Legal Docket: Finding a place for nuclear waste

JENNY ROUGH, HOST: It’s Monday March 31st, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

First, the Supreme Court handed down two opinions last week. One upheld a federal regulation on so-called ghost guns. The decision allows the government to expand the definition of firearms it can regulate to include gun-parts kits and unfinished frames or receivers. It reverses an appellate court ruling that held only a firearm is a firearm. Justices Clarence Thomas and Samuel Alito dissented.

The other was a win for the IRS. The court set a limit on the power of a bankruptcy trustee to recover tax payments made to IRS before a bankruptcy is filed.

ROUGH: Today we get up-close and personal with nuclear waste.

Not too close, but close enough to understand a problem the U.S. government has not been able to solve: Namely, where to store highly radioactive waste from nuclear power plants.

So if the federal government can’t solve this problem, maybe the private sector can.

EICHER: And so enters a company named Interim Storage Partners. It proposes building a storage depot in Texas. Andrews County, population 19,000, on the border with New Mexico and just north of Midland, Texas.

The company filed an application with a federal agency, the Nuclear Regulatory Commission. The NRC granted a license on the grounds that Interim Storage Partners could really make good on that name “Interim”—meaning the storage facility the company would build would be a temporary one.

ROUGH: Temporary meaning 40 years!

Power plants from around the nation would ship radioactive waste by train to that temporary dump, until a more permanent solution can be found.

EICHER: But the state of Texas said, no thanks! It sued, and so did private landowners who run oil and gas operations in the nearby Permian Basin. They want to stop the project.

Texas and the landowners argue the federal agency—the NRC—does not have authority to allow that.

Now, whether the NRC can license a private company to build a temporary waste facility is one question the Supreme Court is looking at. A second relates to the question whether the objecting parties even have standing to bring this lawsuit.

ROUGH: We’ll get to the legal arguments in a minute, but I wanted first to understand more about nuclear energy.

So I got in touch with a nuclear engineer named Doug Hardtmayer. He’s been interested in this form of energy since he was a kid.

HARDTMAYER: Wait a minute, you're telling me that a piece of uranium fuel that's the size of a gummy bear or something like that has as much energy as six train cars or so filled with coal?

Today, Hardtmayer’s all grown up. He works for a consulting firm where he develops strategies to build nuclear reactors.

HARDTMAYER: When you think of sources like coal or natural gas or nuclear, all that comes down to is a different way to boil water that spins a big turbine that then converts that into electricity and powers on the appliances and everything we need in our day-to-day life. And so rather than burning something, which is what we do typically with natural gas or with coal, nuclear splits atoms.

Uranium atoms.

HARDTMAYER: And when you split those atoms—

A process called fission—

HARDTMAYER: You create a lot of heat in the process that in turn boils water to go spin that turbine.

Eventually, the uranium is unable to sustain the fission process, and what’s left behind is called “spent nuclear fuel.”

HARDTMAYER: The fuel, which is a solid, it’s a ceramic pellet, they’re stored in these big fuel pins and fuel bundles. And then they’re put into a spent fuel storage pool, for four to 10 years or so.

These are specially designed pools of water.

You need that because those bundles and pellets are so hot.

So after they cool, they go to dry storage at the reactor site.

HARDTMAYER: The spent fuel is put inside these gigantic cement casks that can withstand getting hit by a rocket powered train. That’s the design tolerance they were tested to … that end up sitting at the parking lot at the reactor.

The parking lot, so to speak, is not exactly full. The waste doesn’t take up a lot of space—but it is dense. It’s heavy.

HARDTMAYER: You know, it’s surprising to a lot of people that if you took all that waste and stacked it up—

Stacked it about 10 yards high—

HARDTMAYER: it would cover about a football field in the U.S., right? So there really isn’t a whole lot of it. The trick with it is that because it’s been in that reactor, it’s radioactive.

So you have to shield people from it.

Texans worry about the risk of accidental exposure that could cause cancer or other health problems.

EICHER: Fifty-four nuclear plants operate in 28 U.S. states.

Nuclear power accounts for about a fifth of the electricity in America. It is considered clean energy, except for that toxic waste. Storing it above ground in cement casks was not the original plan.

Back in 1982, Congress asked the Department of Energy to deal with the problem of nuclear waste by finding a long-term storage repository underground. Twenty years later, Congress found a place to bury it, under Yucca Mountain in Nevada.

HARDTMAYER: Which is located nearby to Area 51, where the U.S. did a lot of its atomic testing back in the ‘50s and identified that as a long-term geological repository where there are very stable earth formations. And, you know, anything that goes down into that cavern, there’s nothing that’s going to happen down there.

Still Nevadans pushed back and it turned into a political quagmire.

With Barack Obama in the White House, he halted the program in 2009.

That brings us to present day at the U.S. Supreme Court.

ROUGH: For the Nuclear Regulatory Commission, Deputy Solicitor General Malcolm Stewart. He argued in support of the storage project in Texas. Justice Neil Gorsuch questioned Stewart about that big whole in the ground in Nevada.

