NRC Will Likely Reject NEI Request To Redirect Yucca Review Funds

908 words/16 December 2009/Energy Washington Week/IEPA/Vol. 6, No. 50/English/
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The Nuclear Regulatory Commission (NRC) is likely to reject a nuclear industry request for the commission to use its limited fiscal year 2010 budget to expedite the NRC technical review for a permanent waste repository rather than spending money to fight Nevada's "contentions" against the proposed Yucca Mountain nuclear waste repository, according to Nevada state and congressional representatives. The request -- in a letter from Nuclear Energy Institute (NEI) President Marvin Fertel to commission Chairman Greg Jaczko -- has provoked the ire of Nevada state officials and its legal counsel, who call the request unlawful, the sources say.
While NRC is still determining how it will respond to the letter, the commission is expected to respond soon and is likely to say "no," says a commission source. The almost certain negative response to the NEI proposal is expected because Nevada legal counsel believe Fertel's request to the commission is highly questionable, according to sources.
Commission sources say the NRC has received a detailed legal analysis of the request from Nevada's lawyers and are seriously considering the state's recommendations.
NRC is at a crucial stage in reviewing the DOE Yucca Mountain application, according to industry and commission sources. Commission funding to conduct the review of DOE's application has been slashed again with the FY2010 energy and water budget President Obama signed into law Oct. 28, forcing NRC for a second time to reevaluate its schedule for continuing the legally mandated application review, say commission sources. NEI used the NRC's tight budget as a rationale for recommending a course of action that in the industry's view would make the best use of NRC's limited funds -- namely, ending all activities related to construction of the Yucca facility and thereby making Nevada's contentions against building the repository moot. As an alternative, NEI says NRC should focus solely on the technical review, according to the Fertel letter and NEI sources.
Fertel argues that by directing the commission's limited budget solely to completing the technical review for Yucca Mountain it would benefit future waste repositories now that the Obama administration has decided to terminate the Yucca program, according to the letter.
". . . [B]y focusing resources exclusively on its technical review, the Commission will most efficiently serve the goal of learning as much as possible regarding radioactive waste disposal from the Yucca Mountain review process while it is ongoing. Finally, this approach may help to better define the issues to be considered in any future adjudicatory proceedings."
Legal counsel for Nevada say a key basis for NEI's argument to divert commission resources toward the technical review is a DOE memo that the department refuses to discuss and that is not part of any official government record. The memo, which first surfaced Nov. 9 in news reports, discussed DOE this month ending all activities related to defending Yucca Mountain. The memo caused many to believe that the administration soon would be withdrawing its Yucca application from DOE.
The idea of using an unofficial memo to steer NRC in a direction that the Nevada congressional delegation, state officials, and legal counsel believe is essentially illegal has stoked their anger, sources explain.
A letter obtained by EnergyWashington that was sent to Jazcko Nov. 16 by the law firm Egan, Fitzpatrick, Malsch & Lawrence, representing Nevada in its case against the federal government, characterizes the use of the memo as part of a "thinly disguised motion" to "abrogate the entire regulatory scheme for the licensing proceeding." The letter, by Martin G. Malsch, argues that the NEI proposal "suffers from numerous defects that should preclude the Commission from giving it any consideration."
Any action taken by NRC under the NEI motion would be considered illegal under the Nuclear Waste Policy Act (NWPA), according to Malsch's letter, which also states that NEI is advising the wrong party in sending a letter directly to the commission. NEI well knows that it is the NRC Construction Advisory Board (CAB) that must make a determination on whether to proceed in examining evidence related to Nevada's contentions for not building the facility, according to the letter.
"NEI is represented in the proceeding by experienced legal counsel, and therefore, it should know better," says Malsch's letter. "It would be unimaginable that the Commission would decide to ignore its CAB and its rules and give NEI favored treatment by proceeding to consider the merits of NEI's request."
"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 on any of their admitted safety and environmental contentions (which number in excess of 300)."
An NEI spokesman says Nevada's legal team and Malsch have misinterpreted the intended spirit of Fertel's letter. The leaked Nov. 9 memo and the Oct. 28 budget are good indications that the Yucca program will soon come to a close, says the spokesman. Based on these indications, industry would like to see something salvaged from the program and that, at a very minimum, there should be a completed NRC technical review that would have beneficial future uses, the spokesman says. The spokesman says NEI expects a response from NRC as soon as this week.