Court Ruling Underscores Urgent Need for NRC to Complete Action on Yucca Application

July 1, 2011

WASHINGTON, DC - The U.S. Court of Appeals for the District of Columbia Circuit today underscored the importance of the Nuclear Regulatory Commission's obligation to complete its review of the Department of Energy's license application for Yucca Mountain. The court's decision comes almost exactly one year after the NRC Atomic Safety Licensing Board denied the Department of Energy's motion to withdraw the Yucca Mountain repository licensing application. The Energy and Commerce Committee is investigating the administration's decision-making process to terminate the Yucca Mountain nuclear repository.

The three judges, all in concurrence, each highlighted the importance of the NRC in the case involving the termination of the Yucca Mountain nuclear repository. Chief Judge Sentelle's ruling states, "The NWPA set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE has submitted a construction license application for the Yucca Mountain repository and the Commission maintains a statutory duty to review that application." 

Judge Brown went on to write, "It is arguable the NRC has abdicated its statutory responsibility under the NWPA." Judge Kavanaugh also weighed in on the importance of the NRC in this debate, writing, "(T)he President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission."

In response to the court's decision, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) released the following statement:
 
"The court's decision underscores the urgency for the NRC to complete action on the Yucca repository licensing application.  With Commissioner Ostendorff set for another term, the NRC must now come together and finalize its vote on the Atomic Safety Licensing Board's ruling that DOE cannot withdraw Yucca's application. The Obama administration has already chosen to squander $15 billion; decades of scientific research and bipartisan collaboration hang in the balance, and taxpayers remain on the hook for billions of dollars more in future liability claims. Chairman Jaczko's politically motivated efforts to manipulate and steamroll this process, brought to light by the NRC Inspector General and career scientists, will no longer be tolerated. It's time for the NRC to get back to work and complete its job."

The court's decision comes a week after the Environment and the Economy Subcommittee held a hearing with staff from the Nuclear Regulatory Commission responsible for the scientific and technical evaluation and review of DOE's Yucca Mountain license application. The NRC Inspector General recently released a report that exposed gross manipulation on behalf of the agency's leadership to influence the career staff's review process.  The staff testimony reaffirmed the findings of the IG report, citing specific instances of how their decades of work had been deliberately suppressed.
 
Background: The development of the Yucca repository has been a costly and lengthy process.  The Government Accountability Office estimates that more than $15 billion has been spent on the Yucca Mountain repository since 1983, $10 billion of which has been directly collected from the public's electric bills. The Yucca project was nearing the finish line with DOE's submission of a construction license application in June of 2008, which NRC docketed for review in September 2008 and was scheduled to decide within three years (September 2011) or seek a one-year extension.
 
During a recent hearing, witnesses revealed that Energy Secretary Steven Chu simply ignored the technical components of the Yucca Mountain nuclear repository when withdrawing the project's license application. A recent Government Accountability Office report also found "social and political opposition to a permanent repository, not technical issues, is the key obstacle."  GAO also found termination will add to taxpayer burdens, by increasing the substantial liability costs for DOE's failure to take custody of spent nuclear fuel. These costs presently amount to $15.4 billion if Yucca were to open as planned in 2020 and will increase by an estimated $500 million for each year delay after that.

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