Litigation over Yucca Mountain as a nuclear waste disposal site continued its roller-coaster ride this week when the Atomic Safety and Licensing Board rejected the Department of Energy's move to stop the Nevada project, and, a day later, the Nuclear Regulatory Commission ordered an appeal to itself.
"The normal process is board decisions may be appealed to the full commission," explained Jay Silberg, partner in the energy practice of Pillsbury Winthrop Shaw Pittman. "The commission didn't wait for anyone to file an appeal. It issued an order saying, 'File your briefs and here are the dates.'"
The Obama Administration announced last year it would pursue other alternatives to the delay-plagued Yucca Mountain repository. In March of this year, DOE formally moved to withdraw its application to construct the facility by filing the request with the atomic licensing board.
The three-member licensing board ruled on June 29 that the Nuclear Waste Policy Act of 1982 does not give the Energy secretary the discretion to substitute his policy for the one established by Congress in the act.
“Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decisionmaking process by withdrawing the Application,” said the board.
The act requires a decision by the Nuclear Regulatory Commission on the merits of the construction permit, added the board.
The board’s frustration with the entire process was obvious in its ruling, which opened in the following way:
“The Commission has variously described the adjudicatory portion of the proceeding on the application of the Department of Energy (DOE) for authorization to construct a national high-level nuclear waste repository at Yucca Mountain, Nevada, as 'unusual,' 'extensive,' and 'unique.' Ensuring that these labels remain current and valid, we now have before us DOE’s motion to withdraw with prejudice its 17-volume, 8600-page construction authorization application, an application submitted just a little over 24 months ago, but over two decades in the making and undergirded by millions of pages of studies, reports, and related materials at a reported cost of over 10 billion dollars.
"Conceding that the Application is not flawed nor the site unsafe, the Secretary of Energy seeks to withdraw the Application with prejudice as a 'matter of policy' because the Nevada site 'is not a workable option.’”
The board explained that the purpose and “detailed” structure of the nuclear waste act made it “illogical” to allow the Energy secretary to withdraw the licensing application before the NRC made a “merits-based” decision on the construction permit.
“Did Congress, which so carefully preserved ultimate control over the multi-stage process that it crafted, intend—without ever saying so—that DOE could unilaterally withdraw the Application and prevent the NRC from considering it?” asked the board. “We think not. When Congress selected the Yucca Mountain site over Nevada’s objection in 2002, it reinforced the expectation in the 1982 Act that the project would be removed from the political process and that the NRC would complete an evaluation of the technical merits.”
The state of Nevada, joined by Clark County, Nev., the Joint Timbisha Shoshone Tribal Group, and the Native Community Action Council, supported DOE’s motion to withdraw its application with prejudice. The NRC staff argued for withdrawal without prejudice. The state of California also backed DOE’s motion.
Opposing DOE’s motion were the Nuclear Energy Institute, for which Silberg is co-counsel; six Nevada counties; the Florida Public Service Commission; the state of South Carolina and Aiken County, S.C., and the National Association of Regulatory Utility Commissioners.
The NRC’s order on June 30 set out a short briefing schedule over the next two weeks.
There is parallel litigation ongoing in the U.S. Court of Appeals for the D.C. Circuit by many of the same parties opposing shutdown of the Yucca Mountain project in the NRC administrative process. After the NRC rules in the administrative case, an appeal of that decision may be taken to the D.C. Circuit.
“I think Yucca Mountain is still very much in play,” said Silberg. “The licensing board decision was really quite strong and the commission is going to have to deal with that.”
A DOE spokesperson said in a statement, “The Department remains confident that we have the legal authority to withdraw the application for the Yucca Mountain repository. We believe the administrative board’s decision is wrong and anticipate that the Nuclear Regulatory Commission will reverse that decision.”
Meanwhile in the Federal Circuit, money damages against the federal government for breaching contracts with nuclear utilities for disposal of nuclear waste continue to mount. Jerry Stouck of Greenberg Traurig, a leading lawyer in those suits, said damage awards—as of yet uncollected—now total more than $1 billion.