Andy Fitz Senior Counsel. Washington State Attorney General s Office Ecology Division. December 14, 2012

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1 Andy Fitz Senior Counsel Washington State Attorney General s Office Ecology Division December 14, 2012

2 1982: NWPA sets out stepwise process for developing a deep geologic repository for disposal of spent nuclear fuel and highlevel radioactive waste 1987: Congress amended NWPA to focus site characterization solely on Yucca Mountain 2002: Congress approves Yucca Mountain, NV as the repository site (overriding Nevada s disapproval)

3 DOE must submit construction authorization application to NRC. 42 U.S.C (b). NRC must consider application and issue a final decision approving or disapproving the authorization within 3 years of DOE s submission (with option for additional year). 42 U.S.C (d).

4 June 2008: DOE submits license application to NRC NRC Staff begins technical review (leading to Safety Evaluation Report) Adjudication begins before NRC s ASLB (multiple parties; more than 300 admitted contentions )

5 State of Nevada opposes Senate Majority Leader opposes President campaigns against

6 March 2010: DOE moves to withdraw NRC license application with prejudice DOE does not intend ever to refile its application to construct a [repository ] at Yucca Mountain. [T]he Secretary s judgment here is not that Yucca Mountain is unsafe or that there are flaws in the [license application], but rather that it is not a workable option and that alternatives will better serve the public interest.

7 Multiple petitions to intervene in NRC proceeding Original actions in DC Circuit Court of Appeals (consolidated, Aiken I) Washington requested preliminary injunction (denied)

8 No discretion for DOE to withdraw application and irrevocably terminate Yucca Mountain project under NWPA (or NRC to permit such withdrawal, given its own NWPA duties)

9 June 2010: Oral argument in Las Vegas Board agrees DOE cannot withdraw; NRC cannot grant withdrawal Bases decision on NWPA mandates

10 The NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit.

11 One day after Board decision, NRC sua sponte requests expedited briefing Aiken I stayed pending NRC review Crickets

12 Continued silence in review of Board decision... October 4 CR memo: NRC will proceed on Yucca in accordance with the Commission s decisions on the FY 2011 budget. Proposed FY 2011 budget called for orderly closure of NRC activity upon the withdrawal or suspension of license review NRC begins shutdown, even though funded at $29M level. Pulls back SER.

13 Oral argument in March 2011; decision in July 2011 [D]espite the reasonableness of Petitioners fears, their petitions are premature. At this stage of the administrative process DOE has no say in whether the Yucca Mountain license application will be reviewed and granted. That power lies exclusively with the [NRC]

14 Although Petitioners point to evidence that the Commission has suspended the Licensing Board s review, we note that the NWPA requires the Commission to review the application and therefore we must assume that the Commission will comply with its statutory mandate. Very soon, the contingencies discussed above should be resolved... Should the Commission fail to act within the deadline specified in the NWPA, Petitioners would have a new cause of action

15 August 2011: Filed mandamus petition against NRC Still no decision on review of Board order (13 mos. and counting = unreasonable delay) No longer considering DOE application as required by NWPA (based on orderly closure ) Missed three-year decision deadline IG Report, other sources indicate NRC deadlocked 2-2 and that Chairman justified orderly closure based on DOE policy position, despite Board order

16 September 9, 2011: Commission finds itself evenly divided on whether to take the affirmative action of overturning or upholding the Board s decision. Nevertheless, Commission directs Board to complete all necessary and appropriate case management activities, including disposal of all matters currently pending before it

17 NRC adopted a reasonable approach in response to Congress s current de-funding of NRC and DOE activities related to the proceeding and in response to uncertainty over future Congressional appropriations. Ordering mandamus would be useless given limits of carry-over funding (~$10M ) and uncertainty of future funding

18 Can t blame Congress post hoc. Effected orderly closure when had $29M budget. No legal support for violating mandate based on projection Congress won t fund in future Can materially advance process with available funds (e.g., issue SER)

19 Court seemed to accept duties, breach of duties Key questions went to whether ordering mandamus would be useless given current ~$10M carry-over funding and no certainty of future funding

20 Case ordered in abeyance pending Congress s decisions on FY 2013 appropriations; status report to be filed no later than December 14, 2012 Concurrence: [I]t is possible Congress will... add no clarity to the current dispute. In that case, I believe mandamus likely would have to be granted. Dissent: Here, the [NRC] has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward. There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law.

21 September 28, 2012: President Obama signs CR funding federal government through March 27, Nothing addresses Yucca Mountain. Petitioners filed status report, requested that mandamus now issue. NRC advocates waiting longer Awaiting Court response