NRC’s Expected Supplemental EIS for Yucca: New Information?

An SEIS should be prepared when the relevant information changes. Too often, it's about litigation prep.

The chairman of the Nuclear Regulatory Commission, Stephen Burns, recently told reporters that it would be NRC—and not the Department of Energy—preparing the Supplemental Environmental Impact Statement (SEIS) in connection with the licensing and eventual opening of the Yucca Mountain facility for storing spent nuclear fuel (SNF) and other highly radioactive stuff.  See E&E News story here (subscription required).

This SEIS would’ve been, if not unthinkable, at least pointless before the November elections.  But with Harry Reid’s Majority Leadership now lost in the Senate, Nevada’s sacrifice for the good of the country—Yucca Mountain is the nation’s only SNF storage possibility—seems to be getting back on track.  And it’s probably a good thing.

Put aside the $21B American taxpayers are on the hook for after breaking their contract with the current holders of all the radioactive stuff destined for Yucca.  See Power Magazine’s report here.

Dry cask storage behind secure fencing.

A cask storage facility

Just consider the risk of storing spent nuclear fuel like we do: at 75+ locations—many of them right near major population centers—in makeshift facilities, built to be temporary.  Spent nuclear fuel can be a big problem—if it’s just come out of criticality.  At that point, it is extremely hot and must be tightly, expertly managed.  The loss of power or coolant, etc., can be catastrophic, as  the events at the Fukushima Dai’ichi reactors illustated.  But SNF sitting in “dry casks,” cooled to the point that it no longer needs constant attention, is actually not that hazardous as industrial SHE risks go (at least according to one study by the Idaho National Lab).  So it can literally just sit on a concrete slab collecting dust.  Of course, even supposing the dry casks function as intended (and SNF actually comes in lots of flavors, rendering that assumption a little shaky), a flood, hurricane, tornado, or earthquake can return that dry cask to the “problematic” category and right quick.  That’s where location alternatives analysis comes in.

The principal knock on the very idea of a central repository is that it’s a dump and you don’t put things in dumps that you might one day want to retrieve.  One day, we might want to retrieve SNF and if it’s at Yucca, we won’t be able to.  Here’s what Obama’s first Energy Secretary, Steven Chu, said about it:

Some of the waste is already [molecularly stabilized in a glass-like form]. There is, in my mind, no economical reason why you would ever think of pulling it back into a potential fuel cycle. So one could well imagine . . . that for a certain classification for a certain type of waste, you don’t want to have access to it anymore, so that means you could use different sites than Yucca Mountain, such as salt domes. Once you put it in there, the salt oozes around it. These are geologically stable for a 50 to 100 million year time scale. The trouble with those type[s] of places for repositories is you don’t have access to it anymore. But say for certain types of waste you don’t want to have access to it anymore—that’s good. It’s a very natural containment . . . whereas there would be other waste where you say it has some inherent value, let’s keep it around for a hundred years, two hundred years, because there’s a high likelihood we’ll come back to it and want to recover that.

Of course, the plan at Yucca has long been that it wouldn’t be sealed off in any way inhibiting retrieval for at least another century.  After that, the plan is to seal it off—but was Chu seriously of the mind that a century hence, with 70,000+ metric tons of SNF in the vault, the plan couldn’t be amended to take better account of circumstances as they’d developed over that century?

So here’s the thing about 10,000 years: It’s a very long time.  Think about our ability to predict the weather in a week or the climate in a decade or, even more uncertainly, the pace or direction of technological change over a century.  And then ask yourself: what are estimates about probable events 10- or 100,000 years in the future really doing in our deliberations about something like Yucca?  Are they information or are they something else?  It’s entirely possible that they are masquerading as information and actually something else.  More on that in a jiff.


NEPA’s Voluminous Role in the Yucca Decision

What will this “supplement” to a notoriously complex, notoriously ineffective series of EISs really add, though?  Yucca has the distinction of being the most carefully studied real estate on the planet.  A 1992 federal statute literally made it the only option for a federal repository.  So after decades of geologic, hydrologic, and volcanologic study, the principal risk that DOE analysts surfaced was the site’s groundwater and, in particular, the possibility that the water table could rise to the level of the storage facility.  And this was what they focused on—weeding out earthquakes, volcanoes and several other risks (often after protracted study and debate).

