Waste Confidence: A Classic Case of Failed Leadership (Part 1 of 2)

By Paul T. Dickman

Paul Dickman was a career Federal environmental scientist specializing in nuclear waste and nuclear materials management. He served as Chief of Staff to NRC Chairman Dale E. Klein.

Part 1 of 2
The 12th paragraph below has been revised to clarify that the 1998 rule was a reaffirmation of a 1990 decision.

Last week’s vote by the U.S. Nuclear Regulatory Commission comes as no surprise to those of us who watched with dread the mismanagement of this critical issue by former Chairman Jaczko and his staff. The Commission, led by the new Chairman Alison McFarlane, in a 5-0 vote, put on hold any nuclear reactor licensing decisions, while allowing NRC staff to continue to process applications. It was probably the only reasonable thing they could do given the ruling from the Court of Appeals. The 5-0 Commission decision sends a strong signal that this is a big problem and rather than waste resources fighting the Court’s decision they need to get this train back on track, quickly.

While all the anti-nukes are patting themselves on the back for derailing the NRC’s reactor licensing, few understand that the train went off the tracks in September 2009. The derailer-in-chief was the newly anointed NRC chairman Greg Jaczko who, in my opinion, is a brilliant individual who squandered his Chairmanship by making sure that no actions concerning Yucca Mountain would ever appear before the Commission while he was Chair.

In the summer of 2009, the Commission was hotly debating what to do about Waste Confidence given the Obama Administration’s plan to terminate the Yucca Mountain. After losing to Commissioners Klein and Svinicki on the first Waste Confidence vote in September 2009, Jaczko refused to do the one thing that may have saved the NRC from this impending debacle—re-open the public comment process to put, on the record, facts relevant to Administration’s decision to abandon Yucca Mountain. Remember, the NRC’s public comment period for Waste Confidence closed before the Administration declared they were abandoning Yucca Mountain, and eliminating the statutorily required Office of Civilian Radioactive Waste Management (OCRWM). Not only did the Administration not have a path forward, they did not — and still do not — have the legally required government program to manage this effort.

Chairman Jaczko’s assertions that these facts were not relevant to the Commission’s findings on Waste Confidence were disingenuous at best. Though he was always a public champion of openness and transparency, privately Jaczko blocked every effort to add to the record on this matter of national and international importance.

In September of 2009, the NRC was down to only three Commissioners—Jaczko, Klein, and Svinicki. As a three-person commission, all three members must participate to make a quorum. So if any of the three refused to participate, the issue was at a stalemate. Klein and Svinicki knew it was impossible for the Commission to make a finding of reasonable assurance of Waste Confidence with the record as it stood and tried to convince Jaczko that he was putting the agency in an untenable position if he continued to steadfastly oppose adding to the public record.

The haunting phrase “the Commission should not second guess the Administrations’ position on Yucca Mountain” (Note 1) was often used by Jaczko’s staff in our debates on this issue. I can only assume that inexperience and arrogance blinded them to the fact that it was not Yucca Mountain, but the Obama Administration’s vindictive destruction of the Office of Civilian Radioactive Waste Management (OCRWM) that put the entire legal foundation and policy basis for nuclear waste and international nuclear non-proliferation at risk.

To understand this you must look at the previous Waste Confidence findings, including the original dating back to 1984. In this initial waste confidence assessment, the Commission found:

1. reasonable assurance that safe disposal of high-level waste and spent fuel in a geologic repository is technically feasible,
2. that repository capacity will eventually be available,
3. that high-level waste and spent fuel will be safely managed until repository capacity is available,
4. that spent fuel generated in any reactor can be stored safely and without significant environmental impacts for extended periods, and
5. that spent fuel storage will be available as needed.

Finding 3, 4, and 5 can be addressed using technical measures under the NRC’s control and the NRC has made a good case for these three findings over the years. But finding’s 1 and 2 are linked, inextricably, to the actions being taken by the Department of Energy (DOE) and their Office of Civilian Radioactive Waste Management (OCRWM). In a nutshell the problem for the Commission is that they do not like using “crystal balls” to predict the future – they need facts, figures, and science to back their decisions. And who was charged by Congress to supply these data?—The DOE’s OCRWM!

