The federal appeals court's Aug. 13 ruling was crystal clear. It said the Nuclear Regulatory Commission violated the law when it halted its review of a Dept. of Energy application for an underground nuclear-waste disposal site in Nevada. The court also directed NRC to reopen its evaluation.
The next steps in the proposed Yucca Mountain repository's 30-year saga are far from certain. NRC is reviewing the decision, spokesman David McIntyre said. The directive takes effect on Sept. 3, unless there is further action by the court. DOE is studying the ruling "and will respond appropriately to whatever steps the NRC takes in response to the decision," said spokeswoman Niketa Kumar.
In the near term, officials must decide whether to file an appeal, perhaps to the Supreme Court. But beyond that, NRC has limited funds to finish reviewing DOE's application, let alone the tens of billions to build and operate a storage facility at the Nevada site or elsewhere.
In a 2-1 decision, a panel of the U.S. Circuit Court of Appeals for the District of Columbia said NRC violated the Nuclear Waste Policy Act. The law, signed in 1983, set a three-year deadline for NRC to review a license application for a facility at Yucca Mountain for spent fuel and high-level radioactive waste.
DOE filed its application in June 2008, when NRC started to study it. But in early 2010, the Obama administration sought no fiscal 2011 funds for the project. In October 2010, then-NRC Chairman Gregory Jaczko directed staffers to halt work on one volume of the multi-part Yucca Mountain report and proceed to close the review, said a 2011 NRC inspector general's report. Susan Lynch, Nevada Agency for Nuclear Projects administrator of technical programs, says construction at the site ended several years ago, and the facility is basically shut.
Judge Brett M. Kavanaugh, writing for the panel's majority, said "the commission is simply flouting the law." He said NRC has $11.1 million for the review. He added, "No law states that the commission should decline to spend previously appropriated funds on the licensing process. No law states that the commission should shut down the licensing process."
Keith Chu, a spokesman for Senate energy committee Chairman Ron Wyden (D-Ore.), said it is clear NRC's $11.1 million "will not be sufficient to finish processing that application, which means the ball is still in Congress' court when it comes to deciding the direction of U.S. nuclear-waste policy." He said the ruling "only increases the urgency to break the gridlock over disposing of radioactive nuclear waste." At the end of 2012, about 69,000 metric tons of spent nuclear fuel were stored at various U.S. sites, according to the Nuclear Energy Institute.
Wyden and the committee's top Republican, Lisa Murkowski (Alaska), want action on a bill to carry out the Blue Ribbon Commission on America's Nuclear Future's January 2012 recommendations, such as building a pilot facility for spent fuel from decommissioned nuclear powerplants. Murkowski spokesman Robert Dillon says, "We believe it's a good time to push the legislation, and we hope to get it done this Congress."