America’s Nuclear Gamble and the Waste Crisis Nobody Is Solving

By: Jackson Girard

Illinois is at another crossroads where the motives of profit and climate promises may yet again overtake the safety of our environment.[1] The protective responsibility is likely to fall on the decisions of the Illinois Emergency Management Agency (“IEMA”) because of current challenges to federal authority.[2]

Small Modular Reactors Are Coming to Illinois, Thanks to House Bill 2473

Illinois Governor J.B. Pritzker signed Illinois House Bill (“HB”) 2473 into law on December 8, 2023.[3] HB 2473 lays the legal foundations to bring Small Modular Reactors (“SMRs”) to the state as part of a larger effort to make the state carbon-neutral by 2050.[4] [5] True to their name, Small Modular Reactors are: a fraction of the size of traditional reactors; designed to be assembled at a factory and shipped to its site; and can be cooled using non-light water coolants such as a gas, liquid metal, or molten salt. [6] [7]

The bill’s sponsor, State Sen. Sue Rezin, R-Morris, said “If we want to take advantage of the amazing advancements in new nuclear technology that have occurred over the past couple of decades and not fall behind the rest of the states, we need to act now,” as reported by the Associated Press.[8] Modernizing nuclear power is a noble goal, but the history of small reactors is fraught. In the United States, more than thirteen small civilian reactors opened in the 1950s and 1960s and none of them are surviving up to now.[9] One month before HB 2473’s signing, NuScale Power canceled the “Carbon Free Power Project” with their only federally approved SMR design that was expected to be used in Illinois.[10]

SMRs Create More Waste, and We Don’t Have Anywhere Else to Put It

Small remains part of the name of Small Modular Reactors, but their impact thus far is the opposite. The Department of Energy highlights how “SMRs… could be more effective at dispositioning plutonium while minimizing the wastes requiring disposal.”[11] However, a Stanford-led research study examined three reactor designs in 2022 and found that SMRs “increase the volume of nuclear waste in need of management and disposal, by factors of 2 to 30 for the reactors in [the] case study.”[12] Moreover, the kinds of waste will have substantially different storage needs given that some of the radioactive waste materials react explosively with air or water, meaning additional conditioning processes.[13]

HB 2473 overturns the previous moratorium on construction of nuclear reactors in Illinois.[14] This marks a stark reversal of Illinois’ historical stance on nuclear waste.[15] At the Federal level, the 1982 Nuclear Waste Policy Act assigned the Department of Energy the responsibility of building a repository to store all nuclear waste through 2020.[16] The planned site never materialized, and not a single pound of nuclear fuel has been transported to it.[17] As a result, 91,000 metric tons of nuclear waste is stored privately in the United States.[18] In response to the lack of a dump site, Illinois passed the Low-Level Radioactive Waste Management Act (1987) which put the moratorium in place originally.[19]

Any SMRs constructed in Illinois must comply with regulations from the Nuclear Regulatory Commission (“NRC”), a federal agency, and The Illinois Emergency Management Agency, a state agency.[20] The NRC has released its final rule on the matter, while the IEMA has not yet published its regulations but is legally required to by January 2026.[21] [22]

The Flexibility of SMR Waste Disposal Under the Nuclear Regulatory Commission

The Final Rule from the NRC makes a significant change to how SMRs are licensed, namely, a shift from emergency plans and procedures to a “performance-based regimen.”[23] A performance-based regiment allows licensees to tailor their environmental protection plans to site-specific hazards by demonstrating effective responses in drills and emergency exercises under accident conditions.[24] The change to performance-based regulation avoids environmental protection requirement exemptions.[25] Exemptions are requested regularly because SMRs have multiple nuclear waste products and design-specific hazards that the statute cannot keep up with.[26]

Notably, the NRC Final Rule also admits that the nuclear waste will likely be stored in non-NRC approved sites near the reactors because Nevada’s Yucca Mountain site was not built.[27] Nine years earlier, the NRC lifted its storage duration requirements, admitting that a national waste disposal site may never be built.[28] Summarily, the following is legal: SMR nuclear waste can be stored in nearby warehouses forever, and the exact safety standard for those warehouses can be different for every reactor.[29] [30] Illinois is the current first and last stop for nuclear waste created by its generators.[31] 

How the Supreme Court Weighs In

Given the lack of currently licensed models, potential constructors of SMRs must pay attention to the Supreme Court’s actions.[32] The Supreme Court received NRC v. Texas (2025) challenging the authority of the Atomic Energy Act to regulate off-site nuclear fuel storage entirely.[33] The core of the argument is: Congress only appointed for storage within Yucca Mountain, and the NRC licensing other storage sites in Texas is unlawful.[34] If the Supreme Court sides against the NRC, the result could be a regulatory gap where nuclear waste storage enters limbo, waiting for action from Congress.[35] If the Supreme Court sides with the NRC, states would be unable to veto nuclear waste facilities being established in their borders.[36] The Supreme Court is expected to rule on the case in June 2025.[37]

