DOE appeals on Yucca decision

WASHINGTON -- The Obama administration appealed on Friday to overturn a ruling that has thrown a wrench into the shutdown of the Yucca Mountain nuclear waste project.

Department of Energy lawyers asked the five-member board of the Nuclear Regulatory Commission to set aside an application DOE filed two years ago to license a nuclear waste dump in Nevada.

By doing that, the department aims to reverse a ruling by a three-judge NRC panel last week that said the administration cannot halt repository licensing without a new law from Congress.

Halting the Yucca Mountain effort is a policy decision that is within the powers of the secretary of energy, the department said in a 48-page appeal. When Energy Secretary Steven Chu in March filed to withdraw the repository license application, "that should have been the end of the matter," the appeal said.

Chu called for the NRC to dismiss the application. The DOE appeal was supported by the state of Nevada.

In a series of competing filings, the states of Washington and South Carolina, the Nuclear Energy Institute, Aiken County in South Carolina and Nye County urged the NRC to reject the appeal.

The federal government operates the Savannah River reservation in South Carolina and the Hanford reservation in Washington where nuclear waste has been stored in anticipation of final disposal in Nevada. State and local officials there have taken a lead in challenging the Yucca Mountain shutdown.

By day's end, the deadline for appeals, as many as 19 governments and interested groups might weigh in, Bruce Breslow, executive director of the Nevada Agency for Nuclear Projects, said.

Pro-Yucca groups argue NRC commissioners should turn away all appeals.

The Atomic Safety and Licensing Board ruled that a federal nuclear waste law dating to 1982 required DOE to apply for a repository license and that the NRC must evaluate it and decide whether such a repository could be operated safely.

The law "does not give (Chu) the discretion to substitute his policy for the one established by Congress," the administrative judges said on June 29.

On Friday, the Nuclear Energy Institute said, "There is no finding of material fact involved ... that could be erroneous," and "the well-reasoned and carefully drafted board order should be allowed to become the NRC's final agency action."

The filings plunge the Yucca project deeper into legal waters as the Obama administration tries to unravel a program that was authorized by Congress almost 30 years ago. In a campaign pledge that helped him win Nevada in 2008, President Barack Obama said he would scrap the effort.

The NRC ruling board has set a fast-track schedule to consider an appeal. A final round of legal filings is due July 16. Attorneys familiar with the NRC board say they expect a ruling in a month.

Yucca Mountain has focused new attention on the NRC. Members of its board are nominated by the president and confirmed by the Senate.

Three of the current members were nominated by Obama. A fourth member, Chairman Gregory Jaczko, was a science adviser to Sen. Harry Reid, D-Nev., the Yucca project's most powerful critic. Some Nevada officials privately express optimism the board will side with Obama and Reid and allow the project to die.

In a legal filing, attorneys for Washington state and South Carolina, Aiken County, South Carolina and White Pine County argued that politics has colored the NRC, and that three of the five commissioners should be disqualified. Without a quorum, the NRC could not consider the DOE appeal.

The attorneys contend three commissioners might have been compromised at a Feb. 11 Senate confirmation hearing. William Magwood, George Apostolakis and William Ostendorff were asked on behalf of Reid whether they would "second guess" DOE. Each answered "no."

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.