The state of Nevada on Wednesday asked a federal appeals court to block Nuclear Regulatory Commission member David Wright from participating in any licensing decision for the planned Yucca Mountain nuclear waste repository in the state.
The filing in the U.S. Court of Appeals for the District of Columbia Circuit comes nearly two months after Wright dismissed the state’s direct request for recusal, in which he rejected the contention that he is unfairly biased in favor of licensing the long-planned underground disposal facility.
“Nevada requests that the court (1) declare that Commissioner Wright’s recusal decision was arbitrary and capricious, and abuse of discretion, contrary to Constitutional right, and otherwise unlawful; (2) set aside Commissioner Wright’s recusal decision; (3) require that Commissioner Wright recuse himself from the Yucca Mountain proceeding; and (4) grant such other and further relief as may be appropriate,” attorneys for Nevada wrote in the petition for review.
For now, at least, the Yucca proceeding is almost entirely moribund as Congress has yet to provide the additional funds needed for the Department of Energy to revive its license application or for the NRC to adjudicate the matter.
Wright has only been a commissioner since May 30, after being confirmed by the U.S. Senate following a lengthy nomination process. It is his background that worries the Nevada state government as it tries to head off any possibility that tens of thousands of metric tons of spent nuclear reactor fuel and high-level defense waste might be buried in Nye County, roughly 100 miles northwest of Las Vegas.
An energy consultant by profession, Wright was a member of the South Carolina Public Service Commission for nearly a decade ending in 2013, including a stint as chairman. He was also president of the National Association of Regulatory Utility Commissioners (NARUC) from 2011 to 2012. In those roles he demonstrated clear support for the Yucca Mountain repository, according to Nevada’s recusal request in June.
The 89-page request encompassed eight documents that state officials believe illustrate Wright’s pro-Yucca bias, including: a 2010 NARUC petition, submitted by Wright, urging the Obama administration Department of Energy not to withdraw its license application for the site from the NRC; and Wright’s announcement of formation of a Yucca Mountain Task Force “to accomplish the construction and operation of a safe Federal facility for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.” In that announcement, Wright also cited the Nevada’s “myopic resistance” to Yucca Mountain, the state said in a press release Wednesday.
“If he doesn’t recuse himself he’s creating an inevitable challenge down the road in which Nevada will petition the D.C. Circuit to invalidate every decision he has made on Yucca Mountain,” Robert Halstead, executive director of the state Agency for Nuclear Projects, said in a telephone interview Thursday.
Nevada will continue to pressure Wright by other means to withdraw from Yucca proceedings, Halstead added, though he declined to discuss specifics.
An NRC spokesman said Thursday the agency does not comment on pending litigation.
In his July 2 decision against recusal, Wright said his prior statements emphasized the need to resolve the decades-long impasse on disposal of U.S. nuclear waste rather than specific support for Yucca Mountain. “In short, I have not prejudged the technical, legal, or policy issues of the licensing proceeding,” he wrote at the time.
Nevada is the sole petitioner in the filing with the D.C. Circuit, with Wright, the Nuclear Regulatory Commission, and the United States of America listed as respondents. As of Friday, the court had only set deadlines in October for submission of documents by the parties.
A three-judge panel of the appeals court will now determine the next step in the state petition, according to Halstead. That could be immediate dismissal – which Halstead said he believes is unlikely – scheduling a hearing or making some determination based on the filings from the parties.
“Sometimes they do these things quickly and sometimes they take their sweet time and maybe we hear from them by the end of the year,” Halstead said.
The Nuclear Regulatory Commission, which returned to its full five-person membership in May, would have final say on the waste disposal license application.
Congress designated Yucca Mountain as the sole site for permanent disposal of spent fuel and high-level waste in its 1987 amendment to the 1982 Nuclear Waste Policy Act. The George W. Bush administration finally filed the license application in 2008, but its successor halted proceedings just two years later. The Obama administration tried to begin a “consent-based” approach for nuclear waste disposal, but the Trump administration has returned to Yucca Mountain.
However, the administration has failed to persuade Congress to appropriate money for licensing. While the House has backed funding requests from DOE and the NRC in budgets for the current fiscal 2018 and upcoming fiscal 2019, the Senate has zeroed out any and all money for Yucca Mountain. The two chambers have yet to negotiate a compromise appropriations bill covering the two agencies for fiscal 2019, which begins on Oct. 1.
Nevada officials have said they fear the effort could ramp up following the November midterm election, possibly with a stopgap budget that pours money into licensing. They say they are taking steps for such an eventuality, including preparing additional technical contentions to be submitted to the NRC should the adjudication resume.
Halstead’s agency and the Nevada Attorney General’s Office are also requesting an additional $1 million for the July 2019 to June 2021 budget period for anti-Yucca efforts, Halstead said. That would raise their shared funding for this work from $3.6 million to $4.1 million each year, largely to pay additional legal and expert services.
