US court rules on Yucca Mountain

14 August 2013

The US Nuclear Regulatory Commission (NRC) acted illegally by abandoning the review of the licence application for the Yucca Mountain waste repository, the US Court of Appeals has ruled.

The ruling by the US Court of Appeals for the DC Circuit was made in response to a lawsuit brought by petitioners including the states of Washington and South Carolina, and other entities and individuals from those states including state public utility regulators. The petitioners were seeking a writ of mandamus: a court order effectively forcing the licence application work to be resumed.

The Department of Energy (DoE) submitted its application to build a permanent repository for the US nuclear industry's used fuel as well as military high-level wastes in 2008, but the NRC suspended work on the licence following a 2009 decision by the US administration to abandon the project and start afresh on developing a new strategy to deal with nuclear waste. In the court's 29-page ruling, however, circuit judge Brett Kavanaugh noted that Congress had continued to appropriate funds for the statutorily mandated licence review process as recently as FY2011. Despite the availability of at least $11.1 million in appropriated funds, the NRC had failed to complete its review in the legally prescribed manner. "Indeed, by its own admission, the Commission has no current intention of complying with the law. Rather, the Commission has simply shut down its review and consideration of the Department of Energy's licence application," the ruling noted.

The court put the case on hold in August 2012, pending the outcome of appropriations for fiscal 2013, and to allow time for the US Congress to "clarify" the situation in the light of "strenuous claims" from the NRC that Congress did not want the licensing process to continue. "Since we issued that order … the Commission has not acted, and Congress has not altered the legal landscape. As things stand, therefore, the Commission is simply flouting the law," the court noted as it granted the petition for mandamus.

The move was greeted by US nuclear industry bodies the Nuclear Energy Institute and the Nuclear Waste Strategy Coalition as a clear signal about the NRC's obligation to review the Yucca Mountain licence application. "The nuclear energy industry fully expects the NRC to take all necessary steps to immediately resume its independent scientific evaluation of the Yucca Mountain licence application, as directed by the court," the two bodies said in a joint statement.

Noting that consumers of nuclear-generated electricity have already contributed nearly $35 billion in fees and interest to federal coffers specifically for the management of used nuclear fuel, the joint statement went on to encourage Congress to provide appropriate funding to facilitate completion of the review. "Consumers … deserve to know whether Yucca Mountain is a safe site for the permanent disposal of nuclear fuel," they said.

US nuclear waste policy centres on the establishment of a final geological repository for used fuel. Yucca Mountain, in Nevada, was formally approved as the site for that repository in 2002. However, with no repository available, the storage of used fuel is an increasingly significant consideration for the country's current - and future - nuclear power plants. The NRC is currently in the process of redrafting its Waste Confidence Rule, which states that the commission is confident about the future availability of a repository, after the exisiting rule was declared invalid by the US courts. Without a Waste Confidence Rule in place, the NRC is unable to approve construction and operating licences for new nuclear power plants. The NRC recently issued a draft Waste Confidence Generic Environmental Impact Statement for public comment as part of the ongoing process.

Researched and written
by World Nuclear News