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Evolution of U.S. Nuclear Waste Law and Policy 73 motion. The board invoked Section 114(d) of NWPA, which provides that NRC “shall consider” the application submitted to it and “issue a final decision.”503 It stated that NWPA “does not give the Secretary [of Energy] the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit.”504 It found that Congress had determined that a repository should be built at Yucca if NRC determined that it would meet applicable regulatory standards, and that DOE’s effort to derail the NWPA decision process by asserting a policy judgment that Yucca is not a workable option contravened Congress’s intent.505 DOE appealed the board’s decision to the commission, which heard oral argument on July 9. However, because of divisions among the commissioners, the commission has been unwilling to bring the matter to a vote. At the same time, a group of cases brought by South Carolina, Washington, and others seeking review of DOE’s effort to withdraw the Yucca license application and presenting essentially the same legal issues as the commission’s proceeding have been pending in the D.C. Circuit Court of Appeals.506 The court had originally stayed proceedings on the cases pending a commission decision, but on January 10, 2011, it scheduled oral arguments for March 22.507 DOE’s attempted license withdrawal has also prompted fresh litigation over DOE’s failure to take responsibility for the SNF as mandated under NWPA. Yucca Abandoned: Repository Limbo, Orphan Waste Challenges As a consequence of the abandonment of Yucca by the Obama administration, the nation ’s accumulated SNF and HLW now lack a disposal pathway. The NWPA strategy for dealing with the nation’s most highly radioactive wastes—a strategy that has been the fundamental underpinning of government nuclear waste regulatory and policy decisions for more than twenty-five years—lies in ruins. At the same time, President Obama has embraced the expansion of nuclear power. In his 2010 State of the Union address, the president proposed “building a new generation of safe, clean nuclear power plants.”508 On February 16, 2010, he announced more than $8 billion in federal loan guarantees to the Southern Company for construction of two new nuclear power plants, which would the first built in the United States since the 1980s, and promised support for more plants. The total amount of new federal loan guarantees in Obama’s budget proposal for 2011 is $36 billion. There is $18.5 billion already authorized for this purpose, for a total of $54.5 billion in federal loan guarantees.509 This generous subsidy has been sharply criticized by a number of groups, including the Union of Concerned Scientists, Physicians for Social Responsibility, the National Taxpayers Union, Taxpayers for Common Sense, the George Marshall Institute , the Heritage Foundation, and the Non-Proliferation Policy Education Center.510 Broad public support for the president’s nuclear initiative may well depend on there being a credible plan for dealing with the country’s growing accumulation of nuclear power wastes. There is no single centralized source of information on how much commercial SNF is currently in storage at reactor sites, but recent estimates place it between 62,500 and 65,000 MTHM.511 The waste is stored in pools or dry casks at 104 nuclear 74 Fuel Cycle to Nowhere power plants and several other facilities located at seventy-seven sites in thirty-five states.512 New SNF is generated at a rate of approximately 2,000 MTHM per year.513 Assuming a steady rate of generation, accumulated stocks of commercial SNF would reach an estimated 165,000 MTHM by 2060.514 Commercial SNF inventories either already have or shortly will exceed the statutory cap of 63,000 MTHM on commercial SNF that may be disposed of at Yucca. DOE is responsible for another 2,500 MTHM of SNF, which includes defense and other government SNF as well as some commercial, research, and foreign SNF.515 This includes 2,129 MTHM at Hanford, 280 MTHM at INL, 28 MTHM at SRS, 15 MTHM at Fort St. Vrain, and 3 MTHM at other sites, including Argonne, Brookhaven, and Sandia National Laboratories and some university research reactors.516 DOE is also responsible for approximately ninety megagallons of liquid HLW, primarily at Hanford and SRS with a quite small amount...

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