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LEGAL TIMES: Decision on Yucca Mountain Overdue

NRC is a year late in issuing final ruling on license application for nuclear waste site.

By Rep. Fred Upton (R-MI) and Rep. John Dingell (D-MI) -

Congress passed the Nuclear Waste Policy Act of 1982 to establish a deliberate, collaborative and mandatory process to site, license, build and operate a national permanent nuclear waste repository. The act obliges the federal government to safely dispose of high-level nuclear defense waste and commercial spent fuel from power plants. Electricity consumers and taxpayers have paid approximately $15 billion to determine if the Yucca Mountain site in Nevada would be a safe repository. The U.S. Nuclear Regulatory Commission (NRC) owes them an answer.

Congress wrote and passed the Nuclear Waste Policy Act with a sense of urgency so that the process would move forward without delay. The act set out an unambiguous schedule of up to four years following the filing of a license application for the NRC to conduct its review and issue a final decision. Recognizing that the repository siting and licensing process could be contentious, Congress had the foresight to provide for consolidated legal jurisdiction and expedited review at the U.S. Court of Appeals for the D.C. Circuit.Congress' foresight has since been validated, and the repository licensing process has indeed proven to be contentious. After filing the license application in 2008, the Department of Energy later sought to withdraw the application to preclude any future consideration of the Yucca Mountain site. Subsequently, in 2010, the NRC chairman ordered agency staff to terminate their review and remove key findings from licensing reports documenting their safety review. Although the law mandated a four-year schedule to review the license, five years have elapsed, and the NRC has not issued a final decision.

In response to these actions, the D.C. Circuit has been asked to order the NRC to resume its review of the Department of Energy's Yucca Mountain licensing application using funds already appropriated by Congress for that purpose. On November 4, 2011, the court granted expedited consideration of the case. Yet, on August 3, 2012, the court suspended consideration of the case to see if Congress would change either the Nuclear Waste Policy Act or prior appropriations acts. Congress has done neither, and the court has still not acted.
In an earlier case, the court indicated that it would direct executive branch action when it sees "transparent violations of a clear duty to act." More recently, Judge Brett Kavanaugh noted in his concurrence with the court's August 3, 2012, order, "An executive or independent agency generally has no authority to disregard a statute that mandates or prohibits specific agency actions, at least so long as there is some appropriated funding available." Our committee has determined, and the court has acknowledged, that the NRC has at least $10.4 million in appropriated funds — more than enough to complete the safety review.
In our view, the statutory duties of the president and the NRC are clear and appropriated funds are available. The House of Representatives did its part last year by passing a bipartisan amendment by a vote of 326-81 for an additional $10 million so the NRC could continue the licensing process and technical review for Yucca Mountain. Now others must act to fulfill the intent and purpose of the Nuclear Waste Policy Act. The need for action is urgent: Spent fuel and nuclear waste continue to accumulate at sites across the country that were never designed for long-term storage. Even NRC Chairwoman Allison Macfarlane noted the importance of this issue during a recent Senate hearing: "We are very aware of the importance of this court decision not only to the NRC but to the public, the nation as a whole." To protect public health, safety and the environment, Congress needs to know whether the court will enforce the Nuclear Waste Policy Act.
In our view, it's time to uphold the rule of law.
U.S. Representative Fred Upton (R-Mich.) is the chairman of the House Energy and Commerce Committee, and U.S. Represent­ative John Dingell (D-Mich.) is chairman emeritus.


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