Can Collaboration Succeed in Siting a Spent Nuclear Fuel Facility in the United States?—A Challenge in Political Sustainability

Abstract

We examine the U.S. Department of Energy (DOE)’s consent-based collaborative process to locate, build, and operate one or more federal consolidated interim storage facilities (FCISFs) for commercial U.S. spent nuclear fuel—instead of continuing to store the material at over 70 nuclear reactor sites. Technocratic siting of nuclear facilities in the U.S., most of which did not involve meaningful public participation, was not successful. We consider increasing pressure to find at least one FCISF site, as well as the critical role of trust in engaging communities and gaining their consent—leading some observers to assert that DOE is in the “trust building business”, not the siting business. We present case studies with the following: (1) illustrating community engagement that led to a more satisfactory outcome than had been anticipated (Fernald); (2) a planned consent-based process that failed to gain consent (Office of the Nuclear Waste Negotiator); and (3) a site that demonstrates the ongoing need for negotiations to keep a site open and operational (Waste Isolation Pilot Plant). The essay concludes with the observation that a consent-based siting effort can succeed in the U.S., but that five main challenges—related to trust and requiring patience—will need to be addressed.

1. Introduction

Consent can be colloquially defined as granting or gaining permission for something to happen. This term has formal definitions in fields including medicine, law, research, etc. [1,2], and repercussions exist when a consent-seeker in these contexts neglects their responsibility to gain consent. The stimulus for this review is an effort by the U.S. Department of Energy (DOE) to gain and sustain consent for a federal consolidated interim storage facility (FCISF) site to store commercial spent nuclear fuel (SNF) [3]. This FCISF would be used to store SNF until such a time when it could be disposed of within a geological repository.

According to DOE, agreement on the definition of consent is integral to the process, stating that “DOE proposed to approach the question of consent—including what constitutes consent, how consent is to be determined, and the roles of communities, states, and Tribes in providing consent—as another issue to be negotiated with individual communities and appropriate levels of local, Tribal, and state governments” [4]. In the facility siting context, generally, consent refers to mutual agreement among persons, groups, and relevant government bodies for the location of a facility for which one of the actors (most frequently a government body or a commercial entity) is ultimately responsible.

A key responsibility of the consent-seeker is communicating risks, as well as benefits, to the host area. By providing reasonable details, the consent-seeker is protected from the charge that accurate and sufficient background was not provided to the consent-giver. The assumption is that DOE will be providing the best science about the risks, benefits, and uncertainties of their proposal to ensure that consent-givers are aware of any reasonably knowable potential harm. Yet, even in medical practice, where a long history of examining the ethics and practical implementation of consent exists, issues remain concerning the quality and quantity of information presented to patients [5]. How much information is necessary, and how a consent-seeker should go about engaging participants to disseminate that information, are not simple questions. For example, we have been asked by public officials and residents about so-called “spent fuel”. The words imply to some that spent fuel is nuclear waste that has been consumed and is no longer dangerous. A better expression is “somewhat used”, and the material is still radioactive and needs to be isolated from the environment for many decades.

Within the facility siting context, these questions become more complex, partially attributed to the many decision-makers involved in the process. For example, prior to negotiations, the parties have a good deal to decide. Will there be a single negotiator for each party, with multiple participants? Will there be a referendum of local stakeholders? Who represents the community, and what is the community? What are the responsibilities of consent-seekers and -givers during negotiations? These decisions are not easy for consent-givers to make because they may be representing large numbers of people with different views. Also, what type of consent is needed? Formal consent may be given in writing or verbally—and sometimes even non-verbally. However, for a siting process that involves multiple people and parties, a show of hands, a nod, or silence in response to a proposal can be problematic. For consent-based siting processes in the U.S., it is also important to recognize that communication between DOE and Tribal Nations is performed on a government-to-government basis and requires recognition of individual treaty rights—some of which are not granted to states and local governments [2].

We view consent-based siting of an FCISF in the U.S. as a potentially exciting innovation that could revolutionize the way enduringly objectional facilities are designed and sited. We focus on the answers to the following three research questions that have been central to the development and implementation of a consent-based collaborative siting process for an FCISF in the United States, and we return to these three questions in the final section.

• How much of a change in the industrial location process is implied by consent-based siting in the United States?
• What forces have contributed to the need for a consent-based siting approach?
• Can the U.S. Department of Energy and other responsible parties amass and maintain sufficient trust to successfully build and maintain a consent-based siting process?

Can the long history of technocratic siting of manufacturing facilities without meaningful public input be replaced by a process that necessitates major public roles? Before describing the methods we used, we note that the word trust is used more than seventy times in this paper. In Section 5, we zero-in on three key elements of trust for siting and maintaining local and state support for an FCSIF. However, since trust is part of earlier sections of the paper, we end this introduction by presenting a definition of trust that should suffice until Section 5. The Merriam-Webster online definition is “assured reliance on the character, ability, strength, or truth of someone or something”. The implication is that a person or institution can be depended on to act to support agreements.

2. Methods

This is a review article. However, it is not a conventional review article that summarizes and assesses existing research and does not report original research. Much of our preparation was conventional, that is, we submitted key terms and expressions to search Google Scholar (due to its expansive literature coverage that includes conference papers and government-sponsored reports in addition to peer-review journal articles) looking for references related to consent-based siting, public participation, location theory, and industrial location theory. A comprehensive list of keywords is not provided here, but examples include the following:

• “Consent-based siting”;
• “Risk communication”;
• “Radioactive waste management facility [RWMF] siting”;
• “Tribal engagement”;
• “Incentives for hazardous waste facility siting”;
• “Community participation in facility siting”.

