Closing Yucca Mountain: Litigation
Associated with Attempts to Abandon
the Planned Nuclear Waste Repository
Todd Garvey
Legislative Attorney
July 5, 2011
Congressional Research Service
7-5700
www.crs.gov
R41675
CRS Report for Congress
P
repared for Members and Committees of Congress
Closing Yucca Mountain
Summary
Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit
statutory basis for the Department of Energy (DOE) to dispose of the nation’s most highly
radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from
commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic
repository or an interim storage facility before permanent disposal. Defense-related high-level
waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate
the political difficulties of imposing a federal nuclear waste facility on a single community,
Congress attempted to establish an objective, scientifically based multi-stage statutory process for
selecting the eventual site of the nation’s new permanent geologic repository. Congress amended
the NWPA’s site selection process in 1987, however, and designated Yucca Mountain, Nevada, as
the sole candidate site for the repository by terminating site specific activities at all other
candidate sites.
The Obama Administration, in conjunction with DOE, has taken three important steps directed
toward terminating the Yucca Mountain project. First, the Administration’s FY2011 budget
proposal eliminated all funding for the Yucca Mountain project. Second, the President and
Secretary of Energy Steven Chu established a Blue Ribbon Commission to consider alternative
solutions to the nation’s nuclear waste challenge. Third, and most controversial, DOE has
attempted to terminate the Nuclear Regulatory Commission’s (NRC’s) Yucca Mountain licensing
proceeding by seeking to withdraw the license application for the Yucca Mountain facility.
DOE’s withdrawal motion triggered strong opposition from a number of concerned parties. The
states of Washington and South Carolina—each awaiting cleanup and removal of defense-related
nuclear waste at the Hanford and Savannah River Sites, respectively—have played significant
roles in the legal challenge to the license withdrawal. Claims challenging the Secretary’s authority
to withdraw the Yucca Mountain license application were filed with both the NRC and the U.S.
Court of Appeals for the District of Columbia (D.C. Circuit).
Controversy over the Yucca Mountain license application intensified in October 2010, when NRC
Chairman Gregory Jaczko directed NRC staff to use funds appropriated under the FY2011
continuing resolution to close down the agency’s review of the Yucca Mountain license
application.
While the result of the ongoing dispute over the legality of the attempted termination of the Yucca
Mountain program remains uncertain, the change of control in the House of Representatives
could have a significant impact on the fate of the Yucca Mountain facility. A number of leading
House Republicans have voiced strong opposition to shutting down the Yucca Mountain facility.
Consequently, the Yucca Mountain dispute may not only be played out before the NRC and the
D.C. Circuit, but also in the House of Representatives, in the form of appropriations disputes and
oversight hearings.
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Contents
Introduction ................................................................................................................................ 1
Establishing a Permanent Geologic Repository for High-Level Nuclear Waste and Spent
Nuclear Fuel ............................................................................................................................ 1
Yucca Mountain and the Obama Administration .......................................................................... 3
The Obama Administration Budget ....................................................................................... 3
DOE Reprogramming ..................................................................................................... 5
Blue Ribbon Commission on America’s Nuclear Future ........................................................ 6
Withdrawal of the Yucca Mountain Construction Authorization License ................................ 7
NRC Administrative Proceedings .................................................................................. 10
D.C. Circuit Litigation .................................................................................................. 15
NRC Uses Budget Guidance to Halt Yucca Mountain License Review ...................................... 19
Congressional Reaction to Proposed Termination of the Yucca Mountain Facility...................... 23
The Future of Yucca Mountain .................................................................................................. 25
Contacts
Author Contact Information ...................................................................................................... 26
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Introduction
Almost 30 years ago, Congress addressed increasing concerns regarding the management of the
nation’s growing stockpile of nuclear waste by calling for the federal collection of spent nuclear
fuel (SNF) and high-level nuclear waste (HLW) for safe, permanent disposal. Passed in 1982, the
Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the
Department of Energy (DOE) to dispose of the nation’s most highly radioactive nuclear waste.
The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in
exchange for a fee, and transport it to a permanent geologic repository or an interim storage
facility before permanent disposal. Defense-related high-level waste is to go into the same
repository.1 In order to achieve this goal, and in an effort to mitigate the political difficulties of
imposing a federal nuclear waste facility on a single2 community, Congress attempted to establish
an objective, scientifically based multi-stage statutory process for selecting the eventual site of
the nation’s new permanent geologic repository.3 Although DOE would be responsible for
developing the eventual repository and carrying out the disposal program, individual nuclear
power providers would fund a large portion of the program through significant annual
contributions, or fees, to the newly established Nuclear Waste Fund (NWF).4
Establishing a Permanent Geologic Repository for
High-Level Nuclear Waste and Spent Nuclear Fuel
The NWPA created a multi-stage statutory framework—requiring the participation of the
President, Congress, the Secretary of Energy, the Department of Energy, and the Nuclear
Regulatory Commission—that governs the establishment of a permanent geologic nuclear waste
repository. The various phases of the process include site recommendation, site characterization
and study, site approval, and construction authorization. At the site recommendation stage, the
Secretary of Energy (Secretary) was directed to nominate at least five potentially “suitable” sites
for an eventual repository.5 After identifying and conducting an initial study of these sites, the
Secretary was to recommend three sites to the President for characterization as “candidate sites.”6
Pursuant to these obligations, the Secretary recommended Deaf Smith County, Texas; Hanford,
Washington, and Yucca Mountain, Nevada, to the President in 1986. The Secretary’s
recommendations were met with significant opposition from the affected states; however, and as a
result, Congress amended the NWPA’s site selection process in 1987 and designated Yucca
Mountain as the sole candidate site for the repository by terminating “all site specific activities
(other than reclamation activities) at all candidate sites, other than the Yucca Mountain site.”7 The
1987 amendments, did not, however, end the site characterization, approval, and construction
authorization phases, which continued as outlined under the original terms of the NWPA.
