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Yucca Mountain waste site: Court orders nuclear agency back to work (+video)

The Nuclear Regulatory Commission was ordered to comply with federal law and complete its review of a license application for the Yucca Mountain nuclear waste site, which Congress now refuses to fund.

By Staff writer / August 13, 2013

Senate Majority Leader Harry Reid (D) of Nevada responds to a question about the stalled Yucca Mountain nuclear waste storage facility during a news conference at the National Clean Energy Summit 6.0 in Las Vegas on Tuesday. Interior Secretary Sally Jewell listens at right.

Steve Marcus/Las Vegas Sun/AP


A federal appeals court has ordered the Nuclear Regulatory Commission to resume its review of a Department of Energy license application to operate the Yucca Mountain nuclear waste site in Nevada, designated by Congress as the repository for highly radioactive spent fuel.

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A three-judge panel of the US District Court of Appeals in Washington, ruling 2 to 1, criticized the NRC for halting work on the Energy Department's application, saying the agency "is simply defying a law enacted by Congress, and the Commission is doing so without any legal basis."

In its 29-page decision, the court said it wasn't interested in the nuclear-waste policy question, but saw the case as a revolving around the latitude the executive branch should have in "disregarding federal statues," an issue "with serious implications for our constitutional structure."

The ruling's impact on the future of Yucca Mountain is unclear.

“This case is not so much about Yucca Mountain as it is about due process," said Philip Jones, president of the National Association of State Utility Commissioners (NASUC), in a prepared statement.

"Existing law requires the NRC to determine whether the facility and location is safe for storing spent-nuclear fuel," he added. "Even if it does, the fate of Yucca Mountain remains uncertain."

The issue has a long, contentious history – from the early days of the site selection process through President George W. Bush's decision in 2002 to sign a joint resolution of Congress picking Yucca Mountain as the location for storing high-level radioactive waste.

The tide turned with President Obama's election.

After Mr. Obama took office in 2009, he slashed funds for the program and appointed a commission to revisit the issue of storing highly radioactive spent fuel. One of his key allies in Congress has been Senate Majority Leader Harry Reid (D) of Nevada, who has long opposed the project in his home state. Funding prospects for Yucca Mountain, especially in the Democrat-controlled Senate, continue to appear bleak, at best.

But the Energy Department filed its license application for Yucca Mountain in 2008. That started the play clock ticking on a 2011 deadline for completing the review process and giving the application a thumbs up or thumbs down. The three-year time frame was established by Congress under amendments to the Nuclear Waste Policy Act of 1982.

The act establishes the federal government's responsibility to site and build a nuclear waste repository. Nuclear utilities were responsible for paying disposal costs. The nuclear industry estimates that utilities, and ultimately rate-payers, have contributed $35 billion to the nuclear waste fund since then, with no return on the investment.

The NRC failed to meet the 2011 deadline and, in essence, shelved any additional work on the application, citing the powerful political opposition to the repository, as well as Congress's unwillingness to continue funding it. The NRC has about $11 million left in the pot of money Congress appropriated in fiscal 2011 to perform the review.

The NRC's five commissioners may have concluded that they were caught between a statutory rock and a political and fiscal hard place, but the inability to make a decision within the three-year period was self-imposed, according to Rob Thormeyer, spokesman for the NASUC.

Early in 2010, the Energy Department tried to withdraw its application, without providing any scientific or technical reasons for doing so, Mr. Thormeyer says. The request "was just a couple of pages saying it was no longer viable."

The NRC's staff denied the request, citing the DOE's lack of a technical rationale for pulling the application and the law's requirement that the NRC complete its review.


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