The process was different from convention in two important ways. Readers will see that we have tended to cite original scholarship rather than secondary reports because derivative reports may not address all key messages or details found in the original papers. This is clearly the case in our responses to question 1 (Section 3), where we have gone back to some of the earliest location theory papers because they provide a flavor of how meaningful collaboration was not involved. A second deviation from convention is the introduction of three what we call “case studies” in Section 6. Examples are certainly part of review studies. However, typically, they are short. In this paper, we only introduce three, but they are critical to the challenge of finding a site to store nuclear waste in the United States (see Section 6.1, Section 6.2 and Section 6.3). Overall, regarding methods, this paper is a hybrid of a conventional review paper and the use of case studies to illustrate how this process faces major obstacles. The paper is drawn from a much larger report by the four authors for the U.S. Department of Energy [see Krahn et al. [6]].

The paper weaves in and out of different studies and case studies. To help guide the reader, Figure 1 maps the information considered to answer the three questions. The top rectangle begins with current conditions, and the reader should proceed to the box below it.

3. Question 1: The Top-Down Technocratic Approach—Historical Context for Consent-Based Siting

Requiring ongoing public consent is a recent concept in the U.S. history of facility siting, which previously paid little attention to the local public in favor of achieving economic efficiency. Hence, while this review article focuses on consent-based collaborative siting, we first discuss the history of facility siting in the U.S., because the consent-based siting process is a revolutionary siting strategy that has emerged out of necessity due to resistance to historical technocratic processes.

3.1. Technocratic Location Science

Traditional, technically oriented industrial location science offered few opportunities for community participation. Beginning in the early twentieth century through the 1960s, German and U.S. economists and geographers created a body of location science theory that drove practice. The locations of manufacturing and manufacturing-related facilities were considered the primary force behind rapidly growing urban-industrial economies around the world [7,8,9,10,11,12]. Location scientists were expected to find sites that would maximize economic profits through cost minimization. The feedback loop between a successful industrial location and local economic growth was captured in the literature of the 1950s and 1960s that emphasized attracting manufacturing rather than retailing and wholesaling [13,14,15].

To minimize costs, siting protocols focused on finding places where raw materials could be shipped at the lowest possible cost and from where final products could be shipped to large markets. Investments in roads, railroads, and ports were critical to minimize long-term transportation costs and improve efficiency. Government support was obtained through discussions with state and local governments and private sector leaders with desires to obtain credit for growing the local economy [16,17,18]. By comparison, little time was devoted to the human and environmental impacts. In the U.S., the announce and build process ruled industrial location siting until the 1970s when it became clear that senior elected officials and a growing proportion of the U.S. population desired a shift from announce and build toward a process accounting for public input [18].

3.2. Nuclear Power Plant Siting: Limited Public Input into the Technocratic Siting Process

Commercial nuclear power generation was a signature technology of President Dwight Eisenhower’s plan to change perceptions from the “destructive” atom (i.e., associations with nuclear weapons) to the “peaceful” one [19]. By the early 1960s, government sources predicted that the U.S. would build 200 nuclear power plants of 1000 megawatts and that “nuclear power was on the threshold of economic competitiveness” [20]. About half of the predicted number of units were built in the U.S., most during the 1970s [21]. At that time, management of SNF and other residuals was not a major topic of public discussion, as policies assumed the SNF would be recycled.

Nuclear power plants were sited in the U.S. during this time used a variant of technocratic location science that allowed for limited community participation. Government requirements for nuclear power plant sites were built around federal government and utility regulations. For example, a regulatory document, 10 CFR 1.100, Reactor Site Criteria [22], had three requirements: (1) an exclusion area surrounding the nuclear plant where public access is limited and residence is not allowed; (2) a “low population zone” (LPZ) surrounding the exclusion area where the number of residences is small enough to be evacuated or sheltered; and (3) a “population center distance” (i.e., distance from the reactor to the nearest densely populated area of 25,000 or more residents).

The rationale behind these federal government requirements was to reduce public exposure in the event of an accident, and fewer people within a 50-mile radius of a plant meant fewer people would need to be evacuated or sheltered. The land use and demographic requirements, as well as the numerous technical requirements about the facilities and organizations, were addressed by nuclear power plant license applicants as part of environmental impact statements (EISs)—required after passage of the National Environmental Policy Act (NEPA) in 1970. These EISs presented numerous tables, graphs, and maps filled with technical data that the federal government could use to evaluate the environmental, safety, and health impacts of potential nuclear power plant sites. However, the information in these highly technical reports was not easily interpreted by non-experts. The public could examine these EIS documents. However, in this pre-internet era, the massive documents (which filled a library cart when wheeled into meetings) were available only in a few places (e.g., the local public library, city hall). The impression of observers was that U.S. government decisionmakers, then the Atomic Energy Commission (AEC) and later the Nuclear Regulatory Commission (NRC), regarded public input as required but, from a technical perspective, not necessarily useful [23,24,25,26].

Top-down technocratic processes did not permit community members to veto siting decisions. Interested members of the public were provided time to make brief statements at hearings conducted by the AEC. As a witness and visitor at multiple hearings, one author of this article notes that lawyers employed by opponents and surrounding governments asked many questions, typically focusing on the following: evacuating people; whether the AEC should grant a license to a proposed site in a small city or suburb; and how much the federal government trusted 50-year population projections required as part of the license application (M. Greenberg, personal experience). Federal officials heard these concerns and suggestions and acted on some of them. For example, federal officials modified their estimates of allowable populations near sites, evacuation guidelines, and later, when the public realized that more than the expected number of people were moving to the host community, the NRC developed a procedure to redistribute revenues from the utilities across the host states because some people were attracted by low local taxes [24,25]. To conclude, the top-down process was not as rigid as it may seem on paper, nor, however, was it as open as it might have been, and certainly, “consent-based” or collaborative were not an appropriate descriptor for the process.

