The US Department of Energy’s failure to transport and store spent nuclear fuel (SNF) pursuant to the Nuclear Waste Policy Act has required the government to reimburse the industry for substantial storage costs, and future payments are expected to increase. The DOE expects that its SNF liability has increased approximately 10% within the past year. While there are no expectations for a spent fuel storage solution in the United States anytime soon, other countries are establishing nuclear waste repositories.
Background
In the early 1980s, pursuant to the Nuclear Waste Policy Act of 1982, the DOE entered into written contracts, known as the Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Waste (Standard Contracts) with the owners of US nuclear power units. Pursuant to the terms of the Standard Contracts, the DOE agreed to accept and dispose of SNF generated by commercial nuclear power units beginning on or before January 31, 1998, in exchange for payments from the industry into the Nuclear Waste Fund.
The DOE partially breached the Standard Contracts by failing to accept SNF for disposal as required, in part because the United States failed to establish a permanent repository where the DOE could store SNF, but it is still legally responsible for the storage of US commercial spent nuclear fuel.
DOE Reimbursements for Failure to Perform Pursuant to the Standard Contracts
As a result of the lawsuits stemming from the government’s partial breach of the Standard Contract, including for annual claims made pursuant to settlement agreements, the DOE annually reimburses the industry millions of dollars for damages incurred for storing SNF in the absence of a permanent repository.
The DOE’s estimated future SNF liability has recently increased significantly. An audit by the Office of Inspector General of the DOE concluded that the future liability has increased from a range of $34.1 billion to $41 billion in 2023 to a range of $37.6 billion to $44.5 billion in 2024. These figures exclude the approximately $11.1 billion that the DOE has already paid for its breach of the Standard Contracts.
International Developments Regarding Storage of SNF
Meanwhile, other countries have taken meaningful steps toward spent fuel disposal, including developing or expanding permanent repositories.
Canada’s Nuclear Waste Management Organization (NWMO) recently selected a location in northwestern Ontario to construct a deep geologic repository to store SNF. The NWMO coordinated with the Wabigoon Lake Ojibway Nation to site the repository in the Revell Lake area near Ignace. NWMO anticipates regulatory approval of the repository will be completed in 2032, with the facility becoming operable between 2040 and 2045.
Sweden is considering a permanent repository for SNF at the same location as its repository for short-lived radioactive waste at Forsmark. Sweden’s Radiation Safety Authority recently approved a safety report for expanding the repository, which began operating in 1988, from a final disposal capacity of about 63,000 cubic meters of waste to a capacity of approximately 200,000 cubic meters.