for utilities and, in effect, consumers.

The Blue Ribbon Commission on America’s Nuclear Future recommends a viable, cost-effective path forward to waste management. The Commission’s recommendations on interim consolidated storage will allow the safe transport of dry casks to one or more facilities, helping to ease the expense of maintaining casks onsite. Consolidated storage can provide a way to remove waste from active and decommissioned facilities across 35 states in around five to ten years. Further, the Commission recommended that this process be funded by monies in the Nuclear Waste Fund.

A long-term solution, such as Yucca Mountain, is likely decades from realization. While the federal government must not abandon its work to advance a consent-based approach for permanent disposal, it must also work to advance a solution that can provide relief much, much sooner. Congress should absolutely adopt into legislation the recommendations put forth in the President’s Blue Ribbon Commission, and Congress should continue to examine a long-term repository site, regardless if it’s Yucca or some alternative. Doing anything else fails to provide certainty to our nuclear utilities and its consumers and fails to provide a viable path forward for a source of reliable, American energy.

Two years ago, President Barack Obama did an about-face and started voicing support for a revival of America’s nuclear power industry. To that end, he proposed a sizeable increase in federal loan guarantees to stimulate the construction of new commercial reactors. What’s more, Department of Energy (DOE) Secretary Steven Chu has stated that Congress should include nuclear power as part of any renewable energy mandate.

But at the same time, the president continues to insist that Yucca Mountain in Nevada — the intended repository for spent nuclear fuel — be abandoned as a disposal site even before it opens. Should this happen, some 60,000 metric tons of spent fuel will remain in temporary on-site storage at 65 plants, and the power industry’s interest in building new nuclear plants could quickly evaporate.

Since 1982, utilities have paid more than $17 billion into the Nuclear Waste Fund, an account administered by the DOE that continues to grow by $800 million annually, to cover the costs of permanent disposal. Even after spending $10 billion at Yucca Mountain, with accumulated interest the fund balance is currently around $20 billion. Not surprisingly, 16 utilities, along with the National Association of Regulatory Utility Commissioners, have sued the DOE to halt further collection of fees, arguing that the country no longer has a disposal plan after ruling out Yucca Mountain.

The Obama administration now says it supports the temporary storage of spent fuel at power plants while technology paves the way for an alternative solution. In fact, that technology already exists — nuclear fuel reprocessing. Given the uncertainty over the future of Yucca Mountain, and the potential explosion of litigation that will only increase taxpayer exposure, why not rethink the decades-old ban on this technology? The ban was first imposed by President Jimmy Carter in the mid-1970s on the grounds it could lead to the proliferation of nuclear weapons. But that hasn’t stopped France, Britain, Russia, China and South Korea from pursuing fuel reprocessing; and no plutonium has ever been diverted from recycling facilities for weapons production in these countries.

With reprocessing, a technology that was developed in the United States, valuable plutonium and uranium in spent fuel are removed and then chemically processed into a mixed-oxide fuel that can be used again in a reactor to generate additional electricity. Up to 95 percent of the spent fuel volume can be reprocessed, leaving only about 5 percent to decay in a few centuries. Importantly, reducing the volume of spent fuel through reprocessing would simplify the challenge of storage and disposal. What’s more, squeezing more energy out of spent fuel would be beneficial both to the nation’s economy and the environment. By using reprocessed fuel, we generate more electricity for American homes and businesses while at the same time reducing greenhouse gas emissions.

Recycling of spent nuclear fuel should be given serious consideration. Reprocessing, along with centralized interim storage, makes a lot more sense than banking used fuel at nuclear plants indefinitely. At the same time, we should be doing everything we reasonably can to advance America’s nuclear renaissance, a task made more difficult by the ongoing uncertainty regarding the final disposition of spent fuel.

Amy's questions have been overtaken by Friday's DC Circuit Court of Appeals opinion requiring NRC, in licensing nuclear power plants, to take account of the specific environmental impact of storing spent fuel on site, including the possibility that there will be no geologic repository to move it to, something the NRC could never bring itself to contemplate. The Court's unanimous decision is a strong vote of no confidence in the way the NRC carried out its licensing responsibilities with respect to nuclear waste and, by implication, in the casual way the NRC handed out 20-year extensions of operating licenses after the most superficial safety and environmental reviews. Chairman Mo Udall, who fathered the Nuclear Waste Policy Act, used to say we couldn't have nuclear power in this country without a respected NRC. It wasn't a good day for nuclear power.

What safety, environmental, and economic factors should Washington consider as it debates the future of its nuclear-waste policy? The thing to understand is that at the policy level, whether in the White House, or Congress, or the NRC, "solving" the nuclear waste problem with a geological repository never had anything to do with public safety, or environmental impact, or even cost. It was all about removing possible public and legal objections to licensing and operation of nuclear power plants. That is the be all and end all of nuclear regulation, and is what drives NRC nuclear waste rules and waste confidence statements. What the Court was saying is that this practice has gone too far and it's time to think about the public. The most immediate useful step the NRC could take would be stop shielding the plant owners from the added expense of dry casks by insisting that spent fuel is equally safe in spent fuel pools. The NRC should press for moving all but the hottest fuel to the safer and more secure dry casks. These would best be stored in near surface structures, ideally in central locations, which will have to handle them for the indefinite future. DOE has so poisoned the well in the way it tried to get a Yucca Mountain license that no one reading this is ever likely to see a US geologic repository. In any case, no progress is possible without removing DOE from responsibility for nuclear waste.

How does the uncertain future over spent fuel affect the nation's dependence on nuclear power? In truth the spent fuel's future is not so uncertain--it will eventually end up in dry casks, probably onsite but perhaps at central locations. As a practical matter the nation's dependence on nuclear power will be determined not by what happens to spent fuel but mainly by the cost of power and the public's willingness to subsidize it. That cost is now very high and will likely increase as a result of safety measures taken in the wake of Fukushima. The construction experience of the first "renaissance" units, Vogtle 3 and 4, is so far not encouraging and also points to increased cost. In short, US nuclear power's future is not bright for reasons that have little to do with waste.

One waste-related item could cause additional problems for nuclear power. There are still true believers in the DOE bureaucracy, in the national labs, and in the nuclear fuel industry, who have not given up on the old dream of "closing the fuel cycle"--reprocessing the spent fuel and recycling the extracted plutonium--even thought that no longer makes any economic sense. They almost got their way under the previous administration. If they manage to embroil the public and Congress in arguments over plutonium recycle, it will be a further drag on nuclear power.

Should Yucca Mountain be revived, or should Congress stop debating that repository site once and for all? As a practical matter it can't be revived. And it shouldn't be because--and this does not seem to be understood by proponents, or even most opponents--the DOE application did not meet the basic EPA requirement on allowed releases to the environment. This should have been a reason for NRC to reject the application out of hand. Using DOE's numbers, the site's water-driven corrosion of waste packages would have led to excessive radioactive flows to inhabited areas in about 1,000 years--not the million years there was so much derisive talk about. Of course DOE insisted its application did comply (and still holds this view). The Department supported this claim by including in its calculations imaginary "drip shields"--5-ton titanium covers over each of the 11,000 waste packages to keep them dry. According to the DOE application, DOE promised that yet-to-be-designed robots would place the 11,000 drip shields in the radioactive underground tunnels over 100 years after the waste was emplaced. Any sensible person knew that this was in the realm of the tooth fairy. Yet DOE insisted that NRC as a sister federal agency could not question DOE's promise in a proceeding. And NRC just looked away. It's clear however from the just-issued opinion that the Court of Appeals judges wouldn't go along with that kind of hokum.