1 P.L. 97-425, Nuclear Waste Policy Act (hereinafter NWPA), codified at 42 U.S.C. §§ 10101 et seq.
2 Although the NWPA originally envisioned the construction of a second repository to provide regional balance, the
idea was abandoned under the NWPA amendments of 1987.
3 NWPA §§ 111-125.
4 Id. at § 302.
5 The Secretary nominated sites in Mississippi, Texas, Utah, Washington, and Nevada.
6 NWPA § 112(b).
7 NWPA § 160.
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In accordance with the characterization stage of the NWPA framework, Yucca Mountain was
extensively inspected and studied in an effort to determine if the site was in compliance with
suitability guidelines established by DOE, and public health, safety, and environmental guidelines
established by the Environmental Protection Agency.8 Following significant litigation over the
proper safety standards to be applied to the Yucca Mountain facility, and notwithstanding charges
by the state of Nevada that the site was unsafe,9 Secretary of Energy Spencer Abraham
recommended that the President approve the Yucca Mountain site for the development of a
repository in 2002.10 President George W. Bush approved the Yucca Mountain site the next day,
and, pursuant to the terms of the NWPA, recommended the site to Congress.
The NWPA, however, provided the state in which the proposed repository would be located with
the opportunity to object to the President’s site recommendation by submitting a notice of
disapproval to Congress.11 If a notice of disapproval were submitted, the NWPA stated that the
site would be “disapproved” unless both houses of Congress overrode the state’s objection by
passing a “resolution of siting approval.”12 Although Nevada opposed the selection of Yucca
Mountain and quickly submitted its notice of disapproval, Congress passed, and the President
signed, the necessary approval resolution to override Nevada’s objection.13 Thus, the approval
stage of the NWPA process ended.
The fourth stage of the NWPA process commenced in June 2008 when DOE submitted an
application for authorization to construct the Yucca Mountain nuclear waste repository (license
application) to the Nuclear Regulatory Commission. Under the NWPA, “if the President
recommends to the Congress the Yucca Mountain site … and the site designation is permitted to
take effect … the Secretary shall submit to the [NRC] an application for a construction
authorization for a repository at such site.”14 The statute further directed that following
submission of the license application, the NRC “shall issue a final decision approving or
disapproving the issuance of a construction authorization not later than the expiration of 3 years
after the date of the submission of such application.”15 The NRC was considering the 8,600 page
license application when the new Obama Administration ushered in a change in policy with
respect to the suitability of Yucca Mountain as the future site of the nation’s permanent nuclear
waste repository.
8 There has been significant litigation over the environmental guidelines to be applied to Yucca Mountain. See, e.g.,
Nuclear Energy Institute v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).
9 Two key arguments against Yucca Mountain pertain to the region’s overall geologic instability and concerns over
water infiltration. See, Marta Adams, Yucca Mountain—Nevada’s Perspective, 46 Idaho L. Rev. 1, 1-6 (2010).
10 Matthew Wald, Energy Department Recommends Yucca Mountain for Nuclear Waste Burial, N.Y. Times, Feb. 15,
2002.
11 NWPA § 115(b).
12 NWPA § 115(c).
13 P.L. 107-200, 107th Cong. (2002).
14 NWPA § 114(b).
15 NWPA § 114(d).
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Yucca Mountain and the Obama Administration
Both President Obama and Secretary of Energy Steven Chu have stated that Yucca Mountain does
not represent a viable option for the permanent storage of nuclear waste.16 During the 2008
presidential campaign, then-Senator Obama supported Nevada’s fight against the repository,
asserting in an issue statement on energy policy that he did not believe Yucca Mountain was a
“suitable site.”17 In accordance with this view, during his first year in office President Obama and
DOE requested, and Congress appropriated, only enough funds in FY2010 to continue the NRC
license proceeding while halting any design or development progress on the actual repository.18
During his second year in office, the President, in conjunction with DOE, took three important
steps directed toward terminating the Yucca Mountain facility. First, the Administration’s FY2011
budget proposal eliminated all funding for the Yucca Mountain project.19 Second, the President
and Secretary Chu established a Blue Ribbon Commission to consider alternative solutions to the
nation’s nuclear waste challenge. Third, and most controversially, DOE has attempted to
terminate the NRC’s Yucca Mountain licensing proceeding by seeking to withdraw the license
application for the Yucca Mountain facility.
