Nuclear Regulatory Commission Board Rejects Administration’s Attempt to Stop Yucca Mountain Construction Authorization Review

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On June 29 three administrative judges of the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission denied a motion by the Department of Energy to withdraw its construction authorization application for a high-level nuclear waste repository at Yucca Mountain, Nevada.  While this denial does not clear the way for the repository to built, a Board decision to grant this DOE motion would have effectively terminated the repository for all time.

In their 47-page Memorandum and Order  the judges denied a March 3, 2010 DOE Motion to Withdraw .  The DOE motion was “to withdraw its pending license application for a permanent geologic repository at Yucca Mountain, Nevada.  DOE asks the Board to dismiss its application with prejudice and to impose no additional terms of withdrawal.”A key phrase in this motion is “with prejudice.”If granted, such a ruling would have terminated the repository.  As stated in the March 3 DOE Motion:

“In this instance, the Board should prescribe only one term of withdrawal – that the pending application for a permanent geologic repository at the Yucca Mountain site shall be dismissed with prejudice.

“That action will provide finality in ending the Yucca Mountain project for a permanent geologic repository and will enable the Blue Ribbon Commission, as established by the Department and funded by Congress, to focus on alternative methods of meeting the federal government’s obligation to take high-level waste and spent nuclear fuel.”

A foot note for the above first sentence states:

“DOE seeks this form of dismissal because it does not intend ever to refile an application to construct a permanent geologic repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.”

The Department of Energy submitted an 8,600 page construction authorization application to the Nuclear Regulatory Commission in June 2008.   At that time, Energy Secretary Samuel Bodman said:

"I’m pleased to announce that this morning the Department of Energy submitted a license application to the U.S. Nuclear Regulatory Commission seeking authorization to build America’s first national repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain, Nevada. We are confident that the NRC’s rigorous review process will validate that the Yucca Mountain repository will provide for the safe disposal of spent nuclear fuel and high-level radioactive waste in a way that protects human health and our environment."

It was estimated that the department had spent 20 years and $10 billion in steps leading up to the filing.  In September 2008, the NRC ruled that the June application was “sufficiently complete” to allow the commission to initiate its review.

In the early months of the Obama Administration it became increasingly apparent that it was turning away from a repository at Yucca Mountain.  The FY 2010 DOE budget request stated “All funding for development of the Yucca Mountain facility has been eliminated, such as further land acquisition, transportation access, and additional engineering.” When appearing before House appropriators a year ago, Energy Secretary Steven Chu testified “I think Yucca Mountain as a long-term repository is definitely off the table,” characterizing it as “dead.”     The final FY 2010 Energy and Water Development Appropriations bill enacted last October did not change the amount requested by the Administration for Nuclear Waste Disposal.

On March 3, 2010, DOE filed a 15-page motion “to withdraw its pending license application for a permanent geologic repository at Yucca Mountain, Nevada.”In explaining its reason for the motion, DOE states:

“While DOE reaffirms its obligation to take possession and dispose of the nation’s spent nuclear fuel and high-level nuclear waste, the Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for a long-term disposition of these materials.  Additionally, at the direction of the President, the Secretary has established the Blue Ribbon Commission on America’s Nuclear Future, which will conduct a comprehensive review and consider alternative for such disposition.  And Congress has already appropriated $5 million for the Blue Ribbon Commission to evaluate and recommend such ‘alternatives.’ . . . In accord with those decision, and to avoid further expenditure of funds on a licensing proceeding for a project that is being terminated, DOE has decided to discontinue the pending application in this docket, and hereby moves to withdraw that application with prejudice.”

Regarding DOE’s motion for a dismissal with prejudice, the motion later states:

“It is the Secretary of Energy’s judgement that scientific and engineering knowledge on issues relevant to disposition of high-level waste and spend nuclear fuel has advanced dramatically over the twenty years since the Yucca Mountain project was initiated.”

The Atomic Safety and Licensing Board did not agree with the motion to withdraw.  Selections from the Introduction of the Board’s June 29, 2010 Memorandum and Order follow:

“Conceding that the Application is not flawed nor the site unsafe, the Secretary of Energy seeks to withdraw the Application with prejudice as a ‘matter of policy’ because the Nevada site ‘is not a workable option.’”

