There's a critical hole in the application for the now-abandoned Yucca Mountain nuclear waste repository project in Nevada.
There's no applicant.
So says Nuclear Regulatory Commission Chairwoman Allison Macfarlane. She told reporters yesterday that the NRC is obeying court orders to use its remaining application funds, about $7.5 million, to continue its review of the project. That could lead to the release of critical safety studies as early as January.
But when the money runs out, there's still work to be done, such as holding hearings on 300 or so "contentions" raised about the project. In light of the Obama administration's dropping of support for the project, Macfarlane said, the Energy Department's seat at those hearings might be empty, a no-no under NRC rules.
"To work through any of these contentions, you need an applicant. That's how our licensing process works," Macfarlane said at an IHS Energy Daily round table in Washington, D.C.
"In this case, there is no applicant. The applicant has pulled back," she said. "Until there is an applicant that actually has resources to go forward, there's actually nothing for us to do."
At issue is President Obama's decision to kill the repository program in 2010, saying the project was not an attractive solution for storing U.S. nuclear waste. At that point, DOE had been pursuing a licensing for Yucca Mountain for at least two years. The administration proceeded to zero out funding, slash jobs and contractor activities, and dispose of Las Vegas properties associated with the project.
Macfarlane's comments surprised project backers who disagreed with the NRC chief.
"The DOE still is an applicant," said Jay Silberg of Pillsbury Winthrop Shaw Pittman LLP, a lawyer for the Nuclear Energy Institute.
Silberg pointed to DOE's failed attempts to pull its NRC application for the project. In 2010, the NRC's Atomic Safety Licensing Board ruled that DOE couldn't yank the application without congressional consent.
DOE appealed the board's decision to the full NRC panel, but the five-member commission split 2-2, with former Commissioner George Apostolakis recusing himself from the vote because he had done work on the site. A federal appeals court last year ordered the NRC to use what funds it has available to continue the review (Greenwire, Aug. 13, 2013).
Silberg acknowledged that the agencies are working with limited funds but said a missing applicant is not an obstacle for the project.
"As a matter of law, they still have a pending application," he said. "To say there is no applicant is factually and legally incorrect."
The NRC has been under pressure from the courts and on Capitol Hill to reveal the fate of the Yucca Mountain project, but the agency has repeatedly maintained that its hands are tied as long as Congress doesn't fund the review.
Republicans -- notably, Rep. John Shimkus of Illinois -- have pressed the NRC in hearings to request funding for the project -- a proxy fight between Republicans who support Yucca Mountain and Senate Majority Leader Harry Reid (D-Nev.), a strident foe of the project.
'Purview of Congress'
Despite the ongoing debate over the Nevada site, Macfarlane made clear that the United States needs to find a waste solution.
But that, she stressed, is not the NRC's job.
"The NRC is not charged with finding a final solution [for] this material; that is the purview of Congress and the administration," she said. "We have basically backed off of predicting when a repository will be available."
Macfarlane pointed to the agency's recent approval of a new "continued storage" rule dealing with the environmental effects of storing hot, radioactive waste at reactors.
The rule accepts the premise that radioactive waste generated by reactors producing electricity can be stored safely for up to 60 years after a plant is closed -- or indefinitely if a permanent repository isn't built. That finding will be used in subsequent licensing decisions (Greenwire, Aug. 26).
In casting her vote for the rule, Macfarlane took issue with the staff's conclusion in the general environmental impact statement that adverse effects of storing waste for any period of time are "small," adding that such an assertion would indicate that a deep geological repository is not necessary -- when in fact it is.
"I didn't want this rule to be an excuse not to actually find a final solution for this material, so that was the source of my concern," Macfarlane said yesterday. "I still strongly believe that the nation needs to grapple with the issue of developing a repository or some kind of geologic storage for this material."
Also in her vote, Macfarlane called on the agency's staff to take a deeper look at the possibility for nuclear waste to be stored at reactors across the country indefinitely -- a nod to the politically divisive and stalled process on Capitol Hill surrounding the Yucca Mountain site. She also said such an environmental analysis should be reviewed every decade.
Macfarlane also called on NRC staff to include a "worst case" scenario should no repository be found and all legal and administrative controls fall by the wayside. Without speculating about future institutions or societies, the NRC can hypothesize on the failure of casks -- large concrete and metal containers -- holding the waste, she said.
But Macfarlane confirmed yesterday that her recommendations, which were not the majority vote, will not move forward.
The chairwoman in recent weeks has called for a new rule specifically for closing plants, a critical step as many of the country's 100 nuclear plants reach -- and surpass -- four decades of operation and begin to close.
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