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The Legal Feasability of Nuclear Waste Disposal in Outer Space William & Mary Environmental Law and Policy Review Volume 22 (1997-1998) Issue 1 Article 6 October 1997 Lost in Space?: The Legal Feasability of Nuclear Waste Disposal in Outer Space Robin Dusek Follow this and additional works at: https://scholarship.law.wm.edu/wmelpr Part of the Environmental Law Commons Repository Citation Robin Dusek, Lost in Space?: The Legal Feasability of Nuclear Waste Disposal in Outer Space, 22 Wm. & Mary Envtl. L. & Pol'y Rev. 181 (1997), https://scholarship.law.wm.edu/wmelpr/vol22/ iss1/6 Copyright c 1997 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmelpr LOST IN SPACE?: THE LEGAL FEASIBILITY OF NUCLEAR WASTE DISPOSAL IN OUTER SPACE ROBIN DUSEK* Nuclear waste was originally billed as a form of energy that would be "too cheap to meter."' Now we know that the real cost of nuclear energy is in its disposal, which has seemed impossible to accomplish effectively. The deadline of 1998 set by the Nuclear Waste Policy Act of 1982 ("NWPA") to begin accepting wastes for permanent disposal2 now appears to be premature by more than ten years. Permanent geologic disposal does not seem any closer to realization than it did when NWPA became law in 1983, 3 thus making other disposal options more attractive. Waste disposal in outer space has been suggested as an alternative to disposal on earth.4 Space disposal appears to provide an easy way of permanently ridding ourselves of the waste without the accompanying fear that the waste will pollute the earth, and leave us with contaminated land. However, any plan for disposal in space will need to overcome more than the technical problems associated with "burial" in space. International law will affect our ability to dispose of waste in outer space and the circumstances surrounding this type of disposal must guarantee, for all practical purposes, a successful "burial." Part I of this note discusses nuclear waste disposal in the United States, the current state of which forces us to evaluate disposal in space. Part II discusses treaties, international . Ms. Dusek received her B.A. in Government from the University of Notre Dame in 1995, and expects to receive her J.D. from the College of William and Mary School of Law in May of 1998. In 1954, Lewis Strauss, then chairman of the U.S. Atomic Energy Commission, predicted, "Our children will enjoy in their homes electrical energy too cheap to meter." Dawn Stover, 50 Years After the Bomb: The Nuclear Legacy, POPULAR SCI., Aug. 1, 1995, at 52, 54. 2 See Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425, § 302(a)(5)(B), 96 Stat. 2201, 2258 (1983) (codified at 42 U.S.C. § 10222(a)(5)(B)(1994)). 3 See id. See Energy Industry, Russia Express Briefing, Sept. 30, 1996, available in 1996 WL 8618977 [hereinafter Russia Express Briefing]. WM. & MARY ENVTL. L. & POL'Y REV. [Vol. 22:181 agreements, and other sources of international law that would limit our ability to dispose in space to instances where our scientific knowledge adequately supports the risk to life and the potentially enormous environmental cleanup cost of a disposal accident. Because our scientific knowledge is not yet adequate to address these risks, it is unlikely that we ever will ship our waste into space. PART I. The world entered the nuclear era in December of 1942, when a team led by Enrico Fermi produced the world's first nuclear chain reaction.5 The experimental reaction soon turned into a deadly force as the world's first atomic bomb exploded in New Mexico on July 16, 1945 and the first nuclear warhead was dropped on Hiroshima on August 6, 1945.6 War had provided the rationale for developing nuclear power, but the "Atoms for Peace" program provided a non-war rationale for continuing to develop nuclear fission technology.7 The Atomic Energy Act of 19548 ushered in the commercial phase of nuclear energy when the first commercial atomic plant in the United States opened in 1957 in Shippingport, PA.9 Although nuclear waste was advertised ' See K.S. SHRADER-FRECHETTE, NUCLEAR POWER AND PUBLIC POLICY: THE SOCIAL AND ETHICAL PROBLEMS OF FISSION TECHNOLOGY 7 (1980) [hereinafter SHRADER-FRECHETE, NUCLEAR POWER]. 6 See id. at 8 See id.; Seth Grae, The Nuclear Non-Proliferation Treaty's Obligation to Transfer Peaceful Nuclear Energy Technology: One Proposal of a Technology, 19 FORDHAM INT'L L.J. 1985, 1989 (1996). President Eisenhower initiated the "Atoms for Peace" program during a 1953 address to the United Nations General Assembly, in which he advocated peaceful uses of nuclear energy as a nuclear weapons anti-proliferation strategy. See id. ' Pub. L. No. 69-703, 68 Stat. 919 (1954) (codified as amended in scattered sections of 42 U.S.C.). 