Just before becoming the 15th U.S. secretary of energy this month, Dan Brouillette skirted a Nevada senator’s questions regarding his position on requiring consent from states and local and tribal communities in selecting the site for disposal of nuclear waste.
The issue of consent is of keen interest to Nevada’s state leadership and congressional delegation, which for decades have been fighting the federal government’s efforts to build a nuclear waste repository under Yucca Mountain, about 100 miles from Las Vegas.
Sen. Catherine Cortez Masto (D) submitted three questions related to consent-based siting to Brouillette as part of a longer list of written queries from lawmakers following his Nov. 14 nomination hearing before the Senate Energy and Natural Resources Committee. RadWaste Monitor subsequently obtained a copy of the questions for the record document.
In one of her questions to Brouillette, at the time the deputy energy secretary, Cortez Masto asked: “Do you support ensuring states, local governments, and tribal communities have the right to consent when determining a site for a nuclear waste repository or other nuclear waste storage site?”
Brouillette answered: “As I stated during my previous confirmation hearing for Deputy Secretary of Energy, it is important that States, tribes and communities have a voice in the siting of nuclear facilities.”
The senator followed that up by asking Brouillette whether he supports consent-based siting in determining the location of nuclear waste storage. Brouillette submitted the same response. He did so a third time for Cortez Masto’s question on whether he would support efforts by Nevada’s senators to add language to a nuclear waste management bill from Sen. Lisa Murkowski (R-Alaska) to ensure the state is included in any consent-based siting plan.
Cortez Masto’s office did not respond to a query regarding Brouillette’s responses to her questions.
The Energy and Natural Resources Committee voted to advance the nomination on Nov. 20, and the full Senate voted 70-15 to confirm Brouillette on Dec. 2. He was officially sworn into office last week, followed by a ceremonial swearing-in Wednesday.
Cortez Masto and fellow Nevada Sen. Jacky Rosen (D) both voted against confirmation.
The 1982 Nuclear Waste Policy Act made the Energy Department responsible for permanent disposal of U.S. high-level radioactive waste from defense nuclear operations and spent fuel from commercial nuclear power reactors. Congress amended the law in 1987 to direct that the geologic repository be built at Yucca Mountain.
The Energy Department submitted its license application to the Nuclear Regulatory Commission in 2008, during the George W. Bush administration, but the Obama administration defunded the proceeding two years later. The Obama DOE eventually took guidance from the 2012 report issued by its Blue Ribbon Commission on America’s Nuclear Future and established an approach for separate siting of defense and commercial waste that required assent from impacted local and state communities.
Brouillette said he had been briefed on the Blue Ribbon Commission report, but did not offer an opinion on its findings.
Consent-based siting has its critics, who question who would get to decide and who would be left out, and noted that approval from the members of one political body could be withdrawn by their successors.
In any case, the DOE program barely got off the ground before President Donald Trump took office in January 2017 and refocused the federal government on Yucca Mountain. The Energy Department still has a web page for consent-based siting, but for years it has said only “Thank you for your interest in this topic. We are currently updating our website to reflect the Department’s priorities under the leadership of President Trump and Secretary Perry.” Perry resigned as energy secretary on Dec. 1.
The Trump administration has in three successive budget requests sought funding to resume licensing for Yucca Mountain, but has been rebuffed each time by Congress.
Most recently, the House on Wednesday approved the compromise fiscal 2020 National Defense Authorization Act that blanked the administration’s request for approval to spend $26 million on defense nuclear waste disposal. That is in line with both chambers’ stance in their respective NDAAs on the funding, which would have been used for licensing the Yucca Mountain repository. The Senate is expected to vote next week on the defense policy bill, and Trump has said he will sign it.
Congress has yet to approve a final version of the fiscal 2020 energy and water appropriations bill that would fund the Energy Department, Nuclear Regulatory Commission, and other agencies through Sept. 30. However, lawmakers appear to be in the end stages of negotiations, according to news reports late this week.
The House and Senate iterations of the energy-funding legislation eliminate the administration’s request for about $116 million for licensing at DOE and the NRC. They instead favor funding for consolidated interim storage of spent fuel as a means of expediting the Energy Department’s mandate to remove that radioactive material from the nation’s nuclear power plants.
As she did during the hearing, Cortez Masto asked Brouillette in her follow-up questions whether he would support the administration’s efforts to revive Yucca Mountain. Brouillette’ s answer was the same as the one he gave to the Energy and Natural Resources Committee: “I am obligated to follow the law as directed by Congress to complete the Yucca Mountain licensing process, subject to appropriations.”
This suggests DOE under Brouillette will early next year again request funding for licensing for the fiscal 2021 budget year, but that he recognizes the likely outcome of that request on Capitol Hill.
Brouillette served more than two years as deputy energy secretary before being promoted to the top job. Before that, he spent more than a decade as an executive at Ford Motor Co. and the United Services Automobile Association. That followed a stint in government in the early 2000s, both at the Department of Energy and as a staffer on Capitol Hill.
Nevada Ready to Rumble, Legally
Meanwhile, the Nevada Board of Examiners on Tuesday approved a $5.1 million, two-year renewal to its contract with a law firm for counsel in its fight against Yucca Mountain.
The contract amendment would keep Egan, Fitzpatrick, Malsch, and Lawrence on the job through Feb. 28, 2022, with a maximum payment of $10.2 million.
“This is the first amendment to the original contract which continues outside counsel to assist with Yucca Mountain litigation and for representation of the state before the U.S. Nuclear Regulatory Commission on related issues,” according to the contract description of the agenda for the Board of Examiners’ meeting.
The money is provided through the Nevada Attorney General’s Office’s special litigation fund.
The law firm, with offices in Washington, D.C., and Austin, Texas, specializes in litigation and other legal work involving agencies including the Department of Energy and Nuclear Regulatory Commission. It has the “high-level nuclear expertise” needed to represent the state on those issues, according to the justification for the budget amendment.
Leaders in Nevada have for decades disputed the federal determination that the Yucca Mountain property is a safe and secure location to deposit the nation’s nuclear waste. The state government says concerns about geology and hydrology have not been settled, and notes the site’s relative proximity to its economic powerhouse of Las Vegas.
Nevada filed more than 200 contentions against the Energy Department license application at the Nuclear Regulatory Commission, with Egan, Fitzpatrick, Malsch, and Lawrence as its counsel. The state has pledged to file more should the proceeding resume.
Among other nuclear-related work in recent years, the law firm filed the state’s 2018 federal court petition seeking to force NRC Commissioner David Wright to recuse himself from any decision on the Yucca Mountain license. The U.S. Court of Appeals for the District of Columbia Circuit dismissed the petition late last year, saying Wright might never make a decision on the application.