The Obama Administration Budget
Following years of decreases in program funding going back to the George W. Bush
Administration, the Obama Administration and Secretary Chu have resolved to completely
defund and terminate the Yucca Mountain program while developing nuclear waste disposal
alternatives.20 The Administration’s FY2011 and FY2012 budget proposals eliminate all funding
for the Yucca Mountain facility. The consecutive budget proposals follow years of steady
decreases in funding for the repository: from $572 million in FY2005, to $288 million in
FY2009, to only enough funds, approximately $197 million, to finance the ongoing NRC
licensing process in FY2010.21
The FY2011 DOE budget request was met with some resistance from both House and Senate
appropriators. Senator Patty Murray offered an amendment during the Senate Committee on
Appropriations’ consideration of the Energy and Water Appropriations bill that would have
restored funding to the repository.22 Similarly, the ranking Member of the House Appropriations
Subcommittee on Energy and Water Development, Representative Rodney Frelinghuysen, offered
16 Statement of Steven Chu, Secretary, Department of Energy, Before the Senate Committee on the Budget, March 11,
2009 (“[B]oth the President and I have made clear that Yucca Mountain is not a workable option.”).
17 Obama for America, “Barack Obama and Joe Biden: New Energy for America” (2008), available at
http://www.barackobama.com/pdf/factsheet_energy_speech_080308.pdf.
18 P.L. 111-85, 111th Cong. (2009).
19 The President’s FY2012 budget proposal also contained no funding for the Yucca Mountain facility. Available at
http://www.whitehouse.gov/omb/budget/Overview.
20 President’s FY2011 Budget Proposal at 71, available at http://www.gpoaccess.gov/usbudget/fy11/pdf/budget.pdf.
21 Statement of Steven Chu, Secretary, Department of Energy, Before the Senate Committee on Appropriations
Subcommittee on Energy and Water Development, and Related Agencies, May 19 2009. Secretary Chu had requested
$25 million in FY2011 to “wrap up” the Yucca Mountain project and preserve “critical knowledge and data.” See,
Stephen Power, Chu, Orszag at Odds Over Yucca Funding, Wall St. J., Jan. 14, 2010.
22 Sen. Murray Fails to Revive Nevada Nuke Waste Site, Seattle Times, July 23, 2010.
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an amendment that would have restored $100 million in funding for the Yucca Mountain
facility.23 Both proposals were rejected in committee.
In addition to defunding the Yucca Mountain project, the President’s budget request
recommended closing the Office of Civilian Radioactive Waste Management (OCRWM), which
had previously been charged with administering the Yucca Mountain project and many of DOE’s
obligations under the NWPA. After steady reductions in staff the OCRWM officially closed on
September 30, 2010.24 Pursuant to the President’s budget proposal, the administration of the NWF
and responsibility for DOE’s ongoing obligations under the Standard Contract25 and NWPA have
been shifted to the Office of Nuclear Energy.26 At least two Members of Congress have expressed
concern over the legality of the Administration’s decision to eliminate the statutorily established
OCRWM,27 which was specifically created by the NWPA for the purpose of “carrying out the
functions of the Secretary” under the act.28
In response to these concerns, DOE has suggested that the 1977 Department of Energy
Organization Act grants the Secretary of Energy “broad authority to create, eliminate, and merge
organizations” within DOE.29 Generally speaking, Congress has the authority to structure the
administrative bureaucracy. Thus, absent specific statutory authority, agencies have no legal
power to direct how statutorily defined functions and powers of agencies are to be utilized,
allocated, or abandoned.30 In this instance, the Secretary of Energy has been granted statutory
authority to “establish, alter, consolidate or discontinue, such organizational units or components
within the Department as he may deem to be necessary or appropriate.”31 The Administration’s
proposal—which Congress, through its appropriation power, is free to either follow or
disregard—is to “terminate” the OCRWM and transfer the office’s responsibilities to the Office of
Nuclear Energy.32 Given the Secretary’s statutorily granted authority, it is likely that such a
transfer would be a valid consolidation of DOE offices. However, any statutory duties or
23 House Appropriations Panel Rejects Yucca Mt. Amendment, Platts, July 16, 2010.
24 The OCRWM workforce at Yucca Mountain consisted of as many as 2,700 employees. DOE has stated that it will
help employees “find new opportunities, including working to help employees find new positions in the department and
throughout the federal government through career transition programs.” Emily Yehle, Yucca Project’s Last 600
Employees Scramble for New Jobs, N.Y. Times, Aug. 4, 2010.
25 Under the NWPA, DOE was authorized to enter into contracts with private nuclear facilities to allow the federal
government to take possession of nuclear waste and ensure its storage and disposal in a prospective permanent geologic
repository. In an effort to streamline the collection and disposal process, DOE elected to create a single “Standard
Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste” for use with nuclear power
providers. For additional information on the government’s obligations under the Standard Contract, see CRS Report
R40996, Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982, by Todd Garvey.
26 President’s FY2011 Budget Proposal, at 71.
27 See, Letter from Congressman Ralph Hall and Congressman Paul Broun, to Steven Chu, Secretary of Energy,
February 3, 2010.
