In an apparent legal victory for the states of Washington and South Carolina, a divided federal court on Tuesday directed the Nuclear Regulatory Commission (NRC) to continue its legally obligated review of a license application to build the proposed permanent nuclear waste repository in Yucca Mountain, Nev.
The U.S. Court of Appeals for the D.C. Circuit in a 2-1 decision granted a long-sought writ of mandamus to petitioners, which include the states of Washington and South Carolina and are backed by industry group the Nuclear Energy Institute (NEI) and the National Association of Regulatory Utility Commissioners (NARUC).
The decision culminates legal challenges filed by the petitioners since 2010 to force the NRC to comply with the Nuclear Waste Policy Act, a law passed by Congress in 1983 and which provides the NRC “shall consider” the Department of Energy’s (DOE’s) license application to store nuclear waste at Yucca Mountain. As the federal court pointed out, the law also calls on the NRC to “issue a final decision approving or disapproving” the application to store nuclear waste at the repository within three years of its submission–or extend the deadline by an additional year if it issues a written report explaining the reason for the delay.
Reflecting the Obama administration’s opposition to the Yucca Mountain permanent nuclear waste repository, the DOE in 2010 withdrew from the NRC its June 2008–submitted application to license the Nevada facility and moved to terminate the project. The NRC’s Atomic Safety and Licensing Board had initially denied the motion, but under the direction of the commission, suspended the proceeding (though it preserved necessary records to abide by budgetary constraints).
In the court’s Aug. 13 opinion, Circuit Judge Brett Kavanaugh declined to review “the underlying policy debate,” noting that the court’s “more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.” Here, the NRC “has continued to violate the law governing the Yucca Mountain licensing process,” the court ruled.
The court noted that as recently as Fiscal Year 2011, Congress appropriated funds to the NRC so that the commission could conduct the “statutorily mandated” licensing process. “Importantly, the Commission has at least $11.1 million in appropriated funds to continue consideration of the license application,” Kavanaugh wrote. “But the statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy’s application has long since passed. Yet the Commission still has not issued the decision required by statute. Indeed, by its own admission, the Commission has no current intention of complying with the law.”
According to the federal court, mandamus is an “extraordinary remedy” that takes account of equitable considerations, and a writ of mandamus may be granted “to correct transparent violations of a clear duty to act.”
Earlier in 2012, the three-judge panel at the D.C. Circuit had issued an order holding the case in abeyance until the NRC could report back on whether or not Congress had allocated funding in its Fiscal Year 2013 appropriations to resume consideration of the application. At that time, the court’s majority had indicated a mandamus petition would have to be granted if the NRC did not act or Congress did not enact new legislation either terminating the NRC’s licensing process or otherwise make clear that the NRC cannot expend funds on the licensing process.
“As things stand, therefore, the Commission is simply flouting the law. In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us, we now grant the petition for writ of mandamus against the Nuclear Regulatory Commission,” the court ruled.
In a concurring opinion, Senior Circuit Judge Arthur Randolph went so far as to pin the blame on former NRC Chair Gregory Jaczko. “Although the Commission had a duty to act on the application and the means to fulfill that duty, former Chairman Gregory Jaczko orchestrated a systematic campaign of noncompliance,” Randolph wrote. “Jaczko unilaterally ordered Commission staff to terminate the review process in October 2010; instructed staff to remove key findings from reports evaluating the Yucca Mountain site; and ignored the will of his fellow Commissioners.” The court’s judgment underlined that the NRC’s duty is to “comply with the law,” adding, “and our duty is to make sure it does so.”
In the court’s dissenting opinion, Chief Judge Merrick Garland noted, however, that granting the writ would only direct the NRC to do a “useless thing.” The NRC had not refused to proceed with the Yucca Mountain application, he noted, pointing out that unanimous votes from both the commission and the ASLB had suspended the application proceedings until there are sufficient funds to make “meaningful progress.”
The agency has only about $11 million left in available funds. “No one disputes that $11 million is wholly insufficient to complete the processing of the application. By way of comparison, the Commission’s budget request for the most recent year in which it still expected the Yucca Mountain proceeding to move forward was $99.1 million,” Garland wrote. “The only real question, then, is whether the Commission can make any meaningful progress with $11 million.”
NARUC, whose members include regulatory governmental agencies in the nation’s 50 states, on Tuesday hailed the court’s decision. “It is unfortunate it took litigation and this decision to require the NRC to comply with its responsibilities under the Nuclear Waste Policy Act, but this decision sends a message that federal agencies cannot ignore laws they do not like,” Philip Jones, a representative of Washington State and president of the non-profit organization said. “Existing law requires the NRC to determine whether the facility and location is safe for storing spent-nuclear fuel. Even if it does, the fate of Yucca Mountain remains uncertain. But the NRC is the only agency with the authority and expertise to make the judgment that the facility will meet safety and other regulatory requirements. No matter what the eventual outcome will be, we can learn a great deal from their review, because geologic storage of nuclear waste remains the most viable option going forward.”
NARUC in July backed a new bipartisan Senate bill that seeks to break gridlock over a permanent nuclear waste repository by establishing a new nuclear waste administration and creating a consent-based process for siting nuclear waste facilities.
The matter has gained urgency since the D.C. Circuit in June 2012 struck down the NRC’s so-called “waste confidence” provisions in June last year, finding that an NRC ruling that said spent nuclear fuel from the nation’s power plants could be stored as long as 60 years after a plant’s operating license expires violated the National Environmental Policy Act (NEPA). Following that decision, the NRC put on hold all final licensing decisions—including those for 19 construction and operation licenses, 12 license renewals, and one operating license—until the federal regulatory body could hash out how it will deal with spent nuclear fuel.
Sources: POWERnews, D.C. Circuit, NARUC
—Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)