4. Question 2: Forces Contributing to a Consent-Based Siting Approach

Over the past three decades, the move toward consent-based siting has been driven by increasing pressures on the U.S. federal government to find one or more away-from-reactor locations to store SNF. Currently, commercial nuclear fuel is stored at about 70 reactor sites located in over 30 of the 50 U.S. states [26,27,28]. An increasing amount of SNF is one motivation for locating an FCISF.

The motivation for an FCISF is multi-faceted. First, federal consolidated interim storage may provide economic benefits, reducing energy rate-payer burdens associated with utilities to store and secure SNF on reactor sites (both operating and decommissioned). Second, DOE was made responsible for taking control of commercial SNF in January 1998 as specified in the Nuclear Waste Policy Act of 1982 (NWPA, as amended); however, DOE has yet to meet this contractual obligation, resulting in the payment of billions of dollars in damages (According to the GAO, the federal government paid almost USD 9 billion in damages to utilities through 30 September 2020 [27,28]) from the Federal Judgment Fund to plant owners and operators. The opening of an FCISF would allow DOE to begin to meet this obligation—ultimately reducing taxpayer liabilities. Finally, the lack of sites for consolidated storage and, ultimately, SNF disposal, may be viewed as a roadblock for expanding nuclear energy generation in the U.S., with some states blocking construction of new nuclear plants until acceptable solutions exist [27,28].

A question that has been raised about the proposed FCISF is what does “interim storage” mean? We have heard different estimates that range from 40 years with additional license renewals to 300 years. In essence, we expect that communities and state officials will assume that these interim sites are permanent above-ground fixtures, and they will need to be persuaded that the DOE can manage such a site for many generations.

4.1. Public Pressure to Manage Locally Unwanted Land Uses

Traditional location science assumed that siting decision-makers had all the necessary information, and their motives were focused on organizational profit, i.e., not personal motives. However, over time, researchers learned that decision-makers could have personal motives and knowledge that colored their views toward potential sites [29,30]. Publication of such studies began to undermine trust in and reliance on an economic efficiency technocratic model.

An important finding in the late 20th century was survey research that revealed that proposed manufacturing and waste management sites faced increasing public and political opposition to locally unwanted land uses (LULUs) [31,32,33,34,35]. This increasing opposition, especially in siting “noxious” facilities, including chemical production and nuclear facilities, resulted in the emergence of a set of widely used acronyms to combat LULUs and Temporarily Obsolete Abandoned Derelict Sites (TOADS):

• BANANA—build absolutely nothing anywhere near anyone;
• NAIMBY—not always in my backyard;
• NIABY—not in anyone’s backyard;
• NIMBY—not in my backyard;
• NIMTOO—not in my term of office;
• TISE—take it somewhere else.

Surveys have since labeled many of these LULUs as “enduringly objectionable” [36,37]. Kunreuther, Fitzgerald, and Aarts [38] developed the “facility siting credo” that was the product of meetings of those who had attempted to site LULUs. Their guidelines are as valuable today as they were when first published over 30 years ago. Many elements of these siting guidelines (below) are consistent with, indeed, what we would argue as necessary, i.e., those needed to achieve consent-based collaborative siting.

• “Institute a broad-based participatory process”.
• “Achieve agreement that the status quo is unacceptable”.
• “Seek consensus”.
• “Work to develop trust”.
• “Choose the solution that best addresses the problem”.
• “Guarantee that stringent safety standards will be met”.
• “Fully address all negative aspects of the facility”.
• “Make the host community better off”.
• “Use contingent agreements”.
• “Seek acceptable sites through a volunteer process”.
• “Consider a competitive siting process”.
• “Work for geographic fairness”.
• “Set realistic timetables”.
• “Keep multiple options open at all times”.

4.2. Increasing Pressure on Government to Find Waste Management Sites for Commercial Nuclear Waste: The Interagency Group and Blue Ribbon Commission

The long half-lives of some isotopes within SNF make siting storage and disposal facilities for this category of RWMFs especially challenging. For example, Stewart and Stewart [39], Walker [40], Richter et al. [41], Webler and Tuler [2], and Swift [42] have documented challenges in siting RWMF—one of the most notable challenges being a multi-stage search for an underground repository, culminating in multi-decadal efforts at Yucca Mountain and WIPP. We briefly highlight several steps of these siting processes that have prompted the move to consider consent-based siting. (The siting of low-level radioactive waste management facilities is outside the scope of this review; however, we note that siting such facilities should not be construed to be a trivial problem [43].)

During the Carter Administration in 1978, the Interagency Review Group (IRG), convened by the President after his decision to defer commercial SNF reprocessing, recommended that government preemption of the siting and operation of RWMFs would be opposed and, therefore, the national government’s role should include “consultation and concurrence”. Congress changed the wording to “consultation and cooperation” when it passed the NWPA of 1982, which included the idea of public involvement, not consent.

Under President Obama, the Blue Ribbon Commission on America’s Nuclear Future (BRC) was created “to conduct a comprehensive review of policies for managing the backend of the nuclear fuel cycle and recommend a new strategy” [44,45] after his decision to stop the development of a permanent geological repository at Yucca Mountain. After two years of meetings, testimony, and deliberation, the BRC observed the following:

“Siting storage or disposal facilities has been the most consistent and most intractable challenge for the U.S. nuclear waste management program. The erosion of trust in the federal government’s nuclear waste management program has only made this challenge more difficult.” [45] (p. viii)

Using Canada, Finland, and Sweden as examples of countries that were making progress, the BRC [45] recommended creating a consent-based siting process that would be “flexible, adaptive, and responsive” as well as “open and transparent … with broad public participation”. (See Section 7 below for more about these three countries.)

On 23 December 2015, the DOE requested public comment on a consent-based siting process. After public meetings at ten U.S. locations, the DOE [46] observed that the lack of public trust and the need for a comprehensive process were major obstacles to siting. DOE [47] issued a draft consent-based process for public comment on 12 January 2017. The DOE embraced its consent-based collaborative policy.

