Yucca Mountain waste site: Court orders nuclear agency back to work

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.

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.

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.

But the five-member commission also had to sign off on the staff's decision to reject the request to withdraw the application. When the issue came up, one commission member bowed out of the decision, citing involvement in the issue prior to serving on the commission, Thormeyer recalls. That left a 2-2 deadlock, delaying additional work on the application.

Pushback from the industry and the looming deadline prompted the chairman to direct the staff to resume work on the application, Thormeyer continues. But that left the staff with one month to complete its work after more than a year of delay, guaranteeing the agency would blow its deadline. With little money and, in essence, no time left to complete the job, the staff opted to suspend consideration of the application – and started to pack up documents, ship them off to storage sites, dismantle the computer network set up to do the work, and transfer the staff working on the application to other projects.

The petition seeking the court order was filed on behalf of the states of Washington and South Carolina, as well as Aiken County, S.C., and state public-utility officials. But this is not the first time the NRC has been taken to court on the issue.

In 2011, another panel of Court of Appeals judges noted that if the agency failed to meet the deadline, a writ of mandamus – a court order for government officials to perform their statutory duties – would be in order.

In 2012, the three judges hearing this case considered a similar request for the writ. But the commission argued vehemently that Congress wasn't interested in moving the licensing process forward. A majority of the judges noted at the time that, given the language of the law and the money still available to the NRC, it would have to order the commission to act, unless Congress changed the law or forbade the agency from spending any more money on the Yucca Mountain licensing process.

Congress did neither, leaving the majority to conclude today that "the commission is simply flouting the law."

In a dissent, chief judge Merrick Garland noted that a writ of mandamus is a "drastic and extraordinary remedy reserved for really extraordinary causes." In other cases where federal agencies have blow statutory deadlines by far larger margins than the NRC has with the DOE's application, "this court has not hesitated to deny the writ," he wrote.

In particular, he cited a previous decision in which the court refused to issue a writ "to do a useless thing, even though technically to uphold a legal right."

The NRC isn't refusing to approve or disapprove the license, he wrote, but has suspending efforts until more money comes through to finish the job.

Virtually all parties agree that the $11 million left is inadequate to pay for the work that remains to be done on the application. And for the last three years, Congress has been unwilling to appropriate the money to finish the job.

Judge Garland concluded that, with this decision, the court is requiring the NRC to do something truly useless. The writ amounts to an order to spent part of the remaining money "unpacking boxes, and the remainder packing them up again. This exercise will do nothing to safeguard the separation of powers, which my colleagues see as imperiled by the NRC's conduct."

NASUC and the Nuclear Energy Institute, which filed a friend of the court brief on behalf of the parties seeking the writ, both released statements applauding the court's action.

The NEI released a statement saying, “Today’s ruling is a clear signal regarding the NRC’s obligation to review the Department of Energy’s license application for a repository at Yucca Mountain and to issue a final decision granting or denying the license.... We encourage Congress to provide appropriate funding in FY2014 and beyond to facilitate completion of the NRC’s independent safety review."

For its part, the NRC is reviewing the decision before deciding on its next steps in the case, says agency spokesman David McIntyre.

Asked about the court's decision at a National Clean Energy Summit in Las Vegas on Tuesday, Senator Reid said that the ruling "was not unexpected, but it really doesn't mean much," according to the Las Vegas Review-Journal.

“With no disrespect to the court, this decision means nothing,” Reid said. “Yucca Mountain is an afterthought.”