A three-judge panel at the Nuclear Regulatory Commission (NRC) on Tuesday unanimously denied a motion by the U.S Department of Energy to withdraw its 17-volume, 8,600-page license application to build a nuclear waste repository at Yucca Mountain, Nev. The withdrawal is illegal because it supersedes the Energy Department’s authority under the Nuclear Waste Policy Act (NWPA) of 1982, the judges said.

“Specifically, the NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit,” Judges Thomas Moore, Paul S. Ryerson, and Richard E. Wardwell of the NRC’s Construction Authorization Board (CAB) ruled (PDF).

“If Congress does not wish to see the Yucca Mountain project go forward, it can of course change the law or decide not to fund the proposed repository. Likewise, this Board’s decision does not in any way bear upon whether, after considering the merits, the NRC will ultimately authorize construction,” they wrote.

The judges noted that the DOE’s application, submitted just a little over 24 months ago, was “over two decades in the making and undergirded by millions of pages of studies, reports, and related materials at a reported cost of over 10 billion dollars.”

Energy Secretary Steven Chu had in March requested withdrawal of the Bush administration’s June 2008 application “with prejudice” as a “matter of policy,” because the “Nevada site “is not a workable option.” Chu had conceded that the application was not flawed nor the site unsafe, the judges said.

Considerations also included four petitions to block the DOE’s application withdrawal filed by the states of Washington and South Carolina plus Aiken County, S.C., the Prairie Island Indian Community (PIIC), and the voluntary offers for information by the Florida Public Service Commission. Those cases will be heard by the U.S. Court of Appeals for the District of Columbia Circuit this September.

Also pending was a high-profile lawsuit filed this April by the National Association of Regulatory Utility Commissioners (NARUC), which protests fees charged by the DOE for moving and disposing of spent nuclear fuel, the judges said. To date, ratepayers have paid approximately $17 billion into the Nuclear Waste Fund (NWF) over the past 27 years, according to NARUC. That fund, created by Congress in 1982, has earned an additional $13.5 billion in interest, bringing it to about $30 billion.

As the NRC’s CAB judges pointed out on Tuesday, the DOE’s abandonment of the Yucca Mountain application would delay removal of wastes from interim storage sites nationwide, increasing costs to regulated utilities and fees paid by ratepayers. A decision to reject the DOE’s motion to withdraw “will substantially diminish the economic harms alleged by NARUC by maintaining the NWPA licensing process and continuing along the legislatively established course toward a possible permanent repository for [high-level waste],” the judges wrote.

Yucca Mountain has been highly contentious since its was proposed 30 years ago, when the U.S. government began assessing if the remote ridge in the Mojave Desert 90 miles northwest of Las Vegas, Nev., was suitable for the nation’s first permanent deep geologic nuclear waste repository.

Following the DOE’s June 2008 submission of the application, and despite the Obama administration’s clear intent to shutter the project, the NRC has been reviewing DOE’s plan. It will ultimately decide whether the repository can safely contain 77,000 tons of high-level waste, including 57,000 tons of commercial spent fuel that is being currently stored at 121 temporary locations in 39 states across the nation. (For an in-depth analysis of the spent fuel storage options the U.S. has, including the Yucca Mountain repository, see “The U.S. Spent Nuclear Fuel Policy: Road to Nowhere,” in POWER’s May issue.)

The Obama administration has convened a Blue Ribbon Commission on America’s Nuclear Future to recommend a new disposal strategy, while effectively zeroing out funding for the Yucca Mountain project in its budget proposals.

Industry experts suggest that while the ruling could deal a blow to the Obama administration’s plan to derail the project, little will be changed as a result of it: NWPA designates Yucca Mountain as the site of the repository, but no funding will be granted to the project. One possible outcome is that the ruling could strengthen the 60-plus civil suits brought against the Energy Department for costs incurred by utilities, because it failed to bring the repository online on time.

Meanwhile, the DOE said it is confident that it has the legal authority to withdraw the application. As DOE spokeswoman Stephanie Mueller told POWER’s sister publication, The Energy Daily: “We believe the administrative board’s decision is wrong and believe that the Nuclear Regulatory Commission will reverse that decision.”

NARUC, like nuclear industry officials, applauded the CAB decision, saying it was “an important step forward” that sets the stage for a faster resolution of the nuclear waste problem and giving voice to ratepayers of nuclear utilities, who were “footing the bill.” But, as the group emphasized, it was not clear if the Obama administration would give the application the attention Congress specified.

“As part of its effort to terminate the Yucca project, the Administration released key technical personnel that provided the analysis and supporting documentation for the 8,600-page petition,” said NARUC President David Coen. “Further, the DOE budget for FY 2011 requests no appropriations for continuation of the program. Even if additional funding is made available, how do we know if the Administration will resume work on a project they oppose?”

Sen. Harry Reid (D-Nev.), who has worked doggedly to derail the project, said that “a full commission will likely take another look at the motion to withdraw the license application and make the final decision on behalf of the NRC in the coming months.”

“It makes no sense to ship 77,000 tons of the most toxic substance known to man across the country to bury it 90 miles away from the world’s premier tourist destination. Our country has some of the best scientific minds in the world and I am confident they can come up with a safer solution to deal with the nation’s nuclear waste,” Reid said.

Others hailed the decision: “I’m glad to see that the Construction Authorization Board agrees with me that DOE does not have the authority to withdraw the application to build a repository at Yucca Mountain," Sen. James M. Inhofe (R-Okla.), ranking member of the Senate Committee on Environment and Public Works, said in a statement on Tuesday. “Certainly, DOE Secretary Chu has given no reason for the NRC to cease its safety review other than stating that Yucca Mountain is no longer ‘a workable option.’”

Sources: NRC, DOE, The Energy Daily, Sen. Harry Reid, Sen. James Inhofe