28 42 U.S.C. § 10224 (“There hereby is established within the Department of Energy an Office of Civilian Radioactive
Waste Management.”).
29 P.L. 95-91, 95th Cong. (1977); Janice Valverde, Two House Republicans Challenge Decision to End Yucca Mountain
Funding, Close Office, BNA Daily Report for Executives, Feb. 9, 2010.
30 See, e.g., Kendall v. U.S. ex. rel Stokes, 37 U.S. (12 Pet.) 524 (1838)(holding that the President has no authority to
direct the Post Master’s performance of his statutory duty).
31 42 U.S.C. § 7253.
32 Department of Energy FY2011 Congressional Budget Request at 176 (Feb. 2010) (“The Administration has …
decided to terminate the Office of Civilian Radioactive Waste Management.”).
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obligations that were placed in OCRWM must continue to be carried out by the Office of Nuclear
Energy.33
DOE Reprogramming
An additional budget-related controversy arose in March 2010 as a result of DOE’s efforts to
reprogram FY2010 funds for use in closing the Yucca Mountain facility. Reprogramming occurs
where an agency seeks to redirect funds for an unforeseen purpose within an appropriations
account.34 This is to be distinguished from a transfer of funds, which involves moving funds from
one appropriations account to another.35 A transfer of funds generally requires congressional
authorization, while a reprogramming generally falls within the discretionary authority of the
agency.36 Notwithstanding agencies’ general authority to reprogram funds, appropriations bills
(and their accompanying House and Senate reports) often contain language directing the agency
to request approval from its appropriating committee before proceeding with a reprogramming.
The conference report to the Energy and Water Development and Related Agencies
Appropriations Act, for instance, contained specific language directing DOE to request approval
by the House and Senate Committees on Appropriations before reprogramming funds.37 These
types of restrictions, which generally appear in legislative reports attached to the appropriations
bill, are not considered binding law.38 However, agencies have historically followed the
procedures in order to maintain working relationships with their appropriating committees.
Although DOE submitted a request to reprogram FY2010 funds, the department has taken the
position that it may reprogram the funds without committee approval.39 While Secretary Chu
initially seemed to accept the committee’s controls over the proposed reprogramming during a
hearing on March 24, 2010, he followed the hearing with a letter to the committee explaining his
belief that he was free to reprogram funds to pay for the closure of the Yucca Mountain facility
without approval from the committee.40 In the letter, Secretary Chu advised the House
Appropriations Subcommittee on Energy and Water Development that his department did not
intend to accept committee controls over reprogramming, telling the subcommittee chair that
DOE had “the authority within the law to take the reprogramming actions that we have
planned.”41 Despite opposition by Members of the subcommittee, as well as a number of other
Members of Congress, DOE has successfully continued its shutdown of the Yucca Mountain
facility.
33 Such duties include annually preparing and submitting to Congress a “comprehensive report on the activities and
expenditures of the office.” 42 U.S.C. § 10224.
34 U.S. Government Accountability Office, Principles of Federal Appropriations Law, Vol. I: 2-30 (2004).
35 Id.
36 Id. (citing Lincoln v. Vigil, 508 U.S. 182 (1993)).
37 H.Rept. 111-278, 111th Cong. (2009) at 102 (“Any reallocation of new or prior year budget authority or prior year
de-obligations must be submitted to the House and Senate Committees on Appropriations in writing and may not be
implemented prior to approval by the Committees.”).
38 See, e.g., American Hospital Assn. v. NLRB, 499 U.S. 606, 616 (1991) (“Petitioner does not—and obviously could
not—contend that this statement in the Committee Reports has the force of law, for the Constitution is quite explicit
about the procedure that Congress must follow in legislating.”).
39 Letter from Steven Chu, Secretary of Energy, to Peter J. Visclosky, Chairman, Subcommittee on Energy and Water
Development, Committee on Appropriations, U.S. House of Representatives, March 26, 2010.
40 Id.
41 Id.
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Blue Ribbon Commission on America’s Nuclear Future
Shortly before releasing the FY2011 budget proposal, the President asked DOE to establish the
Blue Ribbon Commission on America’s Nuclear Future (Commission) to explore, study, and
evaluate alternatives to the Yucca Mountain facility for the permanent storage of SNF.42 The 15-
member Commission, appointed by the Secretary of Energy, consists of distinguished scientists,
academics, industry representatives, labor representatives, and former elected officials.43 The
Commission’s goal is to “provide recommendations for developing a safe, long-term solution to
managing the nation’s used nuclear fuel and nuclear waste.”44 The Commission will not, however,
be considering specific sites for a future repository.45
Co-chaired by former Congressman Lee Hamilton and former National Security Advisor Brent
Scowcroft, the Commission is charged with producing an interim report within 18 months of the
Commission’s establishment and a final report within 24 months.46 Although not expressly
prohibited from considering Yucca Mountain as a potential solution to the nation’s nuclear waste
problems,47 Secretary Chu and the White House have conveyed that the Commission should
focus only on “alternatives” to Yucca Mountain. Accordingly, the Commission co-chairs have
stated that “Secretary Chu has made it quite clear that nuclear waste storage at Yucca Mountain is
not an option.”48 In a February 11, 2011, letter to Co-chairs Hamilton and Scowcroft, Secretary
Chu reaffirmed that the Commission should not be considering Yucca Mountain as a viable
nuclear waste disposal solution. In the letter Secretary Chu reiterated that it was time to “turn the
page and look for a better solution—one that is not only scientifically sound but that also can
achieve a greater level of public acceptance than would have been possible at Yucca Mountain. It
is time to move beyond the 25 year old stalemate over Yucca Mountain.”49
42 Memorandum from President Barack Obama, to Steven Chu, Secretary of Energy, Blue Ribbon Commission on
America’s Nuclear Future, Jan. 29, 2010.
