Explaining Idaho's Unique Settlement Agreement

Idaho was once the disposal site for nuclear weapons production activities outside of Idaho, but thanks to a landmark agreement known as the 1995 Idaho Settlement Agreement (ISA), today Idaho continues to get the waste out of the state.

Darrel Early, deputy attorney general for the Idaho Attorney General, presented some of the “rest of the story” of the historic settlement agreement during April's virtual CAB meeting.

He said, “The 1995 Settlement Agreement is an historic and unique agreement in the Department of Energy complex. It represents a compromise by both the State and the DOE of complex litigation in which each side agreed to accept obligations and risks in exchange for benefits.”

As part of the agreement, the state agreed to allow DOE and the Navy to bring limited quantities of spent nuclear fuel (SNF) into Idaho for the next 40 years. DOE agreed it would not ship certain types of SNF to Idaho and that it would expedite the treatment and permanent removal of waste and SNF from the state.

As part of the agreement, then-Governor Phil Batt had three guiding principles: Idaho must not become a default repository, DOE must address waste already in Idaho, and instead of a “clean up and close down” site, the Idaho National Laboratory (INL) must become a viable national laboratory.

The agreement was met with some backlash, including a petition to recall Governor Batt and an initiative to void the agreement. Idaho voters, however, upheld the agreement.
 
After the agreement was signed, a disagreement arose over whether the 65,000 cubic meters of TRU waste to be removed from Idaho by 2018 included the post-1970 retrievably stored waste and the pre-1970 buried waste, or just the former. A motion to re-open litigation for Declaratory Relief was filed on April, 18, 2002, claiming “all means all.” The case was argued in court and U.S. District Court Judge Edward Lodge ruled in May 2006 that the TRU waste definition does not include alpha low level waste. However, Judge Lodge ruled DOE must remove all TRU waste buried in the Subsurface Disposal Area.

Since the original settlement agreement, five other agreements have been reached. These agreements include:

1) Agreement to Implement | 2008

• Retrieval of five waste types most likely to contain transuranics + uranium waste form
• Retrieval of at least 5.7 acres and up to 7.4 acres likely to contain most transuranics, hazardous solvents & uranium
• Shipment of at least 7,485 cubic meters of Targeted Waste out of Idaho
• Coordinates w/ Superfund cleanup to ensure protection of Aquifer where contamination is left in place
• Establishes checks & balances to review assumptions and ensure performance
• Requires review of assumptions & revisiting them if they do not prove out
• Allows vigorous oversight by State & U.S. Environmental Protection Agency 

2) Navy Addendum | 2004
Navy officials approached the State of Idaho with uncertainty regarding the future of the Naval Reactor Facility beyond 2035. The 2023 deadline for wet/dry storage, which was inconsistent with the need for cooling of Navy SNF, meant possibly closing active receipt at the NRF even earlier. The Navy wanted to invest in new infrastructure but was uncertain if continued work was welcome in Idaho. The Navy also wanted to resolve uncertainty by agreeing to terms concerning future receipt and management of Navy SNF at the INL. The agreement with the Navy:

• Allows the Navy to continue operation of the NRF in Idaho, including keeping some SNF in Idaho after 2035
• Requires that all the Navy SNF arriving before 2026 leave Idaho by 2035; SNF arriving after 2026 can stay only for as long as “reasonably necessary.”
• Caps the amount of Navy SNF that can be in Idaho at any one time post 2035 at nine MTHM
• Caps the number of shipments allowed to the INL at 20 per year on a running average.
• Allows the Navy to cool SNF in water pools for six years
• Allows the Navy to store a small amount of SNF (750 kg.) for archival study
• Makes the remedies of the original 1995 ISA applicable to new provisions if the Navy does not meet the Navy Addendum

3) Commercial Fuel MOA | 2011
In 2004, DOE approached the State of Idaho to ask for a waiver to allow shipment of fuel from the North Anna Powerplant to INL for research. Idaho agreed with specific conditions: Limited quantity (four fuel rods & two control rods), counted against the annual shipment limit, material remaining counted against the total limit, and all materials except for destructive examination wastes would leave by the end of 2006.
 
In 2011  DOE/INL engaged Idaho and explained that lack of certainty concerning commercial SNF research was impairing the lab’s ability to compete for research. Idaho agreed to an MOA to allow “research quantities” of commercial SNF to INL with certain conditions. The terms include these stipulations: Is a “conditional waiver” not a contract amendment; terminable “at will” by Idaho; allows only “research quantities,” that is only what is necessary for the specific research project; not more that 400 kg. in any calendar year; shipments count against the annual cap of shipments – regardless of size; volume MTHM remaining onsite counts against the total cap; allows for a “library” of not more than 10 kg.; and notification/documentation and reports.
 
4) Supplemental Agreement | 2018
Starting in 2018 with new administration, DOE took a different approach to working out an agreement with Idaho. Resultingly, Idaho agreed to allow a one-time shipment of commercial fuel if DOE met the following commitments:

• Treat at least one cask of sodium-bearing HLW before any SNF can enter the state
• Ship 300 lbs of special nuclear material out of Idaho
• Treat sodium-bonded fuel
• Commit that Idaho will receive 55 percent of all shipments to WIPP; and any unused shipping capacity goes to Idaho 

5) ATR Agreement
The why of this agreement is that the 1995 ISA requires that all SNF be moved from wet storage into dry storage by 2023. The ISA also requires that all SNF be removed from Idaho by 2035.  The ATR has a safe useful life well beyond 2035 and an ongoing mission. DOE has an active fuel management canal at the ATR where it “stores” or “manages” spent nuclear fuel for up to six years before moving to dry storage. Both Idaho and DOE disagreed over applicability but both wanted certainty on the future of ATR. Both sides agreed that:

• DOE can keep using the canal to “store” or “manage” SNF after 2018, but can only keep fuel in water for 6 years
• DOE can keep SNF “stored” in the canal in Idaho after 2035
• After 2035, DOE must remove all SNF put into dry storage within 12 months
• Continuous technical assessments of ATR canal integrity

Early said it was important for the State to see the Settlement Agreement evolve and just as important that Idaho not become the defacto repository for waste.