Court should order US NRC to resume Yucca review: petition

Washington (Platts)--4Jan2013/453 pm EST/2153 GMT

Petitioners seeking to force US Nuclear Regulatory Commission to resume its review of the Department of Energy's application for a nuclear waste repository at Yucca Mountain, Nevada, on Friday said Congress' failure to act on the matter means a federal court should immediately order resumption of the work.

The US Court of Appeals for the District of Columbia Circuit had ordered parties to submit an update to their positions by Friday to take into account any action by the 112th Congress, which ended Tuesday. A new Congress began its session Wednesday.

The last Congress did not pass any legislation to modify the requirements in the Nuclear Waste Policy Act that NRC complete its review of DOE's application, petitioners Aiken County, South Carolina, Nye County, Nevada, South Carolina and Washington states, the National Association of Regulatory Utility Commissioners and three individuals said in their update to the court. The parties sued NRC in 2011 seeking to force it to resume the review, which the agency said it stopped because of a lack of funds.

"The NRC's obligations to move forward on the license application ... should be enforced," the joint petitioner's update said.

The court had extended an earlier December 14 deadline for the updates on congressional action, acting on an NRC request. NRC had said that "ongoing negotiations" between the executive branch and Congress might address the funding issue.

DOE abandoned the project in 2010, citing opposition from the state of Nevada.

Neither NRC nor DOE requested funds for Yucca Mountain licensing work in fiscal 2013, which started October 1.

NRC said in its court filing Friday afternoon that Congress' failure to add funds for the Yucca Mountain review during negotiations to avoid the so-called fiscal cliff at year-end, President Barack Obama's re-election and the fact that neither chamber of Congress has changed party control means there is no reason to force it to resume the review.

"The election returned to office an Executive Branch administration that has stated that it does not intend to seek a license for Yucca Mountain," NRC said. "And the election left the political balance of power unchanged in the Legislative Branch, which has repeatedly indicated through its recent funding decisions that it does not intend to appropriate additional Nuclear Waste Fund money for this project," it added.

The agency has $10.5 million remaining in funds available for the Yucca Mountain review, an amount that would be insufficient for any long-term restart of its staff efforts, NRC said in the filing.

The state of Nevada, which opposes the Yucca Mountain facility, said in its update, also filed Friday, that Congress failed to provide additional funding for NRC to continue the review.

No such money was made available in a continuing resolution in September that funded government activities until the end of March, Nevada said. "Congress rejected, for the second straight fiscal year, the chance to provide the [NRC] with any money to continue the Yucca Mountain licensing proceeding," Nevada said.

Congress also did not provide DOE with additional money for advancing the license application, the state said.

It is not clear when the court will make a final ruling.

Two members of the three-judge panel have indicated in previous opinions they support ordering NRC to resume the review, even if Congress were not to act on the matter.

--William Freebairn, william_freebairn@platts.com --Edited by Jeff Barber, jeff_barber@platts.com