The state of Nevada has jumped the gun in seeking to force a member of the Nuclear Regulatory Commission to recuse himself from any ruling over the planned Yucca Mountain nuclear waste repository, so its petition in federal court should be dismissed, the NRC argued this week.
Case law has shown that a recusal request should come after ‘final agency action,” the NRC said in its response Monday to the Nevada case in the U.S. Court of Appeals for the District of Columbia Circuit. In this case that action would be a ruling by the commission on the Department of Energy license application for the underground facility in Nye County, Nev. – which at best is years away and might never happen.
The Nevada state government, along with its congressional delegation, has long opposed efforts to ship in nuclear waste from other states. Nevada in August filed the petition in the D.C. Circuit after Commissioner David Wright refused to voluntarily step aside from potential NRC consideration of the license application for the repository for spent nuclear reactor fuel and high-level radioactive waste.
The state argued that Wright’s comments and actions prior to joining the commission in May proved he was biased in favor of licensing the site. It pointed directly to his leadership positions in much of this century at the South Carolina Public Service Commission and the National Association of Regulatory Utility Commissioners (NARUC). During that time he wrote a 2010 NARUC petition calling on the Obama administration DOE to rethink its plan to suspend its license application for Yucca Mountain. Wright also helped establish a 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,” the state said.
In rejecting the recusal request, the former energy consultant said he was biased only in favor of permanent disposal of nuclear waste, rather than any specific location. Nevada asked the D.C. Circuit to find that response to be “arbitrary and capricious … and otherwise unlawful,” to set aside his decision, and to require recusal.
In a 25-page response Monday, NRC Solicitor Andrew Averbach said Nevada’s petition largely corresponds to Nye County’s effort starting in 2013 to have then-commission Chairman Allison Macfarlane recuse herself from the Yucca Mountain adjudication. That case also ended up before the D.C. Circuit., which dismissed the county’s petition in February 2014.
“This Court ploughed the same ground in 2014 in Nye County v. NRC. As in Nye County, the petitioner (here, the State of Nevada) asks this Court to overturn a Commissioner’s recusal decision on the basis of the Commissioner’s prior statements related to the proposed repository,” Averbach wrote. “As in Nye County, Nevada’s arguments are before the Court on a petition for review under the Nuclear Waste Policy Act (NWPA). As in Nye County, the licensing proceeding is not complete. And as in Nye County, the petition for review warrants dismissal because ‘[t]he challenged order is neither final nor ripe for review.’”
Among its arguments, the NRC said the Nevada petition does not meet the criteria for a waiver to the federal government’s sovereign immunity against being sued. “In this case, no waiver exists because Commissioner Wright’s decision not to recuse himself is neither ‘final’ nor a decision ‘of the Commission,’ as expressly required by” federal regulations for judicial review of agency actions.
The D.C. Circuit has regularly directed that challenges to a recusal denial follow final action by an agency in the proceeding at hand, the response says. That will be either approval or denial of the license to build the repository, according to Averbach.
The state could win its battle against Yucca Mountain before that happens, he noted.
The George W. Bush administration Department of Energy filed the license application in 2008, 21 years after Congress designated Yucca Mountain as the site for disposal of the nation’s nuclear waste. The proceeding was suspended two years later as the Obama administration sought another avenue for waste disposal.
Before then, Nevada filed about 200 technical contentions against the license application and opposed the project in adjudicatory hearings before the NRC’s Atomic Safety and Licensing Board. That body would rule on the application before any decision by the commission.
“Nevada has challenged the license application and may ultimately prevail in the proceeding, eliminating the need for subsequent review,” Averbach wrote.
It remains to be seen whether the license adjudication actually begins again. In its fiscal 2018 and 2019 budget proposals, the Trump administration requested funding for DOE and the NRC to revive the process, but was shot down each time by Congress. There has been no official word on whether it will try again during the fiscal 2020 budget cycle starting in February.
The Nevada Attorney General’s Office did not respond by deadline to requests for comment on the NRC filing.
