D.C. Circuit hears arguments on NRC handling of Yucca Mountain

The U.S. Court of Appeals for the District of Columbia Circuit could rule within the next few months on whether the Nuclear Regulatory Commission (NRC) should be forced to reopen its license case for the Yucca Mountain spent fuel repository in Nevada, even though the Obama administration has no interest in developing the much-debated nuclear waste site.

The National Association of Regulatory Utility Commissioners (NARUC) and various state and local governments have claimed that NRC defied a congressional mandate by electing to stop the license process.

A three-judge panel for the D.C. Circuit heard oral arguments on the matter May 2 before a full courtroom in Washington, D.C.

NARUC has argued that NRC’s decision not to complete the Yucca Mountain license was a political one that the federal agency has tried to depict as a decision trigged by budget constraints.

From the tone of the judges’questions, it was clear they were skeptical about NRC’s decision to shut down the licensing process even though about $10m in funding is evidently still available to be used for the Yucca Mountain licensing case.

What was less clear, however, is what the court should do to remedy the situation, said Judge Merrick Garland. The judge questioned if $10m would be sufficient for the NRC license process.

That level of funding would enable NRC to do a safety evaluation report, which could underpin an eventual NRC decision to approve or reject the license, said Washington state Assistant Attorney General Andrew Fitz.

The nation will never have a nuclear waste repository if a presidential administration elects not to follow the procedures and three-year window that Congress had dictated for NRC to act, Fitz said.

“It was unreasonable for the NRC to abandon its process,” Fitz said. “The administration chose to abdicate its duty.,” Fitz said. The congress had drafted special rules for Yucca Mountain licensing knowing that it is the ultimate “not in my backyard” issue, Fitz said.

NRC not wanting to throw good money after bad?

NRC attorney Charles Mullins countered, however, by saying the nuclear agency was merely being a good steward of public funds. There was no way that NRC could have finished the elaborate Yucca Mountain licensing process for $10m, Mullins said.

With this in mind, the NRC decided not to throw “good money after bad,” Mullins said. Mullins said, adding there was no way NRC could assume that additional budget funds would be issued to complete the license case – especially when it did not expect the Obama administration to propose additional funding for Yucca Mountain.

 But judges on the panel reminded Mullins that the president does not have the final word on NRC’s budget. “Your whole theory is based upon the theory that Congress will do zero,” in terms of new funding for Yucca Mountain, said Judge Brett Kavanaugh.

During the oral arguments, attorneys opposing NRC noted that Energy Secretary Stephen Chu has indicated that the Department of Energy (DOE) will pursue the Yucca Mountain license at NRC if directed to do so, by Congress.

Martin Malsch, an attorney representing the state of Nevada (which has opposed the waste site), said it was important to remember the costs that will be eaten by non-federal parties to the case.

Malsch stressed the size and complexity of the Yucca Mountain case, noting that the license application alone was thousands of pages long.

There was also discussion during oral argument of whether one of the various parties in the case should approach Congress about allowing some of the nuclear waste fees paid by nuclear power plants to be used for funding the Yucca Mountain license decision.

In its case, NARUC and the states alleged that the NRC, and in particular Chairman Greg Jaczko, acted politically instead of scientifically after DOE, which filed the Yucca Mountain license application in June 2008, asked to withdraw its application in March 2010, claiming that the Nevada venue is no longer an option.

The DOE motion was rejected in June 2010 by the NRC’s Atomic Safety and Licensing Board (ASLB), the technical staff responsible for the Yucca application. Not until September 2011 did the NRC take official action on the ASLB decision when it affirmed that the agency was deadlocked, officially upholding the review board’s recommendation.

But the agency also ordered the ASLB to conclude its review, claiming that Congress had not appropriated enough funding to proceed, said a NARUC spokesperson.

Over the years, the federal government has probably spent more than $6 bn toward research and development of the Yucca Mountain spent fuel site. Actually getting the project licensed and built would take several billion dollars more, attorneys said.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.