It has always been the case that finding #2 had to be based on “informed speculation”, something the NRC avoids and is not comfortable with accepting. However, as long as the DOE continued to advance the Yucca Mountain repository, albeit slowly, there was reasonable assurance that it was: (a) technically feasible and would, sooner or later, (b) accept used fuel from the utilities—although it was never certain if this would involve interim storage or not.

NRC staff had frequent public meetings with the DOE and their scientists at National Laboratories in preparation for receipt of the license application. Public testimony given by DOE Secretaries and other senior program officials also added to the ability to prove both feasibility and assurance. Essentially, the Commission had no reason to reconsider their Waste Confidence finding so long as DOE continued to muddle through the politicized process of developing Yucca Mountain.

This was the situation in July 2006 when Dale Klein assumed the Chairmanship of the NRC and suddenly we were exposed to the push being made by the nuclear power industry to address Waste Confidence. At the time the “Nuclear Renaissance” was in full bloom with multiple utilities announcing their intention to seek licenses to build and operate new nuclear power plants. Additionally, there were numerous plants planning for 20-year license extensions.

It was the belief by the industry that the Commissions’ 1998 Waste Confidence update findings put at risk this reinvigoration of nuclear power. The Commission reaffirmed their decision to punt on question #2–the availability of a repository by finding “reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century”. The industry’s concern was that given DOE’s slow progress, the Yucca Mountain repository was unlikely to be operating by 2025. Unless the Commission re-affirmed that a repository would be available in a reasonable time frame, there was potential for intervention on new reactors and life-extension. It was, in my view, a minor concern outweighed by the substantial risk in opening the Waste Confidence Pandora’s Box.”

First and foremost was that in 2006 and 2007, no one really knew if DOE would actually submit a license application for Yucca Mountain. With the 2008 election cycle in full swing and the Nevada electoral votes in play, we knew that any decision of this sort would be taken out of the control of DOE’s OCRWM. While there were cautious statements made by senior DOE officials, few were willing to say that the application would be submitted in 2008 with any certainty. Second, the industry’s concern that 2025 was an absolute date was ridiculous. As former NRC Chief Council Karen Cyr aptly chastised a gathering of industry lawyers—“If the Commission really meant December 31, 2025, they would have written it as December 31, 2025! They used a far less specific timeframe to give themselves and DOE some reasonable latitude.”

Chairman Klein’s view was that Waste Confidence was not ripe for reconsideration and the prudent action should be to wait to if DOE really did submit the Yucca Mountain application. If DOE did submit, then perhaps a simple clarification of finding #2 would suffice. If not, then clearly a broader reconsideration and update was appropriate.

Unfortunately, our other Commissioner offices did not agree with his position and it is the only time that I recall that Dr. Klein was 4-1 on any matter with his fellow Commissioners. The decision to direct staff to begin the process of updating the Waste Confidence rulemaking was started sometime around mid-2007 and the public notice was finally published in October 2008, which was about the same time as the formal docketing of the DOE’s Yucca Mountain license application. A month later, Sen. Obama won the Presidency running on a campaign that included killing off the Yucca Mountain program. In his campaign, the newly elected President repeatedly claimed that Yucca Mountain was based on “bad science”.

To Be Continued

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Note 1: This same phrase was used by Sen. Boxer during the confirmation hearings of Commissioners Magwood, Apostolakis, and Ostenfdorff to question their adherence to Sen. Harry Reid orthodoxy. Unfortunately for Sen. Boxer, who was obviously reading from a script you must assume was provided by Chairman Jaczko’s office, the question was not specific enough to compromise the three new Commissioners. Since none of them had direct knowledge of the adjudicatory issues confronting NRC on the waste confidence, they could all answer, without reservation, that they would not second guess the Administration on this issue. I honestly believe that had they been fully aware of the issues and the contrivances, they still would have answered the same way. This was not a matter of second guessing the Administration; it was a matter of adherence to the law, the same law that Sen. Boxer is obligated to uphold.