Morning Briefing - January 03, 2019
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January 03, 2019

Court Dismisses Nevada Petition Against NRC Commissioner on Yucca Mountain

By ExchangeMonitor

A federal appeals court has dismissed the state of Nevada’s petition seeking to force a member of the Nuclear Regulatory Commission to recuse himself from any decision-making on licensing the planned nuclear waste repository at Yucca Mountain.

There is no cause yet to require Commissioner David Wright’s recusal because he might never be called on to join a ruling on the moribund license application from the Department of Energy, according to a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

“Because petitioner concedes that the underlying proceedings are currently suspended and may never resume, petitioners claim is not ripe because it ‘rests upon the contingent future events that may not occur as anticipated, or indeed may not occur at all,’” the judges wrote in their one-page order on Dec. 28, citing a D.C. Circuit ruling from 2007.

“The dismissal at this point in time was not unexpected. We needed to file when we did in order to avoid some unlikely but possible future ruling that we had not filed a timely challenge,” Robert Halstead, executive director of the Nevada Agency for Nuclear Projects, said by email Wednesday. “Our filing and the Court’s dismissal mean that we will file again in the future, at the first instance in which there is a specific vote or action by Commissioner Wright regarding Yucca Mountain, and there will be no question that Nevada missed the opportunity to challenge his refusal to recuse himself.

The George W. Bush administration DOE filed its application with the NRC in 2008, but the Obama administration defunded the proceeding two years later. The Trump administration has failed to persuade Congress to fund resumption of the licensing process in its first two budget proposals.

Wright, previously an energy industry consultant in South Carolina, joined the commission last May. In June, Nevada asked Wright to voluntarily withdraw from any commission consideration of Yucca Mountain, saying his prior actions and statements showed an unfair bias toward the project. Wright refused, saying he had only promoted solving the nation’s impasse on storage of nuclear waste rather than any specific burial location. The state then took him to court in October.