Nuclear Stalemate: Indefinite Above-Ground Storage Is a Temporary, Albeit Safe Band-Aid for a Serious Wound

"To say that after 20 years and nine billion dollars spent on Yucca Mountain, that there's not an option, period to me is [a] remarkable statement." --Senator John McCain, Arizona (1) INTRODUCTION The disposal of America's high-level nuclear waste and spent fuel has been the proverbial monster lurking in the bedroom closet for decades. (2) The volume of radioactive waste continues to grow at a steady rate annually, and states are running out of places to store the hazardous byproduct. (3) Congress, anticipating this problem years ago, established a statutory framework for a geologic repository site that all states could use to permanently dispose of nuclear waste in a safe manner. (4) The disposal project has repeatedly stalled, however, due in part to intense politicking, "not in my backyard" mentalities, and logistical issues. (5) Within the past six years, the Obama Administration has pulled the plug on the entire project and sought alternative options. (6) Unfortunately, as factions battle over the best course of action, radioactive waste and spent fuel continue to accumulate at nuclear reactors across the country. (7) This dire situation spurred a court decision that prompted the Nuclear Regulatory Commission to promulgate the Continued Storage Rule (the Rule) in August of 2014, which lifted the moratorium on reactor construction and expansion by allowing indefinite above-ground storage of nuclear waste. (8) The Commission recognized this move as a somewhat temporary solution, (9) but some experts have criticized the agency, contending that the Rule amounts to a band-aid fix that simply prolongs the inevitable permanent disposal problem. (10) A significant amount of research has emerged elucidating the roller-coaster ride that Yucca Mountain has been for lawmakers, the nuclear industry, and citizens of affected locales. (11) Indeed, the volume of complex issues revolving around nuclear energy and its place in America's energy future is staggering. Not surprisingly, there are many ideas about how to best combat the negative physical byproducts of nuclear energy. (12) Notwithstanding this vast universe, this Note focuses on the validity and wisdom of the Nuclear Regulatory Commission's approach: the September 2014 Rule and accompanying Generic Environmental Impact Statement (GEIS), as well as their combined potential to significantly alter the trajectory of spent fuel storage and disposal in the United States. (13) Part I will explain the relevant history helpful to understand the political battles and legal issues surrounding spent fuel disposal and the Yucca Mountain project. Parts II and III will analyze the implications of the new Continued Storage Rule and why it likely satisfies all applicable statutory requirements and judicial orders. Part IV will review industry and public reception of the new Rule and analyze the wisdom of its inception from a policy standpoint. Finally, Part V will conclude with suggestions about the trajectory of our nation's long-term spent nuclear fuel storage and permanent disposal. I. HISTORY AND POLITICS A. Background Before the establishment of the Nuclear Regulatory Commission (NRC), responsibility for nuclear regulation was delegated by the Atomic Energy Act (AEA) of 1954 to the Atomic Energy Commission. (14) Given the excitement encircling this new source of electric power in the 1950s, the Atomic Energy Commission was primarily focused on encouraging the development of the promising technology in a safe manner. (15) However, the initial surge of public support quickly waned as Americans became concerned with the immense perceived hazards associated with nuclear facilities. (16) By 1974, the Atomic Energy Commission had come under widespread assault for a variety of reasons, (17) and Congress summarily decided to abolish the agency altogether. (18) Realizing that the promotional facet of nuclear power should be separated from the regulatory facet, legislators passed the Energy Reorganization Act of 1974. …