Yucca battle resumes; NRC chair asked to recuse herself

WASHINGTON — The legal war over Yucca Mountain resumed with force on Friday with a demand that the chairman of the Nuclear Regulatory Commission recuse herself or be disqualified from the agency’s about-to-resume work on the proposed nuclear waste repository.

Organizations that favor the Nevada site challenged Allison Macfarlane, who took over leadership of the five-member NRC board in July 2012 and who previously studied and spoke about Yucca Mountain as an academic.

In a 24-page motion filed with the NRC, an attorney for Nevada’s Nye County argued Macfarlane was not impartial, and already has reached conclusions about key technical issues surrounding the site’s bid for a license.

“A reasonable person would certainly harbor doubts about Commissioner Macfarlane’s impartiality because of her publications, congressional testimony and statements critical of the Department of Energy’s technical, legal and policy approach to the Yucca Mountain licensing,” according to the motion.

In addition, it said, “many believe” Macfarlane was chosen to head the NRC “precisely because she supports DOE’s attempt to withdraw the Yucca Mountain license application.”

Macfarlane declined to comment, according to NRC spokesman David McIntyre. He said by agency precedent it would be up to Macfarlane to decide whether to recuse, a decision she would explain in writing, “in due course.”

The motion filed by Nye County attorney Robert Andersen is the first movement on Yucca Mountain since a federal appeals court last week ordered the NRC to resume its repository licensing process that was halted in 2010.

The decision also presents the first opportunities for Macfarlane to weigh in on Yucca Mountain as a member of the NRC. She was confirmed as chairwoman in July 2012 to succeed Gregory Jaczko, a former aide to Sen. Harry Reid, D-Nev.

Jaczko’s tenure was riddled by controversy over his handling of Yucca Mountain and other matters, including instructing staff to wind down its work on the Nevada project in 2010 as the Obama administration was taking other steps to shelve the program.

Macfarlane, a geologist and associate professor of environmental science at George Mason University, was nominated by President Barack Obama and supported by Reid to become chairwoman shortly after Jaczko announced his resignation in May 2012. She was confirmed without dissent on June 29, 2012, in a deal that paired her with a Republican nominee.

Macfarlane was reconfirmed last month to a full five-year term as NRC chairwoman.

It would not be the first time an NRC commissioner has been called upon to remove himself from Yucca Mountain matters. Commissioner George Apostolakis recused himself stemming from a project review he performed in 2007-08 for Sandia National Laboratories.

Commissioners William Magwood and William Ostendorff were called on to recuse themselves stemming from comments they made about the project at a February 2010 Senate hearing. Both rejected the call, saying they had not prejudged the case.

Further, Democrats have accused Commissioner Kristine Svinicki, a Republican, of not being forthcoming about an association with the repository project when she worked during the 1990s as an engineer in the office that managed the site. She has said her work was not directly related.

In Macfarlane’s defense, Nevada official Robert Halstead said she was extensively vetted during the Senate’s confirmation process, in part because of the political sensitivity of the NRC post and because of the Yucca Mountain controversies that had engulfed Jaczko.

“Some real reasonable people in the Senate took a really hard look at her, including her writings,” said Halstead, executive director of the Nevada Agency of Nuclear Projects. “She was very carefully and fully vetted.”

Nye County’s motion said it was being joined by South Carolina, Aiken County in that state, and the National Association of Regulatory Utility Commissioners. Those entities along with others were plaintiffs in the just-decided lawsuit that charged the NRC acted illegally by shuttering the licensing process without consent from Congress.

Macfarlane, who holds a doctorate in geology from the Massachusetts Institute of Technology, expressed skepticism about the site in a 2006 book of scholarly articles she co-edited called “Uncertainty Underground: Yucca Mountain and the Nation’s High Level Nuclear Waste.”

In the book, and also in testimony at a Senate hearing that year, Macfarlane said she doubted the Department of Energy could predict with confidence how an underground nuclear waste site would work over thousands of years into the future.

“It is almost impossible to decipher the detailed history of a rock, let alone predict reactions into the geologic future,” she wrote. “Geology has not advanced far enough yet to expect that it can do this for the rocks at Yucca Mountain.”

On the other hand, she wrote, “I am not trying to suggest abandoning Yucca Mountain and going back to the drawing board.” She said rather the Department of Energy should change its computer modeling of the site.

In 2009, Macfarlane told an interviewer from the MIT Technology Review she thought Yucca Mountain was geologically unsuitable for nuclear waste because of potential earthquake and volcano threats, and because materials would be particularly susceptible to corrosion.

“The technical objections are serious and real,” she said.

Questioned at a House hearing last year, Macfarlane distanced herself from her earlier criticism of Yucca Mountain and said she would have “an open mind” on the project. She contended her views were based on research conducted more than a decade ago, and she had not read more recent scientific evaluations of the site.

At the hearing. Rep. John Shimkus, R-Ill., challenged Macfarlane to recuse herself for a year on Yucca matters. She declined to commit, saying she would evaluate situations as they arose.

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760. Follow him on Twitter @STetreaultDC.