43 A list of Commission members is available at http://brc.gov/members.html.
44 DOE Press Release, Secretary Chu Announces Blue Ribbon Commission on America’s Nuclear Future, Jan. 29,
2010. Available at http://www.doe.gov. According to Secretary Chu, the Commission will be looking at “different
types of disposal options.” Janice Valverde, Administration to Withdraw License Bid for Yucca Mountain, Eliminates
Funding, BNA Daily Report for Executives, Feb. 2, 2010.
45 DOE itself is currently prohibited by statute from considering specific sites other than Yucca Mountain. 42 U.S.C. §
10172 (“The Secretary shall terminate all site specific activities … at all candidate sites, other than the Yucca Mountain
site, within 90 days after the enactment of the Nuclear Waste Policy Amendments Act of 1987.”).
46 The Commission held its first meeting on March 25 and 26, 2010. The Commission is divided into three sub-
committees focusing on disposal, reactor fuel cycle technology, and transportation and storage. For updated
information on the Commission’s work see http://brc.gov.
47 The initial House-passed bill approving the Administration’s FY2010 proposed budget included language mandating
that any review of nuclear waste disposal alternatives include Yucca Mountain as a potential option. However, the final
DOE appropriations bill contained language mandating only that DOE “consider all alternatives for nuclear waste
disposal.” P.L. 111-85 (2009).
48Steve Tetreault, Federal Panel to Examine Nuclear Waste Storage, Las Vegas Review-Journal, Jan. 30, 2010. But cf.,
Memorandum and Order, Atomic Safety and Licensing Board, Docket No. 63-001-HLW, June 29, 2010, at 19 n.69
(“There appears to be no express contradiction of the House Report language, which requires the Blue Ribbon
Commission to consider Yucca Mountain, in either the Conference Report or the Senate Report and thus the language
in the House Report appears to be the law.”).
49 Letter from Steven Chu, Secretary of Energy, to Lee Hamilton and Brent Scowcroft, Co-Chairs, Blue Ribbon
Commission on America’s Nuclear Future, Feb. 11, 2011, available at http://brc.gov/library/correspondence/
BRC_Letter_from_Secretary_Chu_2-11-2011.pdf.
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The Commission’s Disposal Subcommittee issued its draft recommendations on June 1, 2011.50
As expected, the report did not make any specific recommendations as to Yucca Mountain, other
than to make clear that the process of selecting and establishing the Yucca Mountain facility has
“suffered from several flaws” including “inflexible and unrealistic deadlines” and the use of a
“non-consent based selection process.”51 While admitting that the “the future of the Yucca
Mountain project remains uncertain,” the Subcommittee did make specific findings that may have
significant influence over the future of nuclear waste disposal.52 Importantly, the Subcommittee
concluded that deep geologic disposal “is the most promising and technically accepted option
available” and therefore recommended that the U.S. “proceed expeditiously to develop one or
more permanent deep geological facilities for the safe disposal of high-level nuclear waste.”53
Additionally, the Subcommittee concluded that “new institutional leadership for the nation’s
nuclear waste program is needed.”54 The draft report therefore recommended that a newly
established “single-purpose organization is needed to develop and implement a focused,
integrated program for the transportation, storage, and disposal of nuclear waste in the United
States.”55 The Subcommittee found a sufficiently independent “federal corporation chartered by
Congress” to be the most promising structure for this new entity.56
Withdrawal of the Yucca Mountain Construction Authorization
License
The most controversial action taken by DOE has been the agency’s attempted withdrawal of the
license application in an effort to terminate the NRC’s ongoing Yucca Mountain license
proceeding. DOE has made clear that the decision to withdraw the license, initially submitted in
June 2008,57 was based on “policy” considerations.58 Specifically, DOE has asserted that scientific
and technological advancements since the enactment of the NWPA, such as dry cask storage and
advanced recycling, “provide an opportunity to develop better alternatives to Yucca Mountain.”59
50 Blue Ribbon Commission on America’s Nuclear Future, Draft Report of the Disposal Subcommittee, available at:
http://brc.gov/sites/default/files/documents/draft_disposal_report_06-01-11.pdf.
51 Id. at 17.
52 Id. at 15.
53 Id. at iii. The Subcommittee thus recommended the same general form of disposal as was planned at the Yucca
Mountain facility.
