The Nuclear Regulatory Commission must resume work on a license application for a national nuclear repository at Yucca Mountain, Nev., if no one files to suspend the court's order by today, said attorney Barry Hartman.
On Aug. 13 the U.S. Court of Appeals issued a 2-1 decision, saying the Obama administration needed to respect the constitutional separation of powers and resume work on a Department of Energy licensing application for the proposed repository.
Three Tri-City business leaders -- Bob Ferguson, Bill Lampson and Gary Petersen -- who were among those filing suit, were represented by K&L Gates partners Hartman and Tim Peckinpaugh.
The three business leaders took the initial step toward what would become a consolidated lawsuit that would include the states of Washington and South Carolina with a letter sent in February 2010.
The letter to President Obama argued that his directions to abandon the plan to build a permanent repository at Yucca Mountain for Hanford and other waste violated the Nuclear Waste Policy Act created by Congress.
Opponents of opening a repository for used commercial nuclear power and defense waste have argued that the ruling will make no difference in the future of Yucca Mountain, because the court cannot compel Congress to provide money to allow the project to be completed.
The NRC has so little money for the project that the court order "amounts to little more than ordering the commission to spend part of those funds unpacking its boxes and the remainder packing them up again," said Chief Judge Merrick Garland in a dissenting opinion.
But Hartman believes the ruling could have a practical impact.
DOE has $17 million and the NRC has $11 million, which is not enough to complete the licensing project. But it is enough to issue the safety evaluation reports for the licensing process, Hartman said.
"Those are key to whether the site is safe to construct and operate," he said.
Opposing attorneys said in court that the NRC had enough money to do that, he said.
The NRC had been preparing the data for that, but instead of releasing the safety evaluation reports, the former chairman released technical evaluation reports with discussion but no conclusions, Hartman said.
If the safety evaluation reports are completed and conclude the site is safe, it will be very difficult for an argument to be made for the nation to start again from scratch to create a national repository, he said. About $15 billion had been spent before the Obama administration moved to end work at the repository.
Litigation still would be likely over the conclusions, but the matter then would proceed to an NRC decision and then would go back to Congress for a final decision, Hartman said.
After the Obama administration moved to stop the licensing process for Yucca Mountain, the administration created a Blue Ribbon Commission on America's Nuclear Future to consider options for disposing of high-level radioactive weapons waste and used commercial and weapons nuclear fuel. It proposed that a temporary and then a national repository be created in states and communities that volunteer. Under the new plan, a permanent national repository could open in 2048.
In the meantime, about 9,700 canisters of glassified waste to be processed at the Hanford vitrification plant and about 2,347 tons of irradiated Hanford fuel, never processed to remove weapons plutonium, likely would remain at Hanford for at least 35 more years.
Opponents of creating a national repository at Yucca Mountain have legal options beyond filing by today for a stay, or suspension, of the Court of Appeals ruling, such as asking for a rehearing by all eight judges rather than a panel of three judges. But the remaining legal options available do not call an automatic halt to the order taking effect, Hartman said.
In another development in the case, supporters of finishing the licensing process for Yucca Mountain have filed a motion asking for NRC Commissioner Allison Macfarlane to recuse herself and be disqualified from licensing procedures. A motion was filed by Nye County, Nev., home to Yucca Mountain, Aug. 23. South Carolina and the National Association of Regulatory Commissioners concurred with the motion.
The motion questions Macfarlane's impartiality. She was picked to complete the term of previous Chairman Gregory Jaczko and made chairman last summer and this summer was confirmed for a full five-year term.
She is the lead author of the 2006 book Uncertain Underground: Yucca Mountain and the Nation's High Level Nuclear Waste. In it, she found fault with the safety modeling and other methods for assessing safety that DOE was required by law to use in developing the license application, according to the court document.
"Many believe that she, like her predecessor, was chosen to chair the NRC precisely because she supports DOE's attempt to withdraw the Yucca Mountain license application, opposes DOE's technical and policy approaches to Yucca Mountain that it expressed in its filed application and supports the administration's efforts to develop an entirely new approach to nuclear waste disposal," the court document said.
w Annette Cary: 582-1533; firstname.lastname@example.org; Twitter: @HanfordNews