DOE Acceptance Of States' Push To Preserve Yucca Raises Questions

800 words7 April 2010Energy Washington WeekIEPAVol. 7, No. 14
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DOE's argument that it has all necessary authority to seek to withdraw its license application for the Yucca Mountain nuclear waste repository -- and its decision not to oppose state and local governments' intervention in the administrative proceedings -- is raising questions among state utility regulators who are trying to decipher DOE's legal strategy.

DOE, in a March 29 response to the intervenors, says its motion to withdraw the Yucca Mountain license application is "consistent with all governing law," an argument that implies DOE may be seeking to have the Nuclear Regulatory Commission (NRC) treat it as a private licensee rather than a government agency that receives its authority from Congress and cannot act under its own discretion to have the license application dismissed, says a source with the National Association of Regulatory Utility Commissioners (NARUC), one of the five parties that has intervened in the NRC adjudicatory proceedings.NARUC and the other intervenors that have filed motions for NRC to reject DOE's request to withdraw its license application argue DOE does not have the authority under the Nuclear Waste Policy Act to withdraw its application. The other intervenors are Washington state, South Carolina, Aiken County, SC, and the Prairie Island Indian Community.The NARUC source says DOE's strategy is "arbitrary and capricious" if it believes it should be treated as a normal licensee and that the Nuclear Waste Policy Act should not apply. The waste act does not give DOE discretionary authority to submit and withdraw a congressionally mandated license application, says the source. The law requires DOE to submit a license application to build a waste facility, and its authority does not extend beyond that, says the source.
DOE wants NRC to approve the motion to withdraw "with prejudice," which means once the application is withdrawn it cannot be resubmitted pending congressional action.But NARUC does not believe the DOE motion meets the standard to receive a prejudice ruling from the NRC's administrative judges. That would require DOE to present new evidence on Yucca Mountain that demonstrates a fatal flaw in the repository. But DOE has not explained the reasons behind its motion, nor has it provided any scientific analysis that shows Yucca Mountain to be unsuitable to house nuclear waste.NARUC believes DOE is looking for an opportunity in the motion proceedings to demonstrate evidence, the NARUC source says. The March 29 response asks NRC to reserve DOE's right to respond further to arguments presented by the intervenors as the Atomic Safety and Licensing Board takes up the parties' challenges to DOE, according to the NARUC source. This could give DOE an opportunity to explain why it is seeking to have its license dismissed and why it requires the dismissal with prejudice, according to the source. Yet, NARUC is arguing that under an NRC procedural rule for reviewing interventions, DOE no longer has the right to answer intervenors or provide new evidence to make its case for a withdrawal with prejudice.The DOE request for withdrawal should theoretically collapse under the board's scrutiny if it cannot provide evidence to support its request, according to the source. Nevertheless, it all depends on the board and how it chooses to make its decision, according to the source, or if NRC grants DOE increased latitude to present responses to the intervenors' arguments outside the NRC rule that guides intervention procedure.
The rule, found at 10 CFR 2.323, reads: "The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply."
The NARUC source says DOE will be hardpressed to explain how it could not have reasonably anticipated the arguments against its motion when Aiken County, SC, filed its motion to intervene ahead of DOE's motion to withdraw with prejudice.
Meanwhile, NARUC is suing DOE over the department's decision to continue collecting fees from nuclear power plants for a future waste repository despite its attempt to abandon the Yucca Mountain repository.
NARUC April 2 filed suit in the U.S. Court of Appeals for the District of Columbia Circuit alleging that DOE has refused to suspend its collection of fees that utilities pay into the Nuclear Waste Fund despite its suspension of the Yucca licensing process. The group charges that DOE rejected its request to suspend the fee collection in an October 2009 letter sent by Chris Kouts, acting director of the Office of Civilian Radioactive Waste Management, in response to an earlier NARUC request to halt the fee collections.