400 Days and Still No Decision on NRC Atomic Safety Board Yucca Vote - Chairman Jaczko Continues Stonewalling Tally of 5 Votes

August 3, 2011

WASHINGTON, DC - The Energy and Commerce Committee's Environment and the Economy Subcommittee Chairman, Rep. John Shimkus (R-IL), today called on Nuclear Regulatory Commission Chairman Gregory Jaczko to once and for all affirm the NRC vote on the Atomic Safety Licensing Board's denial of the Department of Energy's motion to withdraw the Yucca Mountain repository licensing application. The ASLB made its decision 400 days ago, on June 29, 2010, but Chairman Jaczko continues to delay the affirmation of the Commission's votes. The Energy and Commerce Committee is investigating the administration's decision-making process to terminate the Yucca Mountain nuclear repository.

"Chairman Jaczko insists that he and his fellow commissioners should re-write the regulations for the entire commercial nuclear industry in a mere 90 days," said Shimkus. "Yet, it's been 400 days since the ASLB made its ruling and Jaczko has still not added up the five votes on whether NRC even has a license application from DOE. And he's still counting. Anybody who manipulates NRC rules and needs over 400 days to tally five votes should not be trusted to overhaul an entire industry in 90 days. After 400 days, it's well past time for Chairman Jaczko to cast aside politics and heed the DC Circuit Court's recommendation to finally complete action on the Yucca repository licensing application."

On July 1, 2011, the U.S. Court of Appeals for the District of Columbia Circuit underscored the importance of the NRC's obligation to complete its review of the Department of Energy's license application for Yucca Mountain. Chief Judge Sentelle's ruling stated, "The NWPA (Nuclear Waste Policy Act) 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."

During a May 4 subcommittee hearing, Chairman Shimkus directly asked the NRC Commissioners about the vote on the ASLB ruling, and whether they believed their votes were final.  While Chairman Jaczko had previously downplayed the ASLB vote during a March 16 subcommittee hearing, referring to the Commission vote as "preliminary views" and "prepared remarks," Commissioners Svinicki, Magwood, and Ostendorff all testified they believed their votes were based on thorough review and final.  Commissioner Ostendorff called his vote a "final, concrete legal decision."

In June, the NRC Inspector General released a report that revealed evidence that Chairman Jaczko abused his legal authority by deliberately withholding key decision-making information from his fellow Commissioners and intentionally blocking issues for resolution that were long overdue.

ASLB TIMELINE (as detailed in the NRC Inspector General Report)
On March 3, 2010, DOE submitted to the ASLB a motion to withdraw its Yucca Mountain license application.

On June 29, 2010, the ASLB issued a decision that denied DOE's motion to withdraw, concluding that DOE lacks the authority to seek to withdraw the application. The ASLB grounded its decision in its interpretation of the NWPA, reasoning that Congress directed DOE to file the application and the NRC to consider the application and issue a final, merits-based decision approving or disapproving.

One June 30, 2010, the Commission issued an order inviting hearing participants to file briefs as to whether the Commission should review, and reverse or uphold, the ASLB's decision, thus signifying the Commission's decision to review the ASLB's decisions.

On August 10, 2010, in accordance with the NRC's process, the Office of Commission Appellate Adjudication (OCAA) submitted adjudicatory paper SECY-10-0102, "U.S. Department of Energy (High-Level Waste Repository), Review of LBP-10-11, Docket No. 63-001-HLW," to the Commission for its review and vote. Commissioners began casting their votes on SECY-10-0102 on August 25, 2010, and a majority of Commissioners had voted by September 15, 2010. Chairman Jaczko did not cast his final vote at that time.

Despite the August 25, 2010 voting deadline, voting was not complete until Chairman Jaczko submitted his second vote (approximately six weeks after the majority of Commissioners had voted) on October 29, 2010.

The voting process proceeded as follows:

August 10, 2010 - Commissioner Apostolakis announced he would not participate
August 25, 2010 - Commissioner Svinicki voted
August 25, 2010 - Chairman Jaczko provided initial vote
August 26, 2010 - Commissioner Ostendorff voted
August 30, 2010 - Chairman Jaczko retracted initial vote
September 15, 2010 - Commissioner Magwood voted
October 29, 2010 - Chairman Jaczko voted for second time

Although the notational voting process was complete as of October 29, 2010, the Commission still has not held an affirmation vote on the matter and the draft order continues to sit in deliberation before the Commission for affirmation.

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