Nuclear Regulation Commission allows Yucca closure to continue

WASHINGTON -- A divided Nuclear Regulatory Commission on Friday allowed the Obama administration to continue with plans to close the Yucca Mountain, Nev., nuclear waste repository, where Hanford waste was planned to be sent.

The commission split, 2-2, on whether to uphold or reject a decision by an independent nuclear licensing board. The board voted last year to block the Department of Energy from withdrawing its application for Yucca Mountain. The licensing board said the government failed to make a scientific case for why the application should be withdrawn.

Despite the split vote, the NRC said in an order Friday that the licensing board should continue steps to close out work on Yucca Mountain by the end of the month, citing "budgetary limitations."

"I am very disappointed that the Nuclear Regulatory Commission has chosen to continue down this misguided path toward shutting down Yucca Mountain, and I am especially angry that they chose to take action (Friday) in this manner," said Sen. Patty Murray, D-Wash., in a statement.

The action leaves communities such as the Tri-Cities in limbo, she said.

It's another example of NRC Chairman Gregory Jaczko trying to circumvent the law and Congress to illegally shut down the Yucca Mountain program, said Rep. Doc Hastings, R-Wash., in a statement.

"It is time for these games to be stopped and allow the Yucca Mountain project to move forward," he said. "This poses a real risk to Washington state and it is clearly time that this returns to federal court."

Hanford had planned to send its high level radioactive waste to Yucca Mountain after it is turned into a stable glass form at the Hanford vitrification plant.

Hanford also has used nuclear fuel planned to go to Yucca Mountain. The waste and fuel is left from the past production of plutonium at Hanford for the nation's nuclear weapons program.

"It's almost like there is no decision," said Gary Petersen, one of three Tri-City business leaders who have filed a lawsuit in federal court. They have asked the court to instruct the NRC to complete a technical report considering whether Yucca Mountain is feasible.

Washington and South Carolina also have filed suit. A federal appeals court ruled in July that it would not intervene in the case because the NRC had not made a decision on the status of Yucca Mountain, prompting new filings.

The Energy Department has not requested additional funding for Yucca Mountain, and NRC spending on Yucca expires at the end of the month. The House's budget for DOE includes $45 million in the fiscal year that starts Oct. 1, which would pay for the technical report, but the U.S. Senate also would have to agree to the spending.

Two top leaders of the House Energy and Commerce Committee said in a statement Friday that the NRC's action "means the Yucca Mountain license application remains alive."

GOP Reps. Fred Upton of Michigan and John Shimkus of Illinois said the tie vote means the June 2010 decision by the independent Atomic Safety Licensing Board is not overturned and the DOE's motion to withdraw the Yucca Mountain application is not granted. Upton chairs the Energy and Commerce panel, while Shimkus heads an environment subcommittee.

NRC Commissioner William Ostendorff agreed with Upton and Shimkus. Ostendorff, a Republican, supports using Yucca Mountain for storage of nuclear waste and has clashed with Jaczko over the NRC's handling of the issue.

"In my discussions with senior NRC attorneys, a 2-2 split is legally unambiguous" and leaves the licensing board's decision intact, Ostendorff said in an email.

Ostendorff said the NRC order "acknowledges the current fiscal realities" and directs the licensing board to take steps to close out its review of the project.

Jaczko last year ordered NRC staff to halt work on the Yucca project. He is a former aide to Senate Majority Leader Harry Reid of Nevada, Yucca Mountain's leading congressional opponent, and has made a series of decisions to delay or halt work on the Nevada dump since becoming chairman in 2009.

His actions have infuriated congressional Republicans, who accuse Jaczko of carrying out the wishes of Reid and President Obama, who appointed Jaczko as NRC chairman and promised in the 2008 campaign to kill the Yucca Mountain project.

Congress chose Yucca Mountain as the leading candidate for disposal of used fuel from commercial nuclear reactors and high level radioactive defense waste. But Nevada has opposed the choice, and the Obama administration has said it would not consider the site and would look for alternatives.

Jaczko's actions on Yucca Mountain also have been criticized by his own scientific staff and by the NRC's inspector general.

The IG report found that Jaczko acted within his authority and broke no laws.

But it also concluded that to get his way on the issue he failed to be forthcoming with other commissioners.

Jaczko declined to comment Friday, and a spokesman for the NRC declined to reveal how individual commissioners voted.

However it is widely believed that Jaczko and fellow Democrat William Magwood voted to overturn the licensing board decision, while Ostendorff and fellow Republican Kristine Svinicki voted to uphold it. Ostendorff confirmed Friday that he voted to uphold the licensing board.

Commissioner George Apostolakis, a Democrat, recused himself from the vote because he has worked on Yucca-related issues in the past.