Illinois Should Set the Example

A reasonable person may find that stripping regulations to force nuclear power forward into the future is a risky gamble, and the people of the United States could be the ones forced to pay with their health. However, SMR technology is here to stay, even with all its faults and features.[38] HB 2473 is law.[39]

Recently, Hyundai announced its intent for mass deployment of SMRs in the U.S., though their reactors are not yet licensed by the NRC.[40] The company also plans to co-locate its first reactor in Michigan’s Palisades reactor program, Illinois’ next-door neighbor.[41]

Illinois can set the example for its neighbors given Illinois’ unique history with nuclear infrastructure and storage facilities.[42] Illinois already maintains dry cask nuclear waste storage facilities. Policy incentives, like zero emission credits, already support Illinois’ fleet of nuclear reactors.[43] The eleven traditional nuclear reactors have already powered the state for more than thirty years.[44]

This is precisely why the Illinois Emergency Management Agency faces such a steep task in regulating how SMRs come to Illinois.[45] The IEMA must walk a balancing act between evolving technology and protecting human life when addressing SMRs. Strong incentives for nuclear power must be matched by strong protections for citizens. State leaders taking a strong stance on nuclear waste storage protects state citizens and opens the door to future energy developments, including natural gas-fired electrical generating units.[46]

The Illinois Emergency Management Agency Sets the Stage

Before the end of the year, the IEMA will release their draft for public comment and anyone is allowed to comment on it.[47] [48] If the contents of this article worry you, please make a public comment with the IEMA and tell them about your priorities in nuclear waste disposal.

 

____________________________________________

 

[1] Small Modular Reactor Development Act, Ill. Gen. Assemb., 103rd Leg., Reg. Sess. (2023) (enacted as Pub. Act 103-0569), https://ilga.gov/legislation/fulltext.asp?DocName=10300HB2473sam003&GA=103&SessionId=112&DocTypeId=HB&LegID=147557&DocNum=2473&GAID=17&SpecSess=&Session= (last visited Mar. 14, 2025) [hereinafter Small Modular Reactor Development Act].

[2] Nuclear Reg. Comm’n v. Texas, No. 23-1300 (U.S. June 12, 2024) (petition for certiorari), https://www.supremecourt.gov/DocketPDF/23/23-1300/314852/20240612144746118_NRC_Pet_f.pdf.

[3] H.B. 2473, 2023 Ill. Gen. Assemb. (2023), https://legiscan.com/IL/bill/HB2473/2023 (last visited Mar. 14, 2025).

[4] Id.

[5] Press Release, Off. of the Gov., State of Ill., Governor Pritzker Signs Transformative Legislation Establishing Illinois as a National Leader on Climate Action, https://www.illinois.gov/news/press-release.23893.html (last visited Mar. 14, 2025).

[6] Joanne Liou, What Are Small Modular Reactors (SMRs)?, Int’l Atomic Energy Agency, https://www.iaea.org/newscenter/news/what-are-small-modular-reactors-smrs

[7] Advanced Small Modular Reactors (SMRs), U.S. Dep’t of Energy, Off. of Nuclear Energy (last visited Mar. 23, 2025), https://www.energy.gov/ne/advanced-small-modular-reactors-smrs.

[8] John O’Connor, Illinois Ends 36-Year-Old Moratorium on Nuclear Power Plants with Governor’s Signature, Assoc. Press (Sept. 13, 2023), https://apnews.com/article/illinois-nuclear-small-modular-reactors-moratorium-a56a90a09185e864cdd7f5d6d24b9d48.

[9] Power Reactor Information System (PRIS) Country Statistics: United States, Int’l Atomic Energy Agency (last visited Mar. 23, 2025), https://pris.iaea.org/PRIS/CountryStatistics/CountryDetails.aspx?current=US.

[10] Andrew Adams, Illinois Lawmakers Approve Plan to Allow Small-Scale Nuclear Development, Capitol News Ill. (Nov. 9, 2023), https://capitolnewsillinois.com/news/illinois-lawmakers-approve-plan-to-allow-small-scale-nuclear-development/.

[11] Benefits of Small Modular Reactors (SMRs), U.S. Dep’t of Energy, Off. of Nuclear Energy (last visited Mar. 23, 2025), https://www.energy.gov/ne/benefits-small-modular-reactors-smrs.

[12] Lindsay M. Krall, Allison M. Macfarlane, & Rodney C. Ewing, Small Modular Reactors (SMRs) Will Exacerbate the Challenges of Nuclear Waste Management and Disposal, 119 Proc. Nat’l Acad. Sci. U.S.A. e2111833119 (2022), https://doi.org/10.1073/pnas.2111833119.

