DOE asks to halt Yucca Mountain

WASHINGTON -- The Department of Energy moved Wednesday to end almost 30 years of trying to bury nuclear waste in Nevada.

DOE attorneys filed paperwork to withdraw a license application to build a repository at Yucca Mountain and to make it difficult if not impossible for the project to be resurrected.

"The Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for long-term disposition of these materials," the department said in a 10-page motion submitted to an arm of the Nuclear Regulatory Commission.

If the application is dismissed, DOE "does not intend ever to refile" it, attorneys said. They asked the license bid be withdrawn "with prejudice," a legal status that would hammer the longest nails into the Yucca coffin.

The motion submitted to the Atomic Safety and Licensing Board represents the Yucca Mountain endgame for President Barack Obama. The president has said he wants to update the nation's options for managing a stockpile of more than 100,000 tons of used reactor fuel and highly radioactive defense waste.

A commission will start a study of future options with public meetings on March 25 and 26.

The NRC must rule on DOE's motion, a legal process that will dominate the next few months at least as parties weigh in on the prospect of ending the Yucca program.

The program could be brought to an effective end by late spring, said Marty Malsch, an attorney for the state.

On the other hand, it could become bogged down in new legal battles if an NRC decision is appealed to federal courts. Rather than an end, the motion could be the opening of a new chapter in the decades-long struggle over how the nation deals with its nuclear waste.

Attorneys familiar with the NRC said the agency has never been confronted with an applicant who wanted to kill its own project without the option of ever bringing it back.

Nevada officials were exultant after reading the DOE's motion. After years of battling the department, Nevada and DOE find themselves on the same side.

"Whoo hoo," Bruce Breslow, executive director of the Nevada Agency for Nuclear Projects, said in a note. "Aside from my wife this is the most beautiful thing I've ever seen."

The Energy Department's motion "marks the final stage of a battle that I've fought since arriving in Congress," said Sen. Harry Reid, D-Nev.

Sen. John Ensign, R-Nev., commended the Obama administration "for holding up their end of the bargain."

"Nevadans are finally seeing the end to a 30-year effort to drive a nuclear 'square peg' into a $100 billion 'round hole' in the Nevada desert," said Rep. Shelley Berkley, D-Nev.

The argument by DOE attorneys was simple: The secretary of energy wants to withdraw the application, and "settled law" holds that the NRC should defer to his judgment.

"Whether the public interest would be served by dismissing this application with prejudice is a matter within the purview of the secretary," they said.

Parties in the NRC license process have 10 days to file responses.

Darrell Lacy, director of Nye County's nuclear waste office, wondered about the reasons DOE used to justify its decision.

"It's an unprecedented move," he said. "There's probably little anyone can do to stop them."

Clark County Nuclear Waste Division Manager Irene Navis said the motion is a "very strong commitment" by the department, especially because it states that DOE does not ever intend to refile a Yucca Mountain construction request.

Anticipating arguments that withdrawing the license application would violate the Nuclear Waste Policy Act, department attorneys said that "is simply wrong."

Nothing in that law, attorneys said, "strips the secretary of an applicant's ordinary right to seek dismissal."

The Bush administration had gone into overdrive to complete its work and get the licensing process started in 2008. Obama in alliance with Reid pledged to reverse that course.

Obama has followed through, to the cheers of Nevadans and environmental activists who say the site would be unsafe and to the boos of the nuclear industry and officials in other states where the radioactive materials will remain for the foreseeable future.

The states of Washington and South Carolina, home to nuclear weapons waste that was scheduled for repository burial, have filed motions to intervene in the case, hoping to keep the project alive.

Steve Kraft, a Nuclear Energy Institute senior director, said NEI will file an objection and seek to prevent the license from being withdrawn with prejudice. DOE, he said, failed to give a reason why it wants to end the program.

In previewing possible arguments, nuclear industry attorneys say that power companies, electricity ratepayers and taxpayers would be deprived of their legal rights if the repository plan were shelved and not allowed to be resubmitted.

At a congressional hearing Wednesday, Energy Secretary Steven Chu came under fire from several Republicans who said DOE was ending the Yucca project without giving a reason why.

"This is a president who said he wants to bring scientific analysis to its rightful place," said Rep. Mario Diaz-Balart, R-Fla. "What was the scientific analysis, and who made it to withdraw the application?"

Rep. Vern Ehlers, R-Mich., a nuclear physicist, came to Chu's rescue. Congress, he said, set "unrealistic requirements for the Yucca repository that in my mind could not be met under any realistic procedures."

Las Vegas Review-Journal writer Keith Rogers contributed to this report. Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@ stephensmedia.com or 202-783-1760.