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Monday, Nov. 16, 2009 | 6:06 p.m.
Sun coverage
The nuclear industry's lobbying arm has suggested that work continue on a license request from the Energy Department to build a nuclear repository at Yucca Mountain, even though President Barack Obama has signaled an end to it.
Marvin S. Fertel, president of the Nuclear Energy Institute, wrote to Gregory B. Jaczko, chairman of the Nuclear Regulatory Commission, that the NRC could focus on a technical review of the Energy Department's Yucca Mountain construction permit.
Nevada's Agency for Nuclear Projects responded with a letter to Jaczko today saying that if the Nuclear Energy Institute's approach is accepted, it would shut out any participation by Nevada, native American tribes and other parties opposing the repository.
"Indeed, if acted upon, NEI's proposal would be an appalling denial of due process of law and would permit DOE and NRC staff to proceed to resolve technical issues related to Yucca Mountain without any meaningful participation by any adverse party," wrote Martin Malsch, one of Nevada's attorneys.
Bruce Breslow, director of Nevada's Agency for Nuclear Projects, said the state has 221 legal and scientific arguments that have been accepted by the NRC's Construction Authorization Board.
The Obama administration signaled that it intends to stop pursuing a license for a Yucca Mountain nuclear waste repository this year, as Energy Daily reported. "All license defense activities will be terminated in December 2009," a draft Program Decision Memorandum said on Oct. 23.
The Energy Department has not confirmed whether it will ask the Nuclear Regulatory Commission to withdraw the Yucca Mountain license application.
However, the president and Energy Secretary Steven Chu have said that Yucca Mountain is not an option as the nation's nuclear waste repository. Chu is putting together a committee to look at alternatives to burying 77,000 tons of highly radioactive waste from nuclear reactors and Defense Department activities at Yucca Mountain.
The writer of this article states, "The Energy Department has not confirmed whether it will ask the Nuclear Regulatory Commission to withdraw the Yucca Mountain license application."
The DOE has the authority to withdraw the license application. They do not "ask" the NRC to withdraw it.
Please get your facts straight.
@Pete:
Your own presentation of the "facts" might not be exactly "straight." Consult 10 CFR 2.107, which is the NRC's rule for withdrawal of a license application.
In fact, because a license application has been submitted by DOE and docketed by NRC, and because a notice of hearing has been published in the Federal Register, DOE would in effect need to "ask" the NRC for permission to withdraw the application.
More precisely, DOE would file a motion seeking withdrawal of the application, and the NRC's panel of judges presiding over the licensing proceeding (the so-called ASLB) would render a decision on the motion. NRC precedent and the regulations themselves seem to suggest that the motion would be granted in most cases; the only determination would involve whether the proceeding is dismissed with or without prejudice, and, in a related light, whether or not any of the parties to the proceeding would suffer a demonstrable legal harm as a result of the application being withdrawn.
(And incidentally, one of the parties, the Nuclear Energy Institute, which represents the nuclear power industry, would most certainly argue that they are suffering a demonstrable legal harm if DOE pulls the license application and effectively abandons its contractual obligation to build a repository and take possession of the nuclear utilities' spent nuclear fuel, per the terms of the Nuclear Waste Policy Act).
Bear in mind also, however, that 10 CFR 2.107, and the NRC guidelines involving license applications generally, pertain primarily to the licensing of nuclear power plants, as opposed to a one-of-a-kind nuclear waste repository.
As already suggested, unlike a nuclear power plant, the construction of a national repository at Yucca Mountain is MANDATED BY LAW - the Nuclear Waste Policy Act.
Given that both the DOE and NRC are directed by this law to perform certain actions (DOE to submit a license application for a repository at Yucca Mountain, and NRC to review that application and either grant or deny a construction authorization), the jury is still out on whether DOE or NRC indeed has the authority to disobey the law as it currently exists.