Closing Yucca Mountain: Litigation Associated with Attempts to Abandon the Planned Nuclear Waste Repository

Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation’s most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level<br>waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based multi-stage statutory process for selecting the eventual site of the nation’s new permanent geologic repository. Congress amended the NWPA’s site selection process in 1987, however, and designated Yucca Mountain, Nevada, as the sole candidate site for the repository by terminating site specific activities at all other candidate sites.<br><br>The Obama Administration, in conjunction with DOE, has taken three important steps directed toward terminating the Yucca Mountain project. First, the Administration’s FY2011 budget proposal eliminated all funding for the Yucca Mountain project. Second, the President and Secretary of Energy Steven Chu established a Blue Ribbon Commission to consider alternative solutions to the nation’s nuclear waste challenge. Third, and most controversial, DOE has attempted to terminate the Nuclear Regulatory Commission’s (NRC’s) Yucca Mountain licensing proceeding by seeking to withdraw the license application for the Yucca Mountain facility. <br><br>DOE’s withdrawal motion triggered strong opposition from a number of concerned parties. The states of Washington and South Carolina—each awaiting cleanup and removal of defense-related nuclear waste at the Hanford and Savannah River Sites, respectively—have led the legal challenge against the license withdrawal. Claims challenging the Secretary’s authority to withdraw the Yucca Mountain license application are currently proceeding before the NRC and the U.S. Court of Appeals for the District of Columbia (D.C. Circuit).<br><br>Controversy over the Yucca Mountain license application intensified in October 2010, when NRC Chairman Gregory Jaczko directed NRC staff to use funds appropriated under the FY2011 continuing resolution to close down the agency’s review of the Yucca Mountain license application. <br><br>While the result of the ongoing dispute over the legality of the attempted termination of the Yucca Mountain program remains uncertain, the change of control in the House of Representatives could have a significant impact on the fate of the Yucca Mountain facility. A number of leading House Republicans have voiced strong opposition to shutting down the Yucca Mountain facility. Consequently, the Yucca Mountain dispute may not only be played out before the NRC and the D.C. Circuit, but also in the House of Representatives, in the form of appropriations disputes and oversight hearings.