GORSUCH: So Yucca Mountain was supposed to be the permanent solution. Congress so ordained — I think it said it had to be done by 1998. No president has complied with that in all the years since. We've spent something like $15 billion on it. It's a hole in the ground.

ROUGH: Justice Gorsuch said the new plan in Texas doesn’t seem very temporary. He’ll refer to the company that wants to build it, Interim Storage Partners, by its initialism ISP.

GORSUCH: And you parties seem to think the Yucca Mountain project is dead. And if that's true and there's no different permanent repository, how is this interim storage that the government is authorizing here in any meaningful sense and especially when I think ISP's given a 40-year license? That doesn't sound very interim to me.

MALCOLM STEWART: Well—

GORSUCH: And it's renewable too apparently.

MALCOLM STEWART: It is renewable. If they applied for a renewal of the license, there would be a new Commission adjudication. And to the extent that—

GORSUCH: Forty years from now.

MALCOLM STEWART: Forty years from now I don't mean to seem glib, but the repository is intended to keep nuclear waste stored safely for a temp—

GORSUCH: On a concrete platform in the Permian Basin, where we get our oil and gas from. So, hopefully, we won't have radiated oil and gas.

But Stewart argued the health and environmental risk is not the issue before the court. It’s simply whether the Commission has authority to grant the license.

EICHER: Two federal statutes are at play here: the Atomic Energy Act and the Nuclear Waste Policy Act. The parties favoring the Texas plan say there is nothing in the statutes expressly prohibiting the federal Commission from granting a license.

Justice Brett Kavanaugh discussed that with the lawyer for the would-be licensee: Interim Storage Partners.

KAVANAUGH: This is what you’re saying, I think: Congress would have explicitly prohibited private offsite had it wanted to do so? Is that what you’re saying?

BRADLEY FAGG: Yes.

The statutes don’t expressly prohibit, but neither do they expressly authorize it. Here’s Justice Clarence Thomas:

THOMAS: There’s no language that you could use to say that spent fuel shall be or is permitted to be stored offsite? You’re stitching together, it’s seeming, just constituent parts, not just spent fuel.

ROUGH: Solicitor General of Texas Aaron Nielson raised a big fear.

NIELSON: What the Commission has just done is put a permanent terrorist bulls-eye on the most productive oil field in America.

He does have well-publicized evidence.

Three Mile Island in the U.S. Chernobyl in Ukraine. Fukushima in Japan. These were human error, design defects, or natural disasters. But the fear of a deliberate attack, Justice Kavanaugh asked Nielson about that.

KAVANAUGH: In your opening, you used the phrase “terrorist bulls-eye,” which is obviously distinct language. We’ve known of that since at least September 11th, 2001. Yet Texas supported this project, as I understand it, correct me if I’m wrong, for several years.

He’s referring to the fact that before Governor Greg Abbott objected, former Governor Rick Perry seemingly approved the project.

Nielson clarified, not exactly.

NIELSON: That is not a ringing endorsement by Governor Perry. He was just going to say this is the best of the bad options.

EICHER: There’s another issue here, too. Under a federal law called the Hobbs Act, if you want to challenge an agency’s decision in court, you first have to have been part of the agency’s proceedings.

When the Nuclear Regulatory Commission took up the issue, Texas filed an objection, but did not intervene as a party. The landowners did try to intervene, but the Commission wouldn’t allow it. And now the NRC is invoking the Hobbs Act, saying neither Texas nor the landowners were parties to the proceedings, so the court has to dismiss the case.

Justice Elena Kagan said the Commission might be right on that point, even if it’s a bit unfair the agency has so much control.

KAGAN: It seems to me “party” means somebody who has participated in an agency proceeding with the degree of formality required for that proceeding. … I don’t see how we can say that you were a party.

ROUGH: The court could dismiss this case for that reason and never get to the merits.

If it does reach the merits, the justices might say the law of the land still calls for a permanent repository and kick the ball back to Congress to finish its job.

Whatever happens, the need for energy is not going away. If anything it’s growing, and nuclear could be the key.

Doug Hardtmayer, the nuclear engineer, would like our country to recycle spent fuel. Right now, the United States uses a “once through” cycle. It goes from the mine to the reactor to storage forever.

HARDTMAYER: If you took a log and threw it into the fireplace, and the log has bark on it. The once-through cycle is like burning the bark off the log and then taking the rest of the log and throwing it back out into the woods.

Other countries, like France and Japan, use a “closed loop cycle” known as reprocessing. The spent nuclear reactor fuel goes to further use.

HARDTMAYER: So a lot of this waste, as we call in here in the U.S., is still viable, and we can get a lot more energy out of it.

The United States considered reprocessing in the 1970s, but it went the way of Yucca Mountain. Just a big empty hole in the ground. So it may be time to start digging again.

And that’s this week’s Legal Docket.

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