The state of Nevada has jumped the gun in seeking to force a member of the Nuclear Regulatory Commission to recuse himself from any ruling over the planned Yucca Mountain nuclear waste repository, so its petition in federal court should be dismissed, the NRC argued this week.
Nevada in August filed the dismissal motion in the U.S. Court of Appeals for the District of Columbia Circuit after Commissioner David Wright refused to voluntarily step aside from the long-moribund NRC adjudication of the Department of Energy license application for the disposal facility for spent nuclear reactor fuel and high-level radioactive waste. The state said Wright’s comments and actions prior to joining the commission proved he was biased in favor of licensing the site in Nye County, Nev., an assertion the commissioner denied.
In a 25-page response Monday, NRC Solicitor Andrew Averbach said Nevada’s petition largely echoes Nye County’s request in 2013 to have then-commission Chairman Allison Macfarlane recuse herself from the Yucca Mountain proceeding. That case also ended up before the D.C. Circuit, which dismissed the county’s petition in February 2014.
“This Court ploughed the same ground in 2014 in Nye County v. NRC. As in Nye County, the petitioner (here, the State of Nevada) asks this Court to overturn a Commissioner’s recusal decision on the basis of the Commissioner’s prior statements related to the proposed repository,” Averbach wrote. “As in Nye County, Nevada’s arguments are before the Court on a petition for review under the Nuclear Waste Policy Act (NWPA). As in Nye County, the licensing proceeding is not complete. And as in Nye County, the petition for review warrants dismissal because ‘[t]he challenged order is neither final nor ripe for review.’”
There was no immediate comment Wednesday from the state of Nevada.