4.3. Information About the Benefits of Public Engagement for Siting Multiple Types of LULUs Increases

Ongoing research in and outside the nuclear industry supports the benefits of increasing public cooperation in siting. For example, Jenkins-Smith et al. [48] surveyed over 2000 Americans about nuclear energy and technology. The results indicated that the public was more likely to support an SNF storage facility supported by a majority of the residents of the potential host state. Eighty-two percent of U.S. respondents wanted local farmers and ranchers to have a voice in the final decision, and 56% believed the local population should have a veto. In comparison, only 27% wanted the state governor to have a voice and a veto. Regarding SNF, the public preferred permanent storage over continued on-site or interim storage.

Expert groups in public participation have contributed to the dialogue surrounding RWMF siting. For example, an Expert and Citizen Assessment of Science and Technology (ECAST) network was created in 2010 to test the use of participatory technology assessment [42] to build trust toward siting SNF facilities among science experts and community groups. ECAST and others concluded that the U.S. federal government’s technocratic location process was problematic in the context of the 21st century [40,49,50,51,52,53,54,55,56,57,58]. ECAST identified the following as key focal points for achieving agreement between the federal government and other parties (especially communities), mirroring many of the principles of the Kunreuther, Fitzgerald, and Aarts [38] facility siting guidelines described earlier:

• Ensuring that procedures and outcomes were fair;
• Building sustainable trust through transparency and empowering communities;
• Address community health and economic needs;
• Distribute power so that each level of participant plays important roles and has the right to withdraw consent;
• Design the process to be adaptable to change.

Supporting evidence was also gathered outside the nuclear industry. While space does not permit a review of it, we note that, according to the U.S. Environmental Protection Agency, land use decision-making processes report some success when collaboration and consent are part of the decision-making process [59,60,61,62,63,64,65,66,67,68].

The DOE’s recent consent-based siting documents speak directly or indirectly to elements of successful cooperative programs, including flexibility. One clear change from the 2017 plan [47] is the emphasis on one or more FCISF sites, rather than a permanent repository. The report recognizes the need for process flexibility, e.g., the need to build trust between DOE and communities; emphasis that communities have the right to withdraw from the process, which some studies on consent-based siting do not include; opportunities for local communities to suggest siting criteria—a remarkable change from the days of location science and technocratic-centered processes; and the need for federal financial support for communities interested in hosting an FCISF. These ideas are also articulated in DOE’s 2023 handbook for its consent-based siting consortia [3,4] and in a DOE-published report on engaging with indigenous communities [69]. The last of these publications includes the following important perspective about building trust:

“Trust is built over time. It is important not to take it personally as trusting is not always immediate—it is a process that occurs in steps.”

Overall, the most recent DOE reports and efforts to investigate elements of consent-based siting demonstrate increasing federal recognition of the need to build relationships founded on trust that are more likely to succeed and endure than entirely top-down ones.

5. Question 3: Amassing and Maintaining Trust for Federal Consolidated Interim Storage Facilities (FCISFs)

Section 1 ended with a generic definition of trust. A large amount of non-fiction and fiction literature is devoted to trust. Two books titled Trust illustrated different elements of trust. For example, Francis Fukuyama’s Trust [70] asserts that a culture of trust stimulated economic growth in Japan, Germany, and the United States. Business associates cooperated to grow the economy, whereas countries such as France, southern Italy, and South Korea, he argued, were too focused on family relationships, leading to less cooperation at work. Trust built in the workplace is essential for economic growth. Fukuyama was an advisor to U.S. President Ronald Reagan. Hernan Diaz’s Trust [71] was a national bestseller and won several national literary prizes. His book describes the life of a wealthy man who moves in and out of being trustworthy based on circumstances. The book highlights that the trustor may rely on the trustee, but not all the time, with potentially dire consequences for the trustor. These two books illustrate the need to dig into the components of trust.

The DOE’s policies and actions emphasize the need to build trust to support the siting of an FCISF. The U.S. Nuclear Waste Technical Review Board (NWTRB), which is charged by Congress with a multi-faceted mission to oversee DOE’s science and technical programs related to nuclear waste storage, treatment, and disposal, sponsored a meeting in 2023 that directly focused on lessons learned from siting efforts. Leslie’s [72] report summarizes key findings from that meeting, which included representatives from Canada, Sweden, and Switzerland, as well as the U.S. Notably, the report finds that the U.S. government’s efforts to build an FCISF face a deficit in trust. Speakers at the NWTRB meeting noted that those seeking a site are “not in the siting business, but in the trust business”. Three examples are specifically mentioned as contributing to a deficit in trust. One is the Congress’s change in the language recommended by the IRG from “consultation and “concurrence” to “consultation and cooperation” in the NWPA in 1982 (see Section 4.2 above). Second, the panelists point to the 1987 Nuclear Waste Policy Amendment Act that limited site characterization and planning to Yucca Mountain, which has not opened. Third is Congress’s elimination of the Office of the Nuclear Waste Negotiator (ONWN), which was seeking to find a location willing to host SNF (see Section 6.3 below).

The attendees of the NWTRB meeting called for taking the time to build trust, including the federal government demonstrating unwavering support for its consent-based program and funding state and local governments to conduct due diligence examinations (e.g., see WIPP Section 6.3 below). This international panel of experts also emphasized the need to work with state governments that may attempt to block siting (see Section 6.2 below).