54 Id. at 33.
55 Id. at iv.
56 Id. at 31.
57 The NRC reportedly spent $58 million in FY2009 to review the Yucca Mountain license. See, Janice Valverde,
Administration to Withdraw License Bid for Yucca Mountain, Eliminates Funding, BNA Daily Report for Executives,
Feb. 2, 2010.
58 See, Nuclear Regulatory Commission Atomic Safety and Licensing Board, Memorandum and Order, In the Matter of
U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04 (June 29, 2010) at 2 (“Conceding that the Application
is not flawed nor the site unsafe, the Secretary of Energy seeks to withdraw the Application with prejudice as a ‘matter
of policy’ because the Nevada site ‘is not a workable option.’”) See also, Nuclear Regulatory Commission Atomic
Safety and Licensing Board, U.S. Department of Energy’s Reply to the Responses to the Motion to Withdraw, In the
Matter of U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04 (May 27, 2010) at 1 (Characterizing the
question presented as whether the Secretary has authority “to seek withdrawal of a license application for a repository
when the Secretary has determined, as a matter of policy, not to proceed with that repository.”).
59 See, Brief for Respondents, In re Aiken County, No. 10-1050 (D.C. Cir. Jan. 3, 2011). DOE has also cited consistent
opposition from Nevada as a reason for the policy shift.
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DOE formally filed its motion asking the Atomic Safety and Licensing Board (Board) to dismiss
the application “with prejudice” on March 3, 2010.60 A common legal term, an application that is
withdrawn “with prejudice” is generally barred from being re-filed in the future. However,
whether or not an application, motion, or claim is dismissed with prejudice is a decision made by
the Board and the NRC, and not by the requesting party.61 DOE specifically asked the Board to
dismiss the application with prejudice because the agency “does not intend ever to refile an
application to construct a permanent geologic repository for spent nuclear fuel and high-level
radioactive waste at Yucca Mountain.”62 As construction on the Yucca Mountain facility cannot
continue without a construction authorization from the NRC, many commentators consider a
successful “with prejudice” withdrawal as marking the formal termination of any potential
repository at Yucca Mountain.63
DOE’s withdrawal motion triggered strong opposition from a number of concerned parties. The
states of Washington and South Carolina—each awaiting cleanup and removal of defense-related
nuclear waste at the Hanford and Savannah River Sites, respectively—have led the legal
challenge against the license withdrawal.64 Similar legal claims65 were immediately filed in two
different venues. Washington; South Carolina; Aiken County, South Carolina; the Prairie Island
Indian Community; and the National Association of Regulatory and Utility Commissioners
(NARUC) petitioned to intervene in the NRC licensing proceeding in order to stop the
withdrawal. Washington, South Carolina, and Aiken County, along with a group of private
plaintiffs from Washington State, have also filed statutory claims in the D.C. Circuit challenging
DOE’s authority66 to withdraw the license application.67
The legal battle over the Secretary’s authority to withdraw the license application hinges on
specific statutory language within the NWPA. Section 114 outlines the process for obtaining the
necessary site approval and construction authorization and provides the statutory foundation for
60 U.S. Department of Energy’s Motion to Withdraw, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-
HLW-CAB04, March 3, 2010.
61 10 C.F.R. § 2.107 (“The Commission may … on receiving a request for withdrawal of an application, deny the
application or dismiss it with prejudice.”). Under NRC procedures, decisions by the Board are appealable to the
Commission as a whole.
62 U.S. Department of Energy’s Motion to Withdraw, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-
HLW-CAB04, March 3, 2010.
63 See, 42. U.S.C. § 10134; Shannon Dininny, Wash. to Intervene in Yucca Mountain Case, Seattle Times, March 1
2010. If the application were dismissed with prejudice, it is an open question as to whether the application could then
be re-filed at a later date by a different agency.
64 The nuclear waste located at the Hanford and the Savannah River sites was intended for disposal at Yucca Mountain.
65 The arguments made before the NRC and the D.C. Circuit were essentially the same, with the core arguments
focusing on the NWPA, the National Environmental Policy Act, and the Administrative Procedure Act.
66 NARUC also filed a case with the D.C. Circuit to bar the Secretary from collecting Nuclear Waste Fund fees. See,
National Association of Regulatory Utility Commissioners v. DOE, 2010 U.S. App. LEXIS 25579 (D.C. Cir. Dec. 13,
2010).
67 It is important to recognize that the litigation associated with DOE’s attempts to withdraw the license application is
distinct from the contract litigation currently proceeding in the U.S. Court of Federal Claims and the U.S. Court of
Appeals for the Federal Circuit. The contract claims seek damages based on a partial breach of the Standard Contract
entered into by DOE and individual nuclear power providers, whereas the claims before the NRC and the D.C. Circuit
are asking those bodies to prohibit the Secretary of Energy from withdrawing the Yucca Mountain license application.
The license withdrawal decision may have an impact on future liability in the contract cases in as far as it leads to
further delays in DOE’s ability to begin collecting and disposing of nuclear waste covered under the Standard Contract.
For more information on the contract claims, see CRS Report R40996, Contract Liability Arising from the Nuclear
Waste Policy Act (NWPA) of 1982, by Todd Garvey.
