Complying with an order from the U.S. Court of Appeals for the D.C. Circuit (Aiken County, et al., Petition for Writ of Mandamu), the Nuclear Regulatory Commission (NRC) directed NRC staff to resume its review of the Department of Energy’s (DOE) application to construct a nuclear waste repository at Yucca Mountain, Nevada.
The review will be limited to completion of the safety evaluation report (SER) associated with the application. The NRC says it will not be able to undertake subsequent steps in the standard licensing review because funds designated by Congress for the review will be expended, and no new funds have been appropriated.
One-tenth of needed funds
This odd situation began in 2010 when the states of Washington and South Carolina petitioned the U.S. Court of Appeals to order the NRC to continue processing NRC’s application. The NRC argued that it suspended the review because the $11.1 million it had available is about one-tenth of what is needed to finish the work.
Initially, the D.C. Circuit refrained from issuing an order to the NRC, stating that it would give Congress time to clarify the issue. However, the Congress has not done so, and the D.C. Circuit ordered the NRC to “promptly continue with the legally mandated licensing process” for the Yucca Mountain application until there are no appropriated funds remaining.
Broad discretion
In its directions to staff, the NRC notes that the D.C. Circuit did not prescribe any particular task or sequence of tasks the NRC should undertake. Also, says the NRC, the court recognized that the agency currently has limited funding to continue the licensing process and did not require or permit the NRC to expend funds beyond the agency’s existing Nuclear Waste Fund appropriation.
“The court’s order therefore afforded us broad discretion in choosing a pragmatic course of action to resume the licensing process,” says the NRC. That course of action involves an “incremental approach,” says the NRC, since the agency cannot engage in all of the licensing activities that it would undertake if fully funded. For example, the NRC states that it cannot at this time complete a formal hearing requiring disposition of nearly 300 contentions.
Agreement on SER
Also, following receipt of the court’s order, the NRC sought comment from the participants in the legal action as to how the agency should continue with the licensing process. The NRC reported that all participants supported completion of the SER.
The NRC notes that completion of the SER will serve multiple purposes—the staff’s regulatory conclusions will be preserved and made publicly available and could facilitate future resolution of contested hearing issues if additional appropriations are provided and this licensing matter continues.
DOE’s EIS
The NRC is also requesting that the DOE complete a supplement to the environmental impact statement (EIS) prepared by the DOE in 2002 and 2008 for consideration and potential adoption by the staff. The NRC previously found that these EISs did not adequately address the environmental impacts on groundwater associated with the proposed Yucca Mountain repository.
“We find that completion of the EIS supplement is a well-defined, discrete task that would advance the licensing process and that may be accomplished with available funds,” says the NRC. “Before an evidentiary hearing in this proceeding could occur, the environmental review must be completed and completion of the EIS supplement is a key component of the environmental review.”
The NRC adds it will not resume adjudication in the case because of lack of funds.
NRC’s order to the staff
The D.C. Circuit’s order