USA | World Survey

Showdown in September

23 July 2010

A court order delivered in early May from the U.S. Court of Appeals, District of Columbia, may settle the fate of the beleaguered Yucca Mountain Project. In September, oral testimony will be given by plaintiffs who allege that the Obama administration has acted unlawfully. By Ed Davis

The plaintiffs include states like South Carolina and Washington, with large amounts of Department of Energy defence waste that could be left stranded for decades if the Yucca Mountain Project is terminated. All in all, there are 121 sites in 39 states that will have to cope with storing nuclear waste and spent fuel for decades, until another long-term plan is devised. In addition, both the industry association the Nuclear Energy Institute (NEI) and the National Association of Regulated Utility Commissioners (NARUC) have filed separate suits seeking to suspend payments to the?nuclear waste fund until the federal government comes up with a new plan to deal with nuclear waste.

The Yucca Mountain Project has been the subject of a long political battle between the state of Nevada, home of the politically powerful Senate Majority Leader, Senator Harry Reid, and the federal government. In September 2008, under the Bush Administration, the Department of Energy (DOE) submitted a license application for the Yucca Mountain Project to the Nuclear Regulatory Commission (NRC) for a review. During that same year, the U.S. presidential campaign was unfolding, and in a bid to capture the Democratic nomination, Barack Obama publicly committed that, if elected, he would cancel the project.

Upon the taking office and submitting the FY2010 budget, the Obama administration has followed through on its campaign promise, much to the frustration and worry of many lawmakers who have nuclear waste storage sites in their congressional districts. However politically unpopular the decision has been to follow through with termination, Yucca project supporters have not been able to block the administration’s actions in Congress because of Senator Reid’s outsized influence, and the reluctance of members of his own party to take the issue on when Reid faces an uphill election battle of his own in this November’s mid-term elections.

So they have raced to the courthouse instead to try to block the administration’s efforts until after the election, when the political landscape might have changed. Unfortunately for Yucca supporters, the Court was reluctant to issue an immediate injunction to prevent the administration working to terminate the project. This means that the DOE is under no court-ordered restraint to halt any of its planned termination activities in the meantime.

Still, the court did agree to hear the case on an expedited schedule. Yucca supporters believe that there is a strong chance that the court ultimately will rule in favour of the project. Plaintiffs argue that the actions of the administration and DOE are contrary to the Nuclear Waste Policy Act (NWPA), the National Environmental Protection Act (NEPA) and the Administrative Procedures Act (APA). First, they argue that the NWPA does not authorize the DOE to withdraw the license application. Second, they argue that under NEPA the administration’s decision to terminate Yucca is a major federal action requiring the preparation of a environmental impact statement (EIS) and record of decision (ROD). Third, they argue that the APA requires an agency to make decisions on the record with opportunity for public input and comment. They argue that the APA dictates that agency actions cannot be arbitrary and capricious.

The case for Yucca remains strong. In fact, the NRC technical review of the application continues, even while the NRC Atomic Safety Licensing Board (ASLB) tries to determine whether NRC rules even allow the DOE to withdraw the Yucca license application with prejudice, as the DOE has requested. (A withdrawal with prejudice would kill the project by making a second licence application impossible). Thus far the technical review of the Yucca licence application has produced no show-stoppers. The prospect remains that the NRC might issue a draft safety evaluation report (SER) this autumn finding that Yucca can meet its standards for long-term isolation of radioactivity.

The irony is that the Yucca supporters could win the next major battles but lose the war. This autumn, the court could rule in favour of the project, and the NRC could find that the project meets the repository regulatory requirements, only for the DOE to have completely dismantled the project before the verdict is in.

Author Info:

Ed Davis, senior nuclear industry consultant at Pegasus Group

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