Contentious House Hearing on Yucca Mountain

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Publication date: 
23 October 2013


“It’s a tough issue, there’s emotions ramping [up] on both sides, we do appreciate you putting up with us, but you will see us again” said House Subcommittee on Environment and the Economy Chairman John Shimkus (R-IL) at the conclusion of hearing last month on the proposed Yucca Mountain nuclear waste repository.  Shimkus addressed his comments to the hearing’s two witnesses, Nuclear Regulatory Commission Chairman Allison Macfarlane and DOE Assistant Secretary for Nuclear Energy Peter Lyons.

The hearing followed a mid-August U.S. Court of Appeals decision regarding a series of NRC actions in 2010 resulting in the suspension of its review of a DOE license application for the construction of a nuclear waste repository at Yucca Mountain, Nevada.  The court ordered that “the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process for the proposed repository.”   This finding is reiterated numerous times in the 29-page decision, the court stating “As things stand, therefore, the Commission is simply flouting the law.” Later the decision notes “But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.”   Reiterating this point, the court stated: “At this point, the Commission is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis.”

Subcommittee members were unsuccessful in their attempts to get either witness to define the path going forward.  Macfarlane assured the representatives that the NRC would follow the law, but resisted providing any details on how or when the commission would resume it work.  She would not offer a schedule for the completion and release the rest of the multi-volume Safety Evaluation Report on the repository.  The full report, of which the first of five volumes has been issued, will “represent the staff’s technical determination as to whether the proposed repository meets NRC’s safety and security regulations and whether construction should be authorized with appropriate license conditions,” Macfarlane said.   More information on the schedule for this report and other activities, including evidentiary hearings, will be forthcoming after the commission has an opportunity to review comments from staff and interested parties due at the end of September, she told the subcommittee.

“The focus of the NRC’s review is on whether the DOE has demonstrated that it can construct and operate a repository safely and in compliance with NRC regulations,” Macfarlane stated in her written testimony. In answer to a question about the merits of the repository Macfarlane said “I have an open mind.” Completion of the entire licensing process will require additional money.  NRC has between $11.1 and $13.6 million available in prior year funding; no money was appropriated in FY 2012 or FY 2013.  The FY 2014 appropriation is unsettled.  One representative estimated that the Administration spent approximately $150 million in shutting down the review and the Yucca Mountain project. 

In his testimony, Lyons told the subcommittee that DOE “will comply with NRC or judicial orders that are directed to DOE, subject, of course, to the availability of appropriated funds.”  He stressed the consent-based strategy of the Administration, saying “any workable solution for the final disposition of used fuel and nuclear waste must be based not only on sound science but also on achieving public acceptance at the local, state, and tribal levels.”  The State of Nevada and its congressional delegation have voiced strong opposition to the proposed repository. 

The subcommittee intends to hold more hearings on Yucca Mountain.  How and when this long-running dispute will be resolved remains very unclear.  Rep. John Dingell (D-MI) commented during the hearing “we have a fine mess on our hands . .  . a magnificent mess.”