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the ongoing litigation.68 The provision states that once the site approval procedures are completed
and the site is designated, as was the case with Yucca Mountain, “the Secretary shall submit to the
[NRC] an application for a construction authorization for a repository.”69 Upon submission of the
application, the NRC “shall consider” the application “in accordance with the laws applicable to
such applications, except that the [NRC] shall issue a final decision approving or disapproving
the issuance of a construction authorization not later than the expiration of 3 years after the date
of the submission of such application.”70
DOE has put forth three main arguments in support of the agency’s motion to withdraw the
license application. First, at a general level, DOE argues that the Secretary’s decision to withdraw
the license application, a decision the agency characterizes as a “discretionary” policy choice,
should be granted significant deference by both the NRC and the federal courts.71 The Secretary,
and the President, clearly have broad discretion in carrying out the procedures outlined by the
NWPA for establishing a permanent geologic repository.72 For example, the Secretary exercises
broad discretion under the NWPA both before and after the licensing process. Most starkly, § 113
states: “[i]f the Secretary at anytime determines the Yucca Mountain site to be unsuitable for
development as a repository, the Secretary shall … terminate all site characterization activities at
such site.”73 This provision gives the Secretary broad authority to terminate the Yucca Mountain
program “at any time” as long as he finds the site “unsuitable.” However, the authority found in §
113, entitled “Site Characterization,”74 presumably applies only during the site characterization
phase—a phase terminated once the Secretary recommended Yucca Mountain to the President.
Whether the Secretary retains discretion during the license application phase, as governed by the
explicit language of §114, is a key question to be resolved by the NRC and the D.C. Circuit.
Second, DOE has argued that the NWPA specifically incorporates NRC regulations that allow for
the withdrawal of a license application by ensuring that that license application be considered in
accordance “with the laws applicable to such applications.”75 The laws applicable to NRC license
applications would include general procedural regulations promulgated by the NRC.76 These
regulations clearly recognize the ability of an applicant to request the withdrawal of a license
application from consideration before the NRC or the Board.77 Thus, because the NWPA seems to
incorporate “applicable” NRC regulations, DOE has asserted that the NWPA’s requirement that
the Secretary submit the application must be read in conjunction with NRC regulations that allow
withdrawal.78 Under such a reading, the NWPA could be interpreted to express Congress’s clear
68 NWPA § 114.
69 NWPA § 114(b) (emphasis added).
70 NWPA § 114(d) (emphasis added).
71 U.S. Department of Energy’s Motion to Withdraw, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-
HLW-CAB04 (March 3, 2010).
72 See, NWPA §§ 112-113.
73 NWPA § 113.
74 As noted previously the NWPA sets up what amounts to a four-phase program for establishing a permanent
repository. These phases are entitled characterization, recommendation, approval, and authorization. See, NWPA §§
112-115.
75 U.S. Department of Energy’s Motion to Withdraw, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-
HLW-CAB04 (March 3, 2010) at 5.
76 See, 10 C.F.R. Part 2.
77 10 C.F.R. § 2.107. Although this provision authorizes a party to request withdrawal, it is unlikely that the provision
establishes a right to withdrawal.
78 U.S. Department of Energy Motion to Withdraw, In the Matter of U.S Department of Energy, ASLBP No. 09-892-
(continued...)
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intent that, following the submission of the license application, any license proceeding must
progress subject to existing NRC procedural regulations.
Finally, DOE has argued that even if §114 required that the Secretary submit the license
application, nothing in the statute restricts the Secretary’s actions after the application is
submitted.79 Under DOE’s interpretation of the statute, the agency’s statutory obligations with
regard to the license application were satisfied in June 2008 when the agency formally submitted
the license application. What the Secretary chooses to do with the application after submission is
viewed by DOE as outside the scope of §114’s language.
Those who oppose DOE’s authority to withdraw the license application rely on the plain language
of §114. The challengers take the position that the Secretary’s interpretation of §114 would
essentially “render the [provision’s] plain language meaningless.”80 Pursuant to this position, the
challengers argue that the NWPA clearly expressed Congress’s intent that the license proceeding
be carried through to its ultimate conclusion. Section 114 states that the Secretary “shall” submit
the license application to the NRC and that the NRC “shall” not only consider the application, but
also issue a final decision within a three-year time frame.81 In conjunction with the requirement
that the Secretary provide Congress with status reports on the progress of the license
application,82 the challengers interpret these provisions as Congress’s attempt to mandate that
DOE initiate the licensing proceeding by filing the application, at which point authority over the
application transfers to the NRC to subsequently carry out its obligation to reach a final decision.
Ultimately, the challengers view the NWPA as creating a step-by-step process, complete with
reporting obligations, that necessarily leads to a final decision on the merits of the license
application by the NRC.83 Challengers argue that a DOE interpretation that would allow the
Secretary to terminate the license proceeding prior to NRC’s final determination would be
contrary to Congress’s clear intent.
