Nevada legal challenge filed in Yucca Mountain license case

The State of Nevada has asked that the full U.S. Court of Appeals for the District of Columbia Circuit reconsider a recent hearing by a three-judge panel that effectively ordered the Nuclear Regulatory Commission (NRC) to restart license proceedings for the Yucca Mountain spent fuel repository in Nevada.

The petition for rehearing was filed by the state on Sept. 26. Nevada seeks a rehearing “en banc” on the three-judge panel’s two-to-one decision in August that granted a “writ of mandamus” compelling NRC to promptly continue with consideration of the Department of Energy (DOE) application to build a high-level radioactive waste repository in Yucca Mountain, Nev.

The NRC did not seek a rehearing and did not participate in Nevada’s petition for en banc review, an NRC spokesperson said by email on Sept. 30. When grilled by a House of Representatives panel on Sept. 10, NRC Chairman Allison Macfarlane had declined to say whether NRC would appeal.

Aside from asking for rehearing by the full appeals court, seeking review by the U.S. Supreme Court would be one of the few remaining options for parties in the Yucca Mountain case.

The 18-page rehearing document submitted by Nevada argued that the original August decision did not address whether the writ commands NRC to do a “useless thing.” The case is also important because it could encourage the filing of mandamus petitions any time “an agency fails to meet some statutory deadline.”

The Yucca Mountain license process is highly complex and the state said NRC made a prudent decision to conserve resources “when faced with Congress’ refusal to provide funds sufficient to make meaningful progress on the Yucca Mountain license application.”

After Yucca Mountain was tabled by the Obama administration, the Blue Ribbon Commission on America’s Nuclear Future recommended finding a “willing” community to host a nuclear waste repository. The same advisory commission also called for moving nuclear waste administration out of DOE.

The much-litigated case in the D.C. Circuit is “In Re: Aiken County, et al versus U.S. NRC. NO. 11-1271.

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