The NRC's Collision Course

When Allison MacFarlane, the outgoing chairman of the U.S. Nuclear Regulatory Commission (NRC), abruptly announced her retirement in mid-October—leaving with almost four years left on her term—her stated reason was that she felt her work in implementing lessons learned from the Fukushima Daiichi nuclear plant disaster had been completed.

While MacFarlane won praise for that work, as well as for restoring stability to the agency after the turmoil that characterized the tenure of her predecessor, Gregory Jaczko, her departure also allows her to avoid the hot mess barreling down on the NRC on the subject of long-term waste storage. This long-simmering issue boiled up last August after a ruling by the D.C. Circuit Court of Appeals that the NRC must continue its license application review process for the Yucca Mountain Nuclear Waste Repository.

Yucca Mountain, which has been under consideration as a storage site for high-level nuclear waste since the 1970s, was lifted from its apparent grave after the D.C. Circuit told the NRC that, under the 1982 Nuclear Waste Policy Act (NWPA), it could not simply abandon the project on its own authority. Rather, the Act requires the NRC to consider the Department of Energy’s (DOE’s) application and render a decision within no more than four years. The DOE’s application was filed in July 2008, meaning the NRC is now two years past the last possible deadline. That, the court said, put the NRC in violation of the law.

Under Article II of the Constitution, Executive Branch agencies like the NRC are required to follow statutory mandates as long as Congress appropriates the necessary funds. Because the NRC still had just over $11 million in its Yucca Mountain account, it could not simply stop the project on policy grounds alone. And that’s where it gets sticky.

A Rock and a Hard Place

The debate over Yucca Mountain has always been more political than geological. Though the science over how Yucca Mountain would survive its 1,000,000-year projected lifetime is not settled, the main dispute has essentially always been over which state was going to get stuck dealing with everyone else’s civilian nuclear waste. When, after the NWPA was amended in 1987 and only Yucca Mountain was left standing, that state appeared to be Nevada.

The already slow progress toward getting Yucca Mountain built—it was initially supposed to open in January 1998—ground to a halt in 2006 when Sen. Harry Reid (D-Nev.) became the Senate majority leader and vowed to do whatever he could to kill the project. When Barack Obama became president two years later, he immediately followed through with a promise to stop Yucca Mountain, and the DOE withdrew its application.

Congress has not appropriated funds for the NRC’s Yucca Mountain licensing process since the 2011 Fiscal Year, and no one suggests that $11 million is enough to finish the job. Even the D.C. Circuit acknowledged that problem in its ruling. (This is another constitutional restraint: The Executive Branch can’t spend money Congress hasn’t appropriated.)

But as I write this the morning of Nov. 5, Republicans have taken control of the Senate in the 2014 midterm elections. That means Harry Reid will lose his spot as majority leader, though only some of his power to block Yucca Mountain. That’s because the gridlock in Washington is unlikely to ease significantly no matter the outcome of the election.

That being said, reversing the Obama administration’s policies on energy is at the top of the GOP agenda. Restarting the process for long-term waste storage is a priority for a number of prominent Republicans, notably Sen. Lindsay Graham (R-S.C.)—his state was one of the parties suing the NRC—and Sen. Lisa Murkowski (R-Alaska), who will probably be the new chair of the Senate Energy and Natural Resources Committee.

Impending Collisions

The NRC is trying to comply with the court ruling while still making clear the direction it prefers. In August, it essentially returned fire by issuing a new Waste Confidence Decision finding that spent fuel can be safely stored on-site in dry casks for indefinite periods. That decision, as was its 2010 predecessor, was immediately challenged in federal court by the same group of northeastern states that got the previous rule overturned.

Then, in late October, the NRC issued Volume 3 of its “Safety Evaluation Report on Yucca Mountain,” finding that the repository would meet regulatory requirements once it’s full and closed to further storage. The NRC is promising to issue Volumes 4 and 5 (on the repository’s administrative requirements, and license specifications, respectively) by January.

It’s not clear what will happen next. When the NRC runs out of money, that will be that until Congress appropriates something to keep the license process moving. With Harry Reid at the helm of the Senate, that was never happening, but with a GOP Senate, it’s possible that Obama might be willing to reverse course on Yucca Mountain in exchange for saving parts of his Climate Action Plan. MacFarlane, who has long been on record as opposing Yucca Mountain because she feels the site is unsuitable—though she supports geological storage—could surely see this writing on the wall as clearly as anyone else.

Washington observers view incoming Commissioner Stephen Burns as having the inside track for the chairmanship when MacFarlane’s gone. Like Jaczko, he is a long-time Reid ally. Since Burns is already on the commission, Obama can name him chairman without involving the Senate. But when MacFarlane departs, that will leave a vacant Democratic seat—one that will need Senate confirmation to fill.

All of that sets the stage for a difficult next few years for the NRC and its head. One can little fault MacFarlane for getting out while the getting was good. ■

— Thomas W. Overton, JD is a POWER associate editor.