Appeals Court Says It’s Time To Approve Or Deny Yucca Mountain Once And For All

A U.S. appeals court handed down a 2–1 decision today that the Nuclear Regulatory Commission (NRC) is legally obligated to finish the application process for the Yucca Mountain site, and to deny or approve the license. The Nevada mountain, proposed as a permanent storage facility for the United States’ nuclear waste, has long been the focus of political controversy. The suit to force the NRC to finish the process was brought by the National Association of Regulatory Utility Commissioners and other parties including Washington state and South Carolina.

The three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit concluded the NRC violated federal law by not delivering a decision by the federal deadline, and that lack of sufficient funds cited by the agency did not justify the delay.

The Department of Energy (DOE) first submitted the license application for the Yucca Mountain storage site to the NRC in 2008. According to the Nuclear Waste Policy Act of 1983, the NRC had three years to complete the application process and deliver a definitive “yes” or “no.” Then in 2010, the DOE attempted to withdraw its application. But the Atomic Safety Licensing Board turned the agency down, saying DOE failed to make a scientific case for why the application should be withdrawn. The NRC then split in a 2011 vote on whether to reject or uphold that decision, but said that in the absence of clear orders the Atomic Safety Licensing Board should continue efforts to wind down the application.

Meanwhile, the White House has not requested funding for the project since President Obama took office, nor did Congress pass funding for Yucca Mountain’s budget in the last few years. Between the lack of appropriations and the agency deadlock, the Yucca Mountain project was left in limbo with a limited amount of holdover funds — a little over $10 million — that the NRC concluded was too small to keep the application process going.

So the original three-year deadline came and went with no answer, leading to the current impasse.

The problem here is relatively straightforward: while there is widespread agreement in the abstract that the United States should find a permanent storage site for its nuclear waste, getting a specific locality to agree to be that site is very tricky. Overlaid on that dynamic is a patchwork of inter-regional, inter-state, and inter-party conflict. Yucca Mountain is located in Nye County, Nevada, and officials there have stated their consent to the project, viewing it as a jobs booster. But Nevada’s entire congressional delegation — lead by Senate Majority Leader Harry Reid (D-NV), who was instrumental in blocking congressional funding for Yucca Mountain — is opposed to the project. The House Republicans have tried to get renewed funding for Yucca Mountain past Reid and the project’s other opponents, and the issue splits the NRC itself: William Ostendorff, a commissioner, is a Republican and supports the Yucca Mountain project, while NRC Chairman and former aide to Sen. Reid Gregory Jaczko is an opponent of the plan.

Even conflicting state interests are at play. Nevada has no nuclear power plants, but nonetheless finds itself the premiere candidate for the long-term storage of every other state’s nuclear waste. Meanwhile, Washington state and South Carolina — both pushing the suit — have large stockpiles of nuclear waste sites that would ultimately go to the Yucca Mountain repository.