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.
The ruling arrived as issue observers anticipate the Trump administration will in a matter of weeks again request funding at the NRC and Department of Energy to resume the licensing process that has been stalled for nearly a decade.
Should Congress approve the money this time, Nevada could renew its legal fight over NRC Commissioner David Wright – as the primary reasoning for dismissal from the U.S. Court of Appeals for the District of Columbia Circuit was that he might never be called on to join a ruling on the license.
“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,’” a three-judge panel wrote in a one-page order on Dec. 28, citing a D.C. Circuit ruling from 2007.
The state was not surprised by the court’s decision, according to Robert Halstead, executive director of the Nevada Agency for Nuclear Projects.
“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,” he 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 Energy Department filed its application with the NRC in 2008, 21 years after Congress designated Yucca Mountain as the location for the nation’s permanent nuclear waste repository. However, 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.
The Nevada state government has for decades fought the federal government’s efforts to establish Yucca Mountain, roughly 100 miles northwest of Las Vegas, as the end-site for tens of thousands of tons of spent fuel from nuclear power reactors and high-level radioactive waste from defense nuclear activities.
The five NRC commissioners would have final say on approval or rejection of the license.
Wright, previously an energy industry consultant in South Carolina, joined the commission last May to fill a vacancy through June 30, 2020. In June, Nevada asked Wright to voluntarily recuse himself from ruling on Yucca Mountain, saying his prior actions and statements showed an unfair bias toward the project. Among a list of examples, it cited his participation on the Yucca Mountain Task Force and a 2010 petition he submitted on behalf of the National Association of Regulatory Utility Commissioners calling on DOE not to withdraw its NRC license application.
Wright in July rejected the state request, saying he had only promoted solving the nation’s impasse on storage of nuclear waste rather than any specific burial location. “In short, I have not prejudged the technical, legal, or policy issues of the licensing proceeding,” he wrote in response to Nevada’s petition.
The state then took him to court in October.
Round 3 on Funding?
Meanwhile, the Trump administration is due in February to issue its federal budget proposal for fiscal 2020, which begins Oct. 1 of this year.
This will be its third budget rollout and potentially the third seeking appropriations for Yucca Mountain. For fiscal 2018, the White House asked for nearly $150 million at DOE and the NRC to restart licensing for the program. Congress ultimately appropriated nothing, and zeroed it out again for the current fiscal 2019 when the Trump administration asked for close to $170 million.
The primary roadblock has been the Senate, starting with the Appropriations energy and water development subcommittee chaired by Sen. Lamar Alexander (R-Tenn.). The panel writes the Senate’s first draft of the annual bill funding the two agencies; for the last two years it has blanked Yucca Mountain while pressing DOE to focus on nearer-term efforts to consolidate spent nuclear reactor fuel at a small number of temporary storage facilities.
That stood in stark contrast to House appropriators, who tacked on an additional $100 million above the Energy Department request for Yucca Mountain in their fiscal 2019 budget plan.
In negotiations for the final multi-agency “minibus” appropriations legislation covering DOE and the NRC, the Senate had its way. President Donald Trump signed that bill into law in September, ensuring the two agencies would not be caught in the current partial government shutdown.
The Energy Department and Nuclear Regulatory Commission to date have not said whether their next budget plans will feature Yucca Mountain.
“I expect them to make the same request they made before,” Halstead said in a telephone interview Wednesday.
An industry source concurred: “My understanding is it’s still in play, but who knows how it’s going to end up.”
What will happen on Capitol Hill remains an open question. Along with the Senate’s general reluctance in recent years to provide money for the project it was widely accepted in 2018 that Majority Leader Mitch McConnell (R-Ky.) put his foot on any legislation that would advance Yucca Mountain at the potential political risk to re-election of then-Sen. Dean Heller (R-Nev.) and the GOP majority. Heller lost in the November midterm elections to Rep. Jacky Rosen (D-Nev.), but Republicans still expanded their majority in the Senate to 53. Democrats, though, assumed control of the House.
It is too early to say how the wind will blow in the new Congress, a spokesman for the Nuclear Energy Institute said Wednesday. Representatives from the trade group for the U.S. nuclear industry have scheduled meetings on Capitol Hill in January and February, he said.
In a statement to RadWaste Monitor, Alexander said: “I want to resolve the nuclear waste stalemate this year. I support funding Yucca Mountain and proceeding with plans to allow used nuclear fuel to be stored at interim storage sites and at private facilities. I expect President Trump will continue to request funding to restart the licensing process for Yucca Mountain, and I look forward to moving forward on all tracks at the same time.”
Nevada’s congressional delegation is sure to sustain its opposition to funding, Halstead said: “There will be a big fight on that.”
Last year could have been big for Yucca Mountain, but its momentum fizzled. Along with the foiled budget requests, a major piece of nuclear waste management legislation died in the Senate.
Rep. John Shimkus’ (R-Ill.) Nuclear Waste Policy Amendments Act contained language that set a route for DOE to establish temporary storage of radioactive waste until the permanent repository is ready. But it was primarily viewed as a means of finally establishing Yucca Mountain, including by transferring 147,000 acres of federal property from the Interior Department to DOE for use in radioactive waste disposal.
The legislation passed out of the House Energy and Commerce Committee on a 49-4 vote in June 2017, then out of the full House last May by a vote of 340-72. But it never got a hearing at the Senate Environment and Public Works Committee, much less a vote, before the 115th Congress formally ended on Thursday.
Shimkus’ office did not respond to requests for comment this week on whether he will submit a new version of the bill in the new Congress.
