Consent-Based Siting (CBS)
Less than five years after the passage of the NWPA and the federal government’s commitment to “consultation and cooperation,” Congress effectively cancelled any consultative process and designated Yucca Mountain as the sole site for study as the future home of the nation’s repository. The Nuclear Waste Policy Amendments Act (NWPAA) of 1987 directed that “[t]he Secretary [of Energy] shall terminate all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site, within 90 days after the date of enactment…” (NWPAA Section 160(a)(2)). Environmental impact and site characterization studies for possible repositories in Hanford, Washington, and Deaf Smith County, Texas, were halted before the work could be completed. While the CBS process for a permanent repository effectively died with the NWPAA, the 1987 law did kick off a CBS process for a monitored retrievable storage (MRS) facility to store SNF while the Yucca Mountain site was developed. The Office of the Nuclear Waste Negotiator (ONWN) was established to “attempt to find a State or Indian tribe willing to host a repository or monitored retrievable storage facility at a technically qualified site on reasonable terms and shall negotiate with any State or Indian tribe which expresses an interest in hosting a repository or monitored retrievable storage facility” (ibid., Section 402(b)(2)). In 1991, 16 Tribes and four communities applied for $100,000 grants from the ONWN to study the possible pros and cons of hosting an MRS facility. Several of these initial applicants, including the Mescalero Apache Tribe in New Mexico, continued to apply for
CBS is the process of siting HLW and SNF storage and disposal facilities in a manner that is transparent, phased, adaptive, standards- and science-based, and governed by partnership agreements. In the late 1970s and early 1980s, the federal government sought to involve states, Tribes, and localities in a CBS process, even codifying it in the 1982 NWPA. However, CBS was thrown by the wayside when Congress unilaterally designated Yucca Mountain as the site to be studied for the nation’s repository in 1987. CBS has had a checkered history in the years since. The BRC acknowledged the importance of CBS and cited successful domestic endeavors like the WIPP, as well as successful foreign projects like those in Finland, Sweden, and Canada. As DOE moved to implement the BRC’s recommendations in the 2010s, a great deal of focus and momentum was put into making sure all new projects were consent-based. This initiative was shuttered with the inauguration of the Trump Administration. Since the very early attempts to find a solution to the nation’s HLW and SNF disposal problems, consent-based siting has been the recommended approach to choosing a permanent, deep-mined geologic repository. In 1978, President Jimmy Carter formed the Interagency Review Group (IRG) on Nuclear Waste Management to review the nation’s current state of radioactive waste, solicit public input, and deliver recommendations on how to move forward. Much of the IRG’s recommendations were part of the 1982 NWPA, including that “a state would be in agreement with each step of the [repository development] process before the next activity [would begin]” (Metlay 2013, p. 28). The IRG called this strategy “consultation and concurrence.”The 1982 NWPA called it “consultation and cooperation.” “Consultation and cooperation” appears in the NWPA nine times. The Act goes on to define the process of consultation and cooperation as: …a methodology by which the Secretary [of Energy] (A) keeps the State and eligible Tribal Council fully and currently informed about the aspects of the project related to any potential impact on the public health and safety and environment; (B) solicits, receives, and evaluates concerns and objections of such State and Council with regard to such aspects of the project on an ongoing basis; and (C) works diligently and cooperatively to resolve, through arbitration or other appropriate mechanisms, such concerns and objections (NWPA Section 135(d)(4)). The NWPA goes on to explain that this process does not give states and Tribes absolute veto power over siting decisions. This tenuous balance between an all-powerful federal government and total state, local, and tribal veto power has defined the CBS debate since the 1980s.
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