The chairman of a House Energy and Commerce subcommittee is challenging whether the Nuclear Regulatory Commission had the legal authority to suspend a safety review of Yucca Mountain in Nevada as a permanent spent nuclear fuel repository.

Rep. John Shimkus (R-Ill.) warned NRC Chairman Gregory Jaczko during a budgetary hearing Wednesday that "you better be double checking your facts" on whether the move was legal.

Shimkus, who heads the Environment and the Economy subpanel, said it is "a stated federal position by law that Yucca Mountain should be open, that's the legal authority; there's no legal authority to close Yucca Mountain."

The repository has gained increasing attention in past days as lawmakers and regulators scrutinize the safety of on-site storage of spent fuel at utilities across the nation. Jaczko yesterday said spent fuel pools at the Japanese Fukushima Daiichi nuclear plant could be without water, creating a dangerous situation for spent fuel rods that could ignite and emit radioactive elements.

Democrats are pushing for the permanent closure of the site. Rep. Shelley Berkley (D) of Nevada said yesterday that in light of the nuclear crisis in Japan, it is hard to believe anyone would argue that "it's a good idea to unleash decades of nuclear waste shipments on communities across the U.S. incapable of dealing with the death and environmental destruction that a disaster involving this radioactive garbage is capable of inflicting."

After the Obama administration decided to stop support for the project, the Department of Energy last year submitted a filing with NRC to pull its application to develop the site in Nevada.

But NRC's Atomic Safety and Licensing Board ruled that DOE could not pull its application to construct a permanent nuclear waste repository in Yucca Mountain. The board said that unless Congress directed otherwise, DOE could not "single-handedly" derail the legislative process and questioned whether the department acted because the site was unsafe or simply because it was a "matter of policy" (E&ENews PM, June 29, 2010).

DOE appealed the board's decision to the five-member NRC. Jaczko said at Wednesday's hearing that the commission has not yet come to a final determination on whether it will let the board's decision stand.

But Jaczko last October ordered a closeout of a staff review of DOE's application, in accordance with NRC's budget request for fiscal 2011. Consequently, there was $10 million in NRC's 2011 budget for closing out the program, and no money requested for Yucca Mountain in the agency's fiscal 2012 budget, the commission said. NRC is now gathering information it has collected for a technical evaluation that will be made public but will not include regulatory conclusions.

Shimkus joined the ranks of many Republicans in accusing Jaczko of delaying NRC's final vote -- in light of the fact the opinions already had been formed and circulated -- and questioning the chairman's legal authority to close out the review of the project.

Jaczko said he made the decision to close out the review and that "my legal authority was as chairman of the commission."

DOE is already facing legal challenges from Washington state, South Carolina and other plaintiffs that filed a lawsuit in the U.S. Circuit Court of Appeals last year, charging that the Obama administration overstepped its authority in attempting to shut down the project. The opening arguments will be heard next week (E&E Daily, March 16).

In addition to challenging the legality of DOE's decision to withdraw its application under the Nuclear Waste Policy Act, parties to the lawsuit argue that the decision to end the NRC staff review of the Yucca Mountain project was based on "inside baseball" and that the chairman moved ahead without a decision by the full commission.

The National Association of Regulatory Utility Commissioners also joined the lawsuit against the DOE. Association spokesman Rob Thormeyer said the group is "crystal clear" on the law barring DOE's filing to withdrawal its application.

"We think the oral argument is really going to be a slam dunk because they haven't followed the letter of the law," he said.

NRC and DOE have said they will not challenge the court's decision.