For purposes of this paper, we need to be more specific about who needs to trust whom about what. Here, we focus on the need for the local and state publics to trust three components of its interactions with the DOE’s consent-based siting process: (1) competence; (2) communications; and (3) values [73,74,75,76,77,78,79]. Professionals are expected to be educated in their disciplines and be aware of changes. Credible practitioners must also be able to communicate their expertise to non-experts, including reporters, adults at local meetings (and children at schools), and be prepared to respond to questions posted on the internet. Failure to communicate at acceptable intervals without using jargon leads to criticism and loss of resident trust. Experts also lose support when they are perceived as being conceited, arrogant, snooty, among other labels of distrust [80,81]. Values are the third part of trust. A good site may be opposed by community members who believe that their values have been violated by those who are greedy, dishonest, and/or in other ways, unfair or unethical (see example from non-nuclear waste case in Chester, Pennsylvania) [82,83,84].

Experts also observe that trust can change, and sometimes it will rebound, but not always [77]. In today’s world, bad news often dominates the media, and hence, trust is easily lost, and a loss of trust by association with an organization/profession is a common occurrence. For example, the authors were in the process of conducting surveys for DOE at the Hanford (WA), Idaho National Laboratory (ID), Savannah River (SC), and the Waste Isolation Pilot Plant (NM) when the Fukushima Daiichi events occurred. Six of the survey questions inquired about trust. Prior to Fukushima Daiichi nuclear site failures, a survey found that 65–76% of the 1400 respondents living within 50 miles of the sites “strongly agreed” or “agreed” that DOE and its contractors were trustworthy. Four months after the Fukushima Daiichi accident, competence-based trust fell about 10 points, and value- and communication-based forms of trust fell by about five percent, even though the U.S. DOE had nothing to do with the Fukushima accident. Arguably, members of the U.S. public interpreted the events in Japan as a sign that the worldwide nuclear industry’s management of these hazards was inadequate. In 2013, trust rebounded back to 2010 levels or higher, partly attributed to NRC actions of incorporating insights gained by evaluating the causes behind the Fukushima accidents [85,86].

The reality is that local communities, or at least trustworthy representatives of local communities, need to monitor compliance with agreements. Various authors have written about the need for healthy skepticism on the part of those expected to trust organizations in positions of power and subject to changing their position [87,88,89]. Also, outside the nuclear industry, trust-related challenges have been observed for climate change, the COVID-19 pandemic, the Ebola virus, electro-magnetic fields, genetically modified organisms, offshore gas and oil drilling, mining, urban development, etc. [90,91,92,93,94,95,96,97,98,99]. Unfortunately, most of these surveys lack pre-, during, and post-event samples—limiting the ability to measure changes in trust and policy implications. An exception is surveys collected by Bisconti Inc. [99] for the Nuclear Energy Institute since 1998. Recent results show that almost three-quarters of U.S. residents favor using nuclear energy and about the same proportion favor building new reactors. Regarding trust, the survey asked several interesting questions. Only 43% said that they knew how often the NRC monitored each plant, and less than 10% knew that it was daily. Once given the correct answer, both men and women were seen to be more supportive of nuclear energy [99].

6. Three Case Studies: Attempts to Build Trust and Reach Consent About DOE Nuclear Waste Management Projects

6.1. Fernald: An Early Success

The cleanup of the Fernald nuclear materials processing site is one example of collaborative decision-making involving DOE, state and local governments, and community groups, which was successful both in community engagement and saved the federal government time and dollars. The issue was to remediate a former uranium manufacturing site, close it, and implement a sustainable waste management system. This case study is not about siting a facility, but it does illustrate a successful outcome that included giving considerable advisory powers to the surrounding community and host state.

Located in Crosby, Ohio, Fernald processed uranium ore for use in DOE nuclear reactors at the Savannah River and Hanford Sites as targets to produce plutonium. It was situated on a 1050-acre site from 1951 until the processing ended in 1989 [100,101]. During the mid-1980s, off-site contamination of water and soil was reported, causing local distress because the Great Miami aquifer located beneath the site is the sole source of water for approximately 2.3 M people (May 1993). Furthermore, concern was raised when an employee was found dead on the site on 19 June 1987, and some suggested he had been murdered to cover up on-site exposures. This death was even the subject of an episode of Unsolved Mysteries, which was a U.S. television documentary show that was aired for 12 years highlighting unsolved crimes, paranormal events, and other unusual events [102]. In 1985, fourteen thousand Ohio residents filed a class action suit against the site that was covered in the New York Times [103]. Within this suit, DOE was accused of allowing uranium and waste to leak from the site. The activities at the Fernald site were seen as undermining DOE’s credibility at the time. Ohio sued the federal government, leading to more negative reporting from the national news media, including the news shows 60 Minutes and 20/20 [104].

In 1993, the parties to the dispute agreed to constitute a special advisory committee that would advise the DOE about four issues: (1) future use of the site; (2) residual risk and remediation levels; (3) options for disposing of on-site waste; and (4) priorities for remediation. The committee (Fernald Citizens, 2013) was headed by well-known and trustworthy residents of Ohio, included mostly members who lived near the site, and opened its meetings to the public. The group began its work in 1993 and was assisted by ex-officio members from DOE, federal EPA, Ohio EPA, and the Agency for Toxic Substances and Disease Registry. The committee provided recommendations for more than 20 years [105,106]. Gradually, the site became a nature preserve and education center, with DOE responsible for the legacy management of underground uranium wastes. Regarding future use, the advisory committee used charrettes (a collaborative planning and decision-making process) to create an image for the site that includes an education center, walking trails, legally binding institutional controls, and ongoing remediation of legacy waste. Two bottom line observations are that the original pre-committee estimates for remediation were over USD 10 B and 25 years. The final cost was USD 4.4 B, and the remediation took ten years [106].

This case demonstrates the vulnerability of top-down technical processes to distrust and the advantages of deep public involvement. Furthermore, Fernald illustrates that trust is easy to lose and difficult and costly—measured by time and money—to maintain. It underscores the reality that collaboration takes time, and forthright negotiations are at the heart of processes that have a chance to succeed.

