By: Stephen Edelblut
As global environmental concerns continue to heighten, American policymakers have begun placing greater emphasis on incentives for renewable energy. Nuclear energy, often overshadowed by alternative forms of energy, remains a more environmentally neutral and a long-term sustainability energy source. However, the disposal of nuclear waste poses a severe cost and risk burden for nuclear energy producers that has yet to be remedied in the United States. In attempting to resolve the disposal issue, the U.S. Nuclear Regulatory Commission (“NRC”) has been providing licenses to third-party facilities for off-site waste storage. Recent legal disputes, however, have called the NRC’s authority into question, creating uncertainty around potentially beneficial repurposing projects and increasing cost burdens on nuclear energy facilities.
The Atomic Energy Act of 1954 (“AEA”), later modified by the Energy Reorganization Act of 1974, grants the NRC authority over the general disposal and management of radioactive materials. To encourage the development of nuclear energy and reduce the cost of waste disposal, the NRC began issuing licenses to third-party storage facilities located away from nuclear reactor sites. These “away-from-reactor” facilities are tasked with receiving and storing spent nuclear fuel under strict NRC regulations. Beyond providing a crucial disposal area for nuclear reactor facilities, the collection of nuclear byproducts has a critical advantage that may contribute to the sustainability of nuclear energy in the long term.
Nuclear fuel rods—used to power nuclear reactors—typically have a use lifespan of four to five years. After use, the fuel rods are removed to water tanks for several years and then buried in the ground, where they will continue to radiate energy for tens of thousands of years. Surprisingly, even after the fuel rods are retired, up to 96% of the reuseable material in used fuel can be recovered. Through a distillation process, these fuel rods may be separated into their component parts: uranium, plutonium, and fission particles. The plutonium can then be combined with purified uranium to form fuel rods that will last another 3-5 years. The high cost and lack of infrastructure make reprocessing impractical for U.S. nuclear facilities. However, private companies specializing in reprocessing could be presented with an ever-growing supply of plutonium as reactors generate more waste, incentivizing them to recycle it for future use. To accomplish this recycling, private companies must be granted off-site waste storage licenses. Recent circuit splits have made it unclear whether the NRC has the authority to issue these licenses.
In 2004, the U.S. Court of Appeals for the District of Columbia Circuit upheld the NRC’s authority to issue licenses to private contractors for off-site nuclear waste storage under the AEA. The court ruled that “the AEA has long been recognized as conferring authority to license and regulate such fuel,” emphasizing that this authority is essential to maintaining a viable nuclear energy program. The Court reaffirmed its stance in January of 2023.
Just last March, the Fifth Circuit contradicted and critiqued the D.C. Court’s ruling. The court held that the AEA never explicitly granted the NRC the authority to provide licenses. Relying on the Nuclear Waste Policy Act (NWPA) to provide a contextual understanding of Congress’s intent when passing the AEA, the court found that Congress, through the NWPA, had placed the “primary responsibility for providing interim storage of spent nuclear fuel” on “the persons owning and operating civilian nuclear power reactors.” The court concluded that the disposal of nuclear waste rests exclusively with Congress, or an agency that has been explicitly directed by Congress to regulate waste disposal. Just last month, the D.C. Appeals Court has again reaffirmed the NRC’s licensing authority, but did not address the 5th Circuit decision. The NRC has petitioned the U.S. Supreme Court to resolve the inconsistency.
It is essential that Congress or the Supreme Court resolve this discrepancy by either modifying the language of the AEA to explicitly grant licensing discretion to the NRC or affirming the D.C. Appeals Court interpretation of the AEA. Without third-party waste disposal, the burden on nuclear energy producers becomes increasingly high. As nuclear energy develops in the United States, it is unclear whether Congress will be able to provide and regulate sufficient licensees to meet the demand for off-site waste disposal. Further, by restricting the number of licensees, the prospect of investment in reprocessing operations will be diminished. As the United States moves toward renewable energy, prohibitive costs and regulatory uncertainty surrounding nuclear waste disposal threaten to slow progress in a vital renewable energy industry. The NRC’s ability to license off-site storage facilities is not only key to managing current waste but also serves as a foundation for further renewable enterprises, such as reprocessing.
Student Bio: Stephen Edelblut is a second-year law student at Suffolk University Law School. He is a staff writer for the Journal of High Technology Law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