[13] Id.

[14] Illinois Low-Level Radioactive Waste Management Act, 420 ILCS 20/1 et seq., https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1617&ChapterID=37 (last visited Mar. 14, 2025). [hereinafter Low-Level Waste Management Act].

[15] Id.

[16] Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425, 96 Stat. 2201 (Jan. 7, 1983) (codified as amended at 42 U.S.C. §§ 10101-10270), https://www.energy.gov/articles/nuclear-waste-policy-act (last visited Mar. 14, 2025).

[17] How Illinois Can Use Subcritical Nuclear Technology to Deal with Nuclear Spent Fuel, 170 Cong. Rec. E28 (daily ed. Jan. 11, 2024) (statement of Rep. Bill Foster), https://www.govinfo.gov/content/pkg/CREC-2024-01-11/html/CREC-2024-01-11-pt1-PgE28-3.htm.

[18] Lance N. Larson & Mark Holt, Considerations for Reprocessing of Spent Nuclear Fuel, R48364 (Cong. Res. Serv., Jan. 23, 2025), https://www.congress.gov/crs-product/R48364.

[19] 420 Ill. Comp. Stat. 20/2 et seq. (2025), https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1617&ChapterID=37 (last visited Mar. 14, 2025).

[20] Id.

[21] U.S. Nuclear Reg. Comm’n, Emergency Preparedness for Small Modular Reactors and Other New Technologies, 88 Fed. Reg. 80050 (Nov. 16, 2023) (codified at 10 C.F.R. pt. 50), https://www.federalregister.gov/documents/2023/11/16/2023-25163/emergency-preparedness-for-small-modular-reactors-and-other-new-technologies [hereinafter Emergency Preparedness].

[22] Low Level Waste Management Act, supra note 14.

[23] Id.

[24] Emergency Preparedness, 88 Fed. Reg. at 80094.

[25] Id.

[26] Id.

[27] Id.

[28] Final Rule: Continued Storage of Spent Nuclear Fuel, U.S. Nuclear Reg. Comm’n, ADAMS Accession No. ML14177A474 (July 21, 2014), https://www.nrc.gov/docs/ML1417/ML14177A474.pdf [hereinafter Storage of Spent Nuclear Fuel].

[29] Id.

[30] Low Level Waste Management Act, supra note 14.

[31] Storage of Spent Nuclear Fuel, supra note 28.

[32] Andrew Adams, supra note 10.

[33] Nuclear Reg. Comm’n v. Texas, supra note 2.

[34] Id.

[35] Id.

[36] Id.

[37] Dylan Baddour, U.S. Supreme Court Takes Up Texas Nuclear Waste Disposal Case, The Tex. Trib. (Mar. 5, 2025), https://www.texastribune.org/2025/03/05/west-texas-nuclear-waste-supreme-court-hearing/

 

[38] Press Release, Holtec Launches “Mission 2030” to Deploy America’s First SMR, Holtec Int’l (Feb. 25, 2025), https://holtecinternational.com/2025/02/25/hh-40-05/.

[39] H.B. 2473 § 4.5 (2023), supra note 3.

[40] Id.

[41] Id.

[42] Divita Bhandari, Max Chang, Philip Eash-Gates, et al., Exelon Illinois Nuclear Fleet Audit, Synapse Energy Econ., Inc., Rep. No. REDACTED_21-002 (Apr. 14, 2021), https://www.synapse-energy.com/sites/default/files/Exelon_Illinois_Nuclear_Fleet_Audit_Report_REDACTED_21-002.pdf

[43] Patrick Zemanek, Exelon Illinois Plants Get New Nuclear Incentives, Argus Media (Dec. 3, 2021), https://www.argusmedia.com/en/news-and-insights/latest-market-news/2280138-exelon-illinois-plants-get-new-nuclear-incentives.

[44] Owen E. MacBride, Illinois Hopes New Law Will Fuel Next Generation of Nuclear Power Development, AFS (Jan. 5, 2024), https://www.afslaw.com/perspectives/energy-cleantech-counsel/illinois-hopes-new-law-will-fuel-next-generation-nuclear

[45] Small Modular Reactor Development Act, supra note 1.

[46] OECD Nuclear Energy Agency, Small Modular Reactors: Nuclear Energy Market Potential for Near-term Deployment, NEA No. 7213 (2016) (last visited Mar. 14, 2025), https://www.oecd-nea.org/upload/docs/application/pdf/2019-12/7213-smrs.pdf

[47] H.B. 2473 § 4.5 (2023), supra note 3.

[48] How Rules Are Made In Illinois, Joint Comm. on Admin. Rules, Ill. Gen. Assemb. (2023) (last visited Mar. 14, 2025), https://www.ilga.gov/commission/jcar/ILRulemakingProcess.pdf