6.2. The Federal Office of the Nuclear Waste Negotiator: An Early Failure

The Nuclear Waste Policy Amendments Act of 1987 established the ONWN to find a state or Indian tribe willing to host a monitored retrievable storage (MRS) facility (This is similar to the present DOE FCISF concept.) for the temporary storage of SNF generated by commercial power plants. Financial incentives were offered to potential participants. A total of USD 100,000 in federal funds was available to study the nuclear waste management system to engage states and tribes during Phase I of the process. Longer term, Congress authorized, as a baseline, the host state or Tribal Nation to receive USD 5 M/yr prior to the shipment of waste and USD 10 M/yr during the operational phase of the MRS facility. Those having an interest in pursuing the program after their initial studies could apply for grants of as much as USD 3 M or more for additional research, but applicants required approval from the State Governor or the Chief Executive of an Indian tribe [107,108]. States were required to transfer no less than one-third of the financial benefits, to be paid out by the federal government, to nearby local governments.

As of February 1993, when the federal government ended the program, a total of 29 organizations had applied for or indicated strong interest in applying for a Phase I and/or Phase II MRS grant. Of these, three were not accepted by the ONWN, leaving five county governments and twenty-one Indian tribes. Of these, four Tribes, whose applications for a Phase I grant were approved, withdrew from the process before the funds were issued, and eight others dropped out of the process. The remaining nine Tribes applied for Phase II-A grants, and four were approved. Objections by State Governors and public opposition prevented the five counties from moving forward in the process [109,110,111,112,113].

One of these Tribes, the Skull Valley Band of Goshute Indians (Band) in Utah applied for grants created by the ONWN to conduct its own research into the storage of nuclear fuel, including a Phase II-A grant. The Band believed that they were close to signing an agreement with DOE when the federal MRS program was canceled [114]. Shortly thereafter, a utility consortium (Private Fuel Storage, or PFS) reached out to the Band, and by December 1996, PFS and the Band had signed an initial lease (This lease was amended twice—once in May 1997 and then again in January 2002—to incorporate all mitigation requirements described in the final environmental impact statement) to store 40,000 tons of nuclear waste in dry casks on reservation land for up to 40 years. The NRC issued a 20-year away-from-reactor independent spent fuel storage installation (ISFSI) license to PFS in 2006—this license, which requires that the utilities retain title to the SNF stored, required full funding commitments to construct, operate, and decommission the CISF to be provided by PFS members prior to starting construction [115]. However, the PFS ISFSI has still not been built at the time of this report, which can be generally attributed to the following: (1) the State of UT, supported by opposition from the governor [116], enacting a series of statutes between 1998 and 2001 to ban or limit the storage and transportation of SNF [117]; (2) a provision to the 2006 National Defense Authorization Act—supported by the UT Congressional Delegation—to designate the area surrounding the Band’s land as a wilderness area to prevent the construction of a rail spur needed to transport SNF casks to the site; (3) opposition from the Department of Interior, who blocked PFS’s right-of-way application for a rail spur on the grounds that grant the application would be against the public interest because there still remained too many unanswered questions about the project; and (4) the formation of a cultural heritage organization, Ohngo Gaudadeh Devia (OGD) opposed the ISFSI, that, with the State of Utah, repeatedly petitioned appellate courts to review and vacate the NRC license.

This case study provides a powerful message to proponents of consent-based siting, which is that local interest is necessary but not sufficient. Consent has to be obtained from governors and others in the areas who may not live anywhere near the proposed site. Opponents of proposed sites launch multi-faceted attacks against proposed projects at federal, state, and local levels, targeting economic consequences, public health, ecological, and other vulnerabilities. The same vulnerabilities have been made in attempts to site liquefied natural gas (LNG), wind farms, and other energy-producing and waste management facilities [118,119,120,121,122,123].

6.3. The Waste Isolation Pilot Plant (WIPP): An Ongoing Test to Build and Sustain Consent

WIPP is the U.S.’s only deep geologic repository for disposal of nuclear waste. By law, WIPP only accepts transuranic waste (TRU) generated by the defense missions of DOE. The site is located 655 m below the surface in a salt bed near Carlsbad, New Mexico. The first shipments of TRU from Los Alamos arrived at WIPP in 1999, after much heated debate and considerable negotiations, which, by design, continue today. For context, DOE Carlsbad Field Office reports that the largest number of shipments to WIPP in a week was 27 and that, in 2021, WIPP averaged 10 shipments per week [124].

The transportation and storage of TRU to WIPP has been evolving for a quarter of a century. WIPP is located in southeast New Mexico. A limited number of routes can carry the waste. Unless directed by the state government, shipments from the north and west go through Santa Fe, New Mexico’s capital city. The process for siting the facility and transporting the waste to WIPP is covered in the Waste Isolation Pilot Plant Land Withdrawal Act (PL 102-5791992, as Amended in 1996 PL 104-201) [125]. The WIPP Land Withdrawal Act specifies that DOE will pay USD 20 M/yr to New Mexico for 14 years beginning with fiscal 1998. It does not specify what the funds are to be used for by the State, although it does specify that a portion will go the Lea and Eddy counties where WIPP is located. Section 16 of the WIPP Land Withdrawal Act [125] is dedicated to transportation and is notably the longest section of the legislation, specifying involvement by the NRC, training, equipment, etc., regarding the transportation of TRU to WIPP.

Based on our review of the legislation and personal familiarity with the complicated and evolving WIPP case, we point to several outcomes (these are only some of the outcomes), that illustrate that negotiations leading to the siting of a nuclear waste facility require proponents of building and operating an FCISF to be prepared to deal with different parties with different agendas:

• The EPA must renew the site license for the plant to continue accepting TRU waste;
• DOE funded the creation of a science expert panel that could and did challenge DOE’s plans;
• The State of New Mexico has received hundreds of millions of dollars from the federal government, and much of it has been used to fund road improvements to reduce the transport of TRU waste through Santa Fe and other urban bottlenecks on the path to WIPP;
• DOE has agreements that provide training, funding, and emergency response plans to local areas and Tribal Nations through which TRU waste is transported.
• DOE’s equipment to transport waste periodically has to be tested, drivers and other key personnel have to be certified [126];
• The site has a community relations plan that brings DOE and other parties together to evaluate potential issues of concern to the parties [127].