9 See K.S. SHRADER-FRECHETTE, BURYING UNCERTAINTY: RISK AND THE CASE AGAINST GEOLOGICAL DISPOSAL OF NUCLEAR WASTE 19 (1993) [hereinafter SHRADER-FRECHETTE, BURYING UNCERTAINTY]. 1997] LOST IN SPACE as the fuel of the future,' ° it has not lived up to these expectations due to the danger of its by-products. 1 The nuclear fission process begins when uranium-235 ("U-235") is bombarded with neutrons.12 During this bombardment, some of the uranium splits (or fissions), releasing energy, along with dangerous radioisotopes such as iodine, strontium, technetium, and cesium.'3 Additional unstable elements are produced at the same time 4 and bombard the remaining U-235 nuclei, creating a chain reaction.'5 Eventually, the reaction reaches the stage where more neutrons are produced than consumed.' 6 At this point, the reaction is self-sustaining and has "gone critical."' 7 The heat generated creates steam, which drives electric turbines.'8 A typical commercial nuclear reactor produces thirty metric tons of irradiated fuel annually.' 9 Each ton contains elements with extremely long half-lives and produces close to 180 million curies of radioactivity. 2 For example, the radioisotope plutonium-239, a major constituent of irradiated fuel, has a half-life of 24,400 years, but is dangerous for a quarter of a million years. 21 As it decays, it becomes U-235 with a half-life of 710,000 years. 22 The danger posed by this radiation is in its effect on living cells. Radiation ho See supra note 1. See infra notes 20-24 and accompanying text. 12 See SHRADER-FRECHETTE, NUCLEAR POWER, supra note 5, at 12-13. " See NICHOLAS LENSSEN, NUCLEAR WASTE: THE PROBLEM THAT WON'T Go AWAY 11 (1991). '" See SHRADER-FRECHETTE, NUCLEAR POWER, supra note 5, at 13. 's See id. 6 See IARviN RESNIKOFF, THE NExT NUCLEAR GAMBLE: TRANSPORTATION AND STORAGE OF NUCLEAR WASTE 38 (1983). '7 See id. 18 See id. '9 See LENSSEN, supra note 13, at 9. Approximately one-third of a reactor's fuel is disposed of every twelve to eighteen months. See RESNIKOFF, supra note 16, at 38. 20 The half-life of an element is the time it takes for 50 percent of its radioactivity to decay. See LENSSEN, supra note 13, at 9. 21 See id, 22 See id. WM. & MARY ENvTL. L. & POL'Y REV. [Vol. 22:181 can damage individual cells and cause cancer, degenerative diseases, mental retardation, chromosome aberrations, and genetic disorders.23 The damage inflicted on an individual depends upon the dose received and the age and strength of the individual.24 Because of the damage nuclear waste can inflict, waste must be isolated until it is no longer a threat, which is at least a quarter of a million years. 25 EPA has adopted public protection standards of only 10,000 years, with allowable emissions no greater than those of unmined uranium in the soil. 26 The containers that the Department of Energy ("DOE") has designed to hold waste in deep geologic burial have been planned to isolate the waste for 300 to 1000 years.27 After that period, it is hoped that environmental factors will keep the waste isolated. 28 An environment has yet to be found that scientists can say, with certainty, has the geologic stability needed to 29 contain nuclear waste. 23 The "bundle" of energy emitted from an atom of radioactive material rips through the matter it encounters. This disrupts the electrical balance of atoms along the way and causes the disorganization of cells and tissues. Incomplete atoms, called ions, are formed as electrons are knocked out of their shells. New ions form by attracting particles from other atoms, increasing the disorganized state. See RESNIKOFF, supra note 16, at 50-51. 24 Even a relatively small amount of radiation can inflict severe damage. An amount of plutonium the size of a beach ball, if distributed appropriately, can give every person on the earth lung cancer. See R. Routley & V. Routley, Nuclear Energy and Obligations to the Future, 21 INQUIRY 133, 136 (1978). 25 See supra notes 20-24 and accompanying text. 26 See Nuclear News Briefs, NUCLEAR NEWS, Sept. 1985, available in LEXIS, News Library, Nunews File. A typical American is exposed to 100 millirems of radiation per year from natural sources. See RESNIKOFF, supra note 16, at 47. A millirem is "a unit measuring the biological effects of radiation." Id. Although the requirements set by the EPA seem to impose no greater risk on the environment than if the material had never been mined, generation of waste actually creates more of the dangerous substance than would otherwise exist in an unmined state. See SHRADER-FRECHETTE, BURYING UNCERTAINTY, supra note 9, at 194. Even when radioactive waste decays to the level of naturally occurring uranium, a greater volume of dangerous material is imposed on future generations.
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