“. . . we deny DOE’s motion to withdraw the Application.  We do so because the Nuclear Waste Policy Act of 1982, as amended (NWPA), does not permit the Secretary to withdraw the Application that the NWPA mandates the Secretary file.  Specifically, the NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit.”

Explaining further, the Board writes:

“. . . we conclude that Congress [in the law] directed both that DOE file the Application (as DOE concedes) and that the NRC consider the application and issue a final, merits-based decision approving or disapproving the construction authorization application.  Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decision-making process by withdrawing the Application.  DOE’s motion must therefore be denied.”

DOE responded to the Board’s decision as follows:

“As the Obama Administration takes action to restart the nuclear industry and create new clean energy jobs, we remain committed to ensuring that the federal government fulfills its long-term disposal obligations for nuclear waste, and look forward to the recommendations of the Blue Ribbon Commission. The Department remains confident that we have the legal authority to withdraw the application for the Yucca Mountain repository.  We believe the administrative board’s decision is wrong and anticipate that the Nuclear Regulatory Commission will reverse that decision.”

There was also reaction from Capitol Hill.  Senate Majority Leader Harry Reid (D-NV), a strong opponent of the repository, issued the following statement:

“While I am disappointed in the board's decision, the full commission will likely take another look at the motion to withdraw the license application and make the final decision on behalf of the NRC in the coming months.  Nevadans can rest assured that as the majority leader of the Senate, I will continue working with President Obama and Secretary Chu to ensure Nevada never becomes the nation's nuclear dumping ground.  It makes no sense to ship 77,000 tons of the most toxic substance known to man across the country to bury it 90 miles away from the world's premier tourist destination.  Our country has some of the best scientific minds in the world and I am confident they can come up with a safer solution to deal with the nation's nuclear waste.  I will continue to ensure that this dangerous project never comes back to life.  The safety and security of Nevadans is my top priority.”

Another response was a July 6 letter to Energy Secretary Chu signed by 91 senators and representatives, fourteen of whom were Democrats.  The letter, initiated by Rep. Doc Hastings (R-WA) and Senator Patty Murray (D-WA) follows.  A list of the signatories can be viewed here

“Dear Secretary Chu:

“We write today to request that the Department of Energy immediately halt all actions to dismantle operations at Yucca Mountain at least until legal action regarding the withdrawal of the application is resolved by the DC Circuit Court and the Nuclear Regulatory Commission.

“The DC Circuit Court has taken the important step of approving the motion to expedite legal actions and has combined the cases involving the State of Washington, State of South Carolina, Aiken County, and Tri-Cities, Washington community leaders. This is a clear demonstration by the Court that the merits of the case must be heard and ruled upon prior to further action by the Department of Energy to shut down Yucca Mountain.

“On June 29, 2010, the Nuclear Regulatory Commission's Atomic Safety and Licensing Board denied the Department's motion to withdraw its license application for Yucca Mountain, a clear statement that the Department does not have the authority under the Nuclear Waste Policy Act to unilaterally terminate Yucca Mountain.

“In light of the recent legal and regulatory actions, we are deeply troubled that the Department continues to move forward with terminating the project regardless of this decision. We are also concerned that the Department is using its budget proposal in an attempt to justify the termination of Yucca Mountain.

“As you know, the Nuclear Waste Policy Act designated Yucca Mountain as the only candidate site for the national repository. Congressional intent is clear - Congress has voted several times to retain Yucca Mountain as the national repository. We are deeply disappointed that DOE has overstepped its bounds and has ignored congressional intent without peer review or proper scientific documentation in its actions regarding Yucca Mountain.

“We ask that you recognize the letter and spirit of the law, honor the timeline set by the court, and halt all efforts to reprogram funds or terminate contracts related to Yucca Mountain.

“Thank you for your consideration and we look forward to your timely response.”

In September 2008, when the NRC determined that the application was “sufficiently complete” to allow its review, it was estimated that the commission’s review could take up to four years to complete.  If the full Commission does not reverse the Board’s decision, the review will continue.  The Board’s memorandum notes the following:

“If Congress does not wish to see the Yucca Mountain project go forward, it can of course change the law or decide not to fund the proposed repository.”

Indications of future congressional intent will come later this week.  The House Energy and Water Development Appropriations Subcommittee just announced that it will take up its FY 2011 funding bill on July 15, postponed from an earlier date because of disagreements regarding nuclear power plant loan guarantees.

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