Jenkins-Smith et al. [128] displayed the results of public surveys that show gradual increases in New Mexico’s public’s trust in DOE. This is the case despite the increase in shipments to the site [129]—even in the light of operational occurrences at the site. For example, the site closed for three years in February 2014 when an underground fire occurred. While emissions were minimal, New Mexico fined DOE USD 73 M [130]. In May 2015, the State and DOE agreed to use the USD 73 M for road and water infrastructure and emergency preparedness. Notably, with regard to transportation, USD 34 M was allocated to road improvements in and around Santa Fe, and another USD 12 M was allocated to road improvements near Los Alamos [130]. New Mexico [131] reached an agreement with DOE in 2023 about renewing WIPP’s 10-year hazardous waste permit. The agreement includes additional state oversight of WIPP, an updated reporting on legacy waste in the U.S. that could conceivably go to WIPP, and stopping waste shipments if there is evidence of a human health or environmental threat. DOE also agreed to search for another geologic repository not located in New Mexico, and several other provisions. It is clear that the state government is negotiating for more influence in decision-making. The results of these negotiations appear to be logical in their progression, especially if trust is compromised as it was during the year 2014 underground fire. Furthermore, there is the possibility for more shipments into New Mexico and an increase in the site’s roles, such as proposed shipments of surplus plutonium for underground storage at WIPP [132].

The WIPP case has produced many lessons learned about the value of gaining and sustaining consent and collaborating. An impeccable record of transporting materials is necessary but will not prevent opposition. When proposing to transport SNF—or LNG, oil, or other solids or liquids for that matter—we should assume opposition will occur as demonstrated by case studies of different LULUs [118,119,120,121,122,133].

7. Progress in Other Nations: Canada, Finland, and Sweden

We caution the reader that the authors relied on written reports for this section because they have not been personally engaged in studies of SNF policies in these countries. With this caveat noted, we begin by noting that Canada, Finland, and Sweden have chosen to directly dispose of SNF and have policies that require collaboration. The fact that all three have sites underway suggests that their collaborative policies merit scrutiny. In late 2024, Canada, the U.S.’s northern neighbor, signed an agreement to build an underground repository with the Wabigoon Lake Ojibway Nation. The process of signing this agreement began in 2010. The process was managed by the Nuclear Waste Management Organization (NWMO), a non-profit organization, which collaborated with the tribal nation. Particularly noticeable elements of the agreement are that it is consent-based and demonstrates building and maintaining trust. It calls for phased development of the site and innovative changes that respect and emphasize public engagement and transparency, a design that emphasizes protecting water supplies, native land claims, and their rights and treaties, and promotes the long-term caretaking of the site shared by the parties. Braden and Macfarlane’s [134] article carefully traces the development of this program. Among the messages for the U.S. are the need to build trust, the requirement for patience, and willingness to work closely with local groups to overcome social, economic, and cultural obstacles, as well as technical challenges.

In Europe, Finland and Sweden, two other countries that have collaboration built into their siting processes, also have agreements to site underground repositories. The technologies were designed by the Swedish Nuclear Fuel and Waste Management Company. Both rely on canisters and deposition in bentonite clay. Early work began with surveys of Sweden’s bedrock data from the late 1970s. Kari et al. [135] discuss differences between the policies built into the siting process as reflecting cultural differences between the two countries. They describe Sweden’s approach as “involved partnership”, which places a great deal of power in the hands of the local community and developers of the site, whereas the Finnish site is characterized as “bystander partnership”, which they conclude that the local community has more to say about economic benefit and the community relies on the company to safely build and operate the sites. Both agreements required ongoing patient effort to build trust. These observations are carried forward into the conclusions that follow.

8. Discussion, Conclusions, and Future Policy Directions: Can a Consent-Based Siting Process Succeed in the U.S.?

We began the paper with three research questions. We discuss each before presenting our conclusions.

• How much of a change in the industrial location process is implied by consent-based siting in the United States? In the United States, a collaborative process is a major change and includes gaining and mainlining consent that is “out-of-box thinking”. Two generations ago, industrial location theory was entirely about maximizing profits and minimizing costs. Public preferences, perceptions, and values were not included. Indeed, the first author of this paper taught a location theory course to business, economics, and geography students, and his instructor taught the course for more than a decade. In essence, the era of announce, defend (sometimes), build, operate, and close when profits were no longer adequate has prevailed for much of U.S history.
• What forces have contributed to the need for a consent-based siting approach? Stepping back from the case of nuclear materials, collaborative siting is not unique to nuclear materials. A large proportion of the public resists landfills, incinerators, manufacturing plants, airports, highways, and many other so-called LULUs that emit noise, air, and water pollutants. A facility that stores spent nuclear fuel is high, if not first, on the LULU list. Finding a site is like looking for a needle in a haystack. Adding to the LULU label for a community is the potential of being labeled a nuclear sacrifice zone. Yet the U.S. government needs to try to find a site or sites, and its decades-long failure to open Yucca Mountain has forced it to repay money to utilities that have contributed to funding a site. Building new nuclear power plants without a waste management solution is illegal in some states. Also contributing to the need is the long-standing decision not to recycle nuclear fuel. France, Japan, Russia, and other countries have embraced the recycling option, which also requires a final disposal site but one that is smaller. They have more time. The fact that the U.S. government has chosen to bury surplus plutonium rather than blend it with nuclear fuel suggests that the United States is, at this time, not willing to consider the recycling of spent fuel at this time. However, the recycling option is likely to be revisited.
• Can the U.S. Department of Energy and other responsible parties amass and maintain sufficient trust to successfully build and maintain a consent-based siting process? The answer, as noted below, is yes. The fact that Canada, Finland, and Sweden are building sites implies that collaborative consent-based siting could work. Their sites represent locations where the nuclear industry is established in two cases and a tribal nation that will receive benefits and has negotiated an agreement that will respect the powers of the tribal nation.

