Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste

Conclusion

184 Fuel Cycle to Nowhere The last site, Los Alamos, which contains about 10 percent of the buried TRU, is not subject to CERCLA, but it is being evaluated under agreements with the State of New Mexico and is regulated under RCRA and state law.264 According to a 2007 GAO report , the provisions of the agreements regarding Los Alamos are substantively similar to those for sites subject to CERCLA; therefore, the cleanup effort will not differ dramatically when compared to the CERCLA-regulated sites.265 While no decision has been made on the final disposition of TRU waste buried at Los Alamos, DOE has announced that it believes much of the waste is irretrievable and will therefore remain buried.266 Of the two options for final disposition of the buried waste—exhumation and shipment to WIPP, or construction of engineered barriers—DOE prefers the latter, due to cost concerns. DOE estimated that the cost of addressing buried waste at INL, mostly through constructing engineered barriers, would be around $1 billion. If DOE were required to retrieve all the buried TRU, it estimates that the cost would exceed $8 billion .267 DOE has also estimated that if it were required to exhume all the buried TRU, the total amount requiring geologic disposal would exceed WIPP’s statutory cap by sixty thousand cubic meters (i.e., by about 35 percent of WIPP’s total capacity).268 Nevertheless , critics have pressed for exhumation, arguing that it is inconsistent to have different policies for buried TRU and newly generated TRU.269 This controversy notwithstanding, WIPP is broadly regarded as functioning successfully . The Obama administration has not changed any of the basic elements of WIPP’s operation, but it has participated in the development of a protocol to improve communication between western state governors and DOE on the issue of regional planning for waste shipment.270 The protocol requires DOE to provide advance notice of TRU shipments to WIPP.271 In March 2009, $172 million in new funding was allocated for WIPP under the American Recovery and Reinvestment Act.272 The money was to be used to accelerate preparation and shipment of TRU wastes to WIPP, and to modify the WIPP facility to accommodate different types of waste containers.273 Conclusion The history of WIPP illustrates vividly how a working relationship between the federal government and a host locality and states can evolve in a mixed dynamic of contention and cooperation that ultimately succeeds in satisfying the basic interests of most major stakeholders. The legal and political safeguards of federalism, which New Mexico invoked through litigation, its congressional delegation, the RCRA permit authority that it eventually acquired, and other means, enabled it to gain a voice in decisions about WIPP and to have significant influence over them. The absence of a federal blueprint for the facility set in advance gave the federal government and New Mexico the flexi­ bility to work through issues as they arose and impelled a step-by-step approach to decision making that enhanced the state’s ability to influence key features of the facility. The WIPP experience shows that it is both possible and desirable to develop a major nuclear waste facility with the assent of the host locality and state. The background conditions, however, were favorable to a successful resolution. These include Carlsbad’s depressed economy, the weakness of the state economy, and New Mexico’s generally positive past and then-present experience with federal nuclear activities and facilities within the state. WIPP: The Rocky Road to Success 185 These favorable conditions may not be replicated in other settings. Other important factors in the eventually successful development of WIPP were the step-by-step evolutionary process by which the facility was developed, and the state’s ability to gain leverage in decision making at key stages of the process through successful litigation that challenged DOE actions and through legislation won by its congressional delegation. The siting and host-state involvement, the negotiated agreement processes, and the adaptive phased decision-making process recommended in Chapter 8 for siting future repositories or consolidated storage facilities reflect the important role played by these mechanisms in facilitating a successful outcome for WIPP. WIPP is functioning without major incident and is well on its way to safely disposing of the bulk of the nation’s TRU waste, relieving thirty-one communities that host DOE facilities with TRU, and the states in which they are located, of the burden of these wastes.274 WIPP...