Next stop, federal court!
By Cornelius Milmoe
In June 2010, the Nuclear Regulatory Commission’s Atomic Safety and Licensing Board (ASLB) determined that the Department of Energy’s attempted “withdrawal” of the Yucca Mountain license application could not relieve the NRC of its duty to make a decision approving or disapproving the application. A year after the ASLB decision, the U.S. Court of Appeals ruled in the Aiken County case that the Nuclear Waste Policy Act (NWPA) requires the NRC to review and act on the Yucca application, and that the court would order the NRC to make a decision if it refused to do its duty.
Despite the ASLB and court rulings, the NRC has suspended all agency action on the application and refused to release the Safety Evaluation Report (SER) prepared by NRC staff. The decision to suspend work and close out the license process was made unilaterally by Chairman Gregory Jaczko, not by the full commission.
On Friday, September 9—the NWPA due date for the NRC final decision, and 14 months after the ASLB decision—the NRC issued a two-part order in the licensing proceeding. First the order stated “the Commission finds itself evenly divided on whether to take the affirmative action of overturning or upholding the Board’s decision.” It would seem that with the divided vote, the ASLB decision denying the motion to withdraw would stand. But, the second part of the order stated, “we hereby exercise our inherent supervisory authority to direct the Board to, by the close of the current fiscal year [September 30], complete all necessary and appropriate case management activities, including disposal of all matters currently pending before it and comprehensively documenting the full history of the adjudicatory proceeding.”
The order is difficult to parse. On one hand, it indicates that there were not enough votes to terminate the case as the DOE requested, but on the other hand, it appears to direct the ASLB to terminate the case by the end of this month because of “budgetary limitations”. What is clear is that the NRC has thrown down the gauntlet to the court of appeals.
In its Aiken County opinion last July, the court deferred review of the NRC’s action in the Yucca Mountain proceeding until there was a final NRC decision. The court flatly stated that “the NWPA requires the Commission to issue a final decision approving or disapproving the issuance” of a license within three years of the application. It warned the NRC that it would issue an order compelling action if the NRC decision was “unreasonably delayed” or if the court found a “transparent violation of a clear duty to act”.
Judge Janice Rogers Brown wrote a separate concurring opinion that referenced Jaczko’s plan to provide no money for licensing activities and closing out review of the license application so that “unresolved legal questions, … would stay unresolved legal questions.” Even last June, Brown wrote, “It is arguable the NRC has abdicated its statutory responsibility under the NWPA.” Judge Brett Kavanaugh’s opinion recognized that President Obama has decided not to use Yucca Mountain, but concluded that the president does not have the final word about whether to terminate the Yucca Mountain project. Kavanaugh said, “[T]he ball in this case rests … with the Nuclear Regulatory Commission.”
The petitioners in the Aiken County case have filed a new motion for an order requiring the NRC to proceed with the licensing process as required by the NWPA. They argue that the NRC had the DOE appeal of the ASLB decision under consideration for 10 times longer than the 45 days it gave the ASLB to get briefs, hold hearings, and make the original decision. The petitioners also pointed to evidence in congressional testimony and a report by the NRC’s inspector general that Jaczko acted unilaterally, without a commission majority, to stop staff work on the license, withhold the staff SER, and delay the commission’s decision on the DOE motion. With that evidence, and the NRC’s failure to meet the NWPA deadline for its final decision, it seems likely that the court will conclude that the NRC is guilty of unreasonable delay and that it may be a transparent violation of a clear duty to act.
In any event, the court has given the NRC its chance to do its duty on the Yucca Mountain application, and the NRC has declined. The next episode will be in the court of appeals, as the NRC tries to defend its failure to act on the license application.
Note: A detailed analysis by C.J. Milmoe of the NRC actions is available via Nuclear Townhall.
C.J. Milmoe has been involved in waste management and nuclear power development for more than 30 years, both in government and in the private sector. He is active in ANS and in nuclear industry advocacy groups.