Physically, the U.S. is a large country, indeed the 4th largest in the world (Russia, Canada, and China are larger) with 50 states, over 3000 counties, and over 90,000 local governments. There clearly are sites with similar attributes in the United States as those agreed upon in Canada, Finland, and Sweden. Eighty independent spent fuel storage installations (ISFSIs), dispersed over 35 states, are currently licensed in the U.S.; most of these store SNF at the reactor site on which the SNF was produced. Regionally dispersed FCISFs offer the DOE the opportunity to make a case for consolidated, secure, and protected storage of SNF that allows the DOE to meet its contractual obligations to nuclear power plant operators under the NWPA. Although we note that nuclear materials have been transported across the U.S. for decades, and the safety record to date is outstanding [136], we further note that there remains a need to plan for safe and efficient SNF transport to the chosen sites and use best practices in risk communication to relay this information to affected communities and the general public.

An in-depth examination of the entanglement of legal, political, and financial hurdles that exist may suggest that the problem is more complex than it appears at the surface. First, DOE’s CBS process document notes that DOE must have Congressional authorization to begin constructing a CISF—which, at present, DOE does not have. However, DOE does have the authority to move forward with collaborating with the public and potentially interested communities on the consent-based siting process and working to identify an interim storage site(s). DOE also has the authority to negotiate an agreement with a host community, as well as design and seek a license for a CISF [3].

The funding mechanism for one or more series of CISFs is also still in question. The U.S. Congress released USD 7.5 million from the Nuclear Waste Fund as part of the initial USD 27.5 million funding for the DOE-NE CBS Program. Present CISF documents do not yet address the anticipated source of funding for the FCISF(s)—since the larger project has only reached Critical Decision 0 (CD-0) in the DOE Project Management System (DOE Order 413.1), but the initial funding (albeit partial) from the NWF provides an indication that Congress believes that the NWF is a viable funding source for this project.

Earlier, we noted that some state governors may adamantly oppose an FCISF. This was one of the reasons for the ONWN, which was part of the NWPA of 1987. Thus, it is also reasonable to ask, “what happens if a state opposes the development of a federal CISF?” We note that the federal government does have the Federal Preemption capability under the Constitution’s Supremacy Clause. We assume that this would be a last option and anticipate that all efforts would be exhausted to reach an agreement at the federal, state, and local levels (as was the case at WIPP) prior to exercising this constitutional power. Nevertheless, given the failure of the Yucca Mountain repository project in Nevada, which had clear congressional support as evidenced in the NWPA of 1987, it would be inadvisable to dismiss state politics that could impact an agreement between the federal government and local communities.

The success of a consent-based siting program, as our research shows, will pivot around trust and the ability to make political agreements that include tradeoffs. This review essay points to multiple conditions that make reaching and maintaining trust during the life of such a program, especially the challenging political environment in the U.S.

1. The present local residents have to be willing to agree, and their agreement has to be sustainable into the foreseeable future. (see Section 1, Section 4.2, Section 4.3, and Section 6.1, Section 6.2 and Section 6.3) Will communities be able to sustain their trust in DOE as a partner in the enterprise?

2. Will DOE face fairness and justice challenges if the vast majority of interested parties represent poor people of color? (see Section 4.1, Section 4.3, Section 5, and Section 6.2).

3. States (most notably governors) have to be willing not to block an agreement. An acid test is likely to come during a gubernatorial election when the entering governor repudiates agreements reached by the outgoing governor (see Section 4.3 and Section 6.2).

4. Powerful government and private forces within the host state have to cooperate. (see Section 1 and Section 6.1, Section 6.2 and Section 6.3).

5. DOE will be negotiating with multiple parties in each state and across states through which the SNF must pass, each with their own agendas. Will DOE be able to balance compensation packages and implement agreements among the parties that must consent? Will its objective of opening an interim site be trusted? Or will residents worry that interim means indefinite, or even forever? (see Section 1 and Section 6.1, Section 6.2 and Section 6.3).

Any of these conditions could be an obstacle for a federal agency to overcome, especially the fifth point. Section 3 labeled consent-based siting a revolutionary, out-of-box strategy in the U.S. context; addressing these five conditions in the case of a facility type that is considered enduringly objectionable is a severe test of consent-based siting as a viable innovation. Does the U.S. have the patience to pursue a consent-based program for multiple decades? Falk et al. [137] surveyed public patience in about 100 countries, which was defined as “the willingness to give up something that is useful for you today in order to benefit more in the future”. The U.S. ranked 3rd, behind only Sweden and the Netherlands. These data points are at least cause for some optimism; however, that patience will certainly be tested by pursuing a collaborative consent-based siting process.

Will the highly polarized U.S. political process be able to withstand the challenges of finding some places that will engage in a process that will take a decade or more to finalize? The failure of the Yucca site to open after the expenditure of over USD 10 billion testifies to intense opposition to a site that the state and local governments argue was thrust upon them by the U.S. government without due consideration for their concerns and values. Yet, the long-standing effort to win state and local support for the WIPP site in New Mexico testifies to the reality that collaboration may slowly build trust and that monitored trust in New Mexico has been successful at keeping the site open despite widely publicized engineering failures at the facility. With noted concerns expressed above, we believe a collaborative process to find an interim site can work in the United States because it may be the only feasible alternative to continued storage near 70 nuclear power plants in 30 states for the foreseeable future.