Nevada County wants NRC chair off Yucca Mountain case

Now that a federal appeals court has ordered the Nuclear Regulatory Commission (NRC) to resume consideration of a license application for a spent fuel site in Nevada, the host community has asked that NRC Chairwoman Allison Macfarlane recuse herself.

Macfarlane, who joined NRC as the commission chair in July 2012, was previously an academic and geologist. MacFarlane was a member of the White House Blue Ribbon Commission on America’s Nuclear Future. Nye County bases its contention on statements Macfarlane made prior to joining NRC.

In a motion filed Aug. 23 with an NRC panel, Ney County, Nev., argues that Macfarlane should recuse herself and be disqualified from any consideration related to the Department of Energy (DOE) application to establish the Yucca Mountain nuclear waste site.

An NRC spokesperson said Aug. 30 that Macfarlane has not made a decision on recusal. Macfarlane is scheduled to testify before a congressional panel Sept. 10 about Yucca Mountain.

NRC also announced late Aug. 30 that it was seeking input on how best to restart the Yucca Mountain process. Comments are due by Sept. 30.

The proposed Yucca Mountain repository for spent fuel is located within Nye County about 80 miles northwest of the Las Vegas Valley. Federal funding for the project ended in 2010.

Nye County urges that Macfarlane make this determination before considering any other pending matters on the proposed geologic repository at Yucca Mountain, Nev.

An attorney for Nye County argues in the filing that Macfarlane’s prior statements and writings indicate she would not be an impartial judge of the Yucca Mountain application. “The State of South Carolina, Aiken County, South Carolina, and the National Association of Regulatory Utilities Commissioners (NARUC), concur in the filing of this Motion by Nye County,” according to the county’s lawyer in the case, Robert M. Andersen.

Certain other parties in the litigation that went before the U.S. Circuit Court of Appeals for the District of Columbia Circuit, including DOE and the Nuclear Energy Institute (NEI), are taking no position on the motion, Nye County said.

The D.C. Circuit on Aug. 13 issued a “writ of mandamus” against NRC, which effectively ordered NRC to resume the Yucca Mountain license case. The court said NRC was required to go forward with the case because it is not a discretionary matter.

“Commissioner Macfarlane’s publications and statements would lead a reasonable person to question her impartiality in judging Yucca Mountain license matters, including those related to the resumption of review of the license application, and she has extrajudicial knowledge of disputed evidentiary facts pertinent to the Yucca Mountain licensing proceeding,” Nye County argues in its motion.

Nye County said Macfarlane’s publications, Congressional testimony, and other statements critical of DOE’s approach to Yucca Mountain raise doubts about her impartiality. Her statements critical of DOE’s Yucca Mountain effort date back several years before she became NRC chair, the county said in the filing. The county points to a 2006 book she co-authored.

“The portion of the book written by Dr. Macfarlane herself finds fault with the safety modeling and other methods for assessing safety that DOE was required by law and regulation to use in developing the license application,” according to the Nye County filing.

“In fairness, Dr. Macfarlane’s criticisms of the foundations for DOE’s licensing application were offered by her as an academic and independent technical consultant,” Nye County said.

“She could not have known at the time that she would later be nominated to serve as a Commissioner on the NRC, and was entitled, as a scientist and private citizen, to draw her own conclusions about the adequacy of DOE license application. Nevertheless, by stating her unvarnished conclusions about factual, legal, and policy issues that are now the subject of a contested licensing proceeding pending before the NRC, Dr. Macfarlane has disqualified herself from serving as an impartial judge of those same issues,” according to the Nye County filing.

The case is Docket No. 63-001-HLW, In the Matter of U.S. DOE License Application for Geologic Repository at Yucca Mountain.

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.