Yucca Mtn Design

Yucca Mountain Design

The site’s groundwater is currently at about 1,000 feet below the installation and the best evidence suggests it hasn’t been at the repository’s depth for over 100,000 years.  But this is where the “new data,” much ballyhooed, comes in.

The DOE, which is nominally the project applicant here, said last year that an update to the 2008 FSEIS was still needed in light of new data on ground water in the vicinity.  (See presentation in DOE archives here.) Because the conclusions in the original FEIS, SEIS, and application are based on a computational model, using the latest available data only makes sense.  Unless of course more data won’t change anything.  And that was the conclusion of two researchers who published a whole book about Yucca in 2013: they found that the whole “upwelling” thesis—the idea that the groundwater would seep up to the facility—had been conclusively refuted.

Refuting the upwelling hypothesis was one of the many pioneering scientific achievements at Yucca Mountain.  The technical scope of the Yucca Mountain project, breadth and depth of interdisciplinary studies, intense public review, and the level of quality assurance and regulatory oversight put the project in a class of its own.

William M. Alley & Rosemarie Alley, Too Hot To Touch: The Problem of High-Level Nuclear Waste 306 (2013).

Yucca Mountain Stratigraphy

Yucca Mountain Stratigraphy

The first SEIS in June 2008 accompanying the 8,600 page license application weighed in at a svelte 60+ pages, although that SEIS was immediately undermined in the call for another supplement later that year (the one that had been mothballed, along with Yucca itself, until the November elections).

That SEIS had amended a whale of an EIS done in 2002 analyzing only two options: building the repository or do nothing.

Will Yucca’s groundwater rise in the future?  USGS rightly answers: it depends.  It depends on how far into the future we’re talking.  According to USGS, in essence, anything’s possible over a long enough interval and so upwelling cannot be absolutely ruled out as a possibility.  And a central repository for thousands of tons of SNF involves a very long interval.  Decay will take hundreds of thousands of years at a minimum.

As the diagram shows, the stratigraphic layering in that part of southern Nevada is quite complex, meaning it is very hard to predict with much certainty what will happen over many thousands of years.


New Data = New Opportunities

With Yucca’s renewal on life in the Senate, however, updating a computational model suggests to the site’s opponents a new chance to persuade others that the government has been lying all along and that the risks of installation failure at Yucca are actually quite high—or at least too high to open the facility.  At the very least, it is ammunition for the eventual lawsuit.

Such is the sort of thing that counts as public deliberation in our increasingly polarized republic.  But reporters covering this story should keep asking: Is Yucca better than the practical alternatives?

A lot has changed politically since I first wrote about this saga a decade ago. {See my Findlaw piece here}  But surprisingly little has changed in our risk estimates—specifically in the comparative risk estimates of leaving the SNF where it is, strewn about the country in makeshift facilities, versus concentrating it in one central repository below a nondescript, relatively stable ridge in the Nevada desert.  Because if our best available information and analysis tells us that Yucca beats the alternatives on all the calculable risks and all the values that matter most, then it becomes a much simpler story about distributing risks to the few, to the many, to future generations, etc.

The Washington Post’s Editorial Board recently had this to say:

[O]pponents of nuclear power who raise the spectre of radioactive waste haunting humanity hundreds of thousands of years from now wildly exaggerate the difficulty of the problem. Nothing is risk-free, but there are ways to make the risks extremely small. Nuclear power, meanwhile, is likely to play a part in responding to a much more important environmental threat: climate change.

Is it a wild exaggeration?  The nuclear industry is suffering financially as it accumulates more and more SNF (2,000 tons a year) awaiting a repository—storing it in harm’s way.  In our actual political system, Nevadans have been devastatingly effective in their NIMBY-driven war, making the SNF into a very difficult problem.

This latest SEIS is perhaps a necessity: it adds a little shielding to the decision against the inevitable legal challenges that will allege NRC didn’t take into account all the available data.  And perhaps there’s some value in that model of NEPA compliance (although I tend to think it adds little even as litigation strategy).  This is the project, after all, that the D.C. Circuit ordered EPA to assess for its 100,000 year risk profile—because 10,000 years wasn’t long enough!

But putting aside the litigation risk, there is probably precious little to be learned or gained from the SEIS NRC recently announced it will prepare.  Too often, NEPA processes involve this kind of uninformative information.  And that makes NEPA’s continuing role in the Yucca Mountain soap opera rather like the tool that became the master.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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