NRC Administrative Proceedings
The Board, which has been reviewing the Yucca Mountain license application since the
application was submitted in June of 2008, is an “independent trial-level adjudicatory body” that
conducts all licensing hearings for the NRC.84 The Board generally consists of three
administrative judges, but unlike other administrative adjudicative bodies, not all Board judges
are trained lawyers. A given panel generally consists of a mix of legal and technical judges.85
Technical judges must be “persons of recognized caliber and stature in the nuclear field” and
generally have substantial experience in nuclear engineering.86
(...continued)
HLW-CAB04, (March 3, 2010).
79 Id. at 5-6.
80 See, e.g., Motion for Preliminary Injunction, Washington v. DOE, No-10-1050 (D.C. Cir. April 13, 2010) at 11.
81 NWPA § 114(b); NWPA § 114(d).
82 NWPA § 114(c).
83 See, e.g., Motion for Preliminary Injunction, Washington v. DOE, No-10-1050 (D.C. Cir. April 13, 2010).
84 Nuclear Regulatory Commission: ASLBP Responsibilities, available at http://www.nrc.gov/about-nrc/regulatory/
adjudicatory/aslbp-respons.html.
85 Id.
86 Nuclear Regulatory Commission: Atomic Safety and Licensing Board Panel, available at http://www.nrc.gov/about-
(continued...)
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DOE filed its motion to withdraw the Yucca Mountain license application with the Board on
March 3, 2010. On April 6, 2010, the Board issued an initial opinion questioning its own
authority to adjudicate the dispute while noting that many of the significant legal questions
involved with DOE’s motion to withdraw were currently pending before the D.C. Circuit.87 Given
the circumstances, the Board decided to avoid reaching the merits of DOE’s withdrawal motion
and, “in the interest of judicial efficiency,” suspended consideration of DOE’s motion “pending
guidance from the Court of Appeals on the relevant legal issues.”88
The Board’s decision was immediately appealed by DOE to the full NRC, where the Commission
overturned the order.89 Asserting that the independent agency had a significant role to play in the
ongoing legal dispute, the NRC reminded the Board that “the application of our expertise in the
interpretation of the [Atomic Energy Act], the NWPA, and our own regulations will, at a
minimum, inform the court in the consideration of the issues raised by DOE’s motion to
withdraw.”90 Additionally, the NRC noted that it was unclear when, or even if, the D.C. Circuit
would provide the guidance sought by the Board given questions as to whether the D.C. Circuit
had jurisdiction to reach the merits of the Yucca Mountain claims before it.91 Therefore, rather
than rely on a determination by the D.C. Circuit, the NRC remanded the case to the Board to
“resolve the matter pending before our agency as expeditiously and responsibly as possible.”92
The NRC’s rebuke of the Board’s order was not surprising given the traditional roles of
administrative adjudicatory bodies and federal courts. Generally speaking, where similar claims
are simultaneously filed before an agency and a federal court, the court, for reasons of judicial
efficiency, will typically allow the administrative proceeding to reach an independent conclusion
rather than simultaneously consider the same questions.93 In this way the federal court allows the
parties the opportunity to resolve their claims at the administrative level, and allows the agency to
establish a factual record upon which, on a potential appeal, the federal court can base its own
legal conclusions. Additionally, by allowing the agency to reach an initial decision, the federal
court receives the benefit of the agency’s subject-matter expertise.94 Consistent with this
traditional allocation of duties, the D.C. Circuit, rather than taking up the claims as the Board had
(...continued)
nrc/organization/aslbpfuncdesc.html.
87 As previously noted, claims opposing DOE’s withdrawal were simultaneously filed with the NRC and the D.C.
Circuit.
88 Memorandum and Order, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04 (April 6,
2010) at 3.
89 Memorandum and Order, In the Matter of U.S. Department of Energy, No. 63-001-HLW (April 23, 2010).
90 Id. at 4.
91 For example, judicial review is generally limited to “final agency action.” However, the NWPA provides the D.C.
Circuit with jurisdiction over any claim “alleging the failure of the Secretary, the President, or the Commission to make
any decision, or take any action, required under this subtitle …” NWPA § 119(a).
92 Memorandum and Order, In the Matter of U.S. Department of Energy, No. 63-001-HLW (April 23, 2010) at 4.
93 This general practice is based on the APA’s requirement of “finality” and the general requirement that a party
exhaust the available administrative process before bringing a claim to federal court. See, 5 U.S.C. § 704; McGee v.
United States, 402 U.S. 479 (1971).
94 See, e.g., Memorandum and Order, In the Matter of U.S. Department of Energy, No. 63-001-HLW (April 23, 2010)
at 4.
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hoped, released an order delaying its consideration of the Yucca Mountain claims until the NRC’s
evaluation of DOE’s motion was complete.95
Ruling of the Atomic Safety and Licensing Board
Ordered by the NRC to reach a final decision on DOE’s motion, the Board responded with a
sweeping opinion ruling that Secretary Chu did not have the authority to withdraw the Yucca
Mountain license application.96 The Board rejected the discretion that DOE had argued for,
concluding instead that the statutory language of the NWPA “mandates progress towards a merits
decision,” which DOE could not “single handedly derail” by withdrawing the license
application.97 Beginning with the plain language of §114, the Board held that Congress had
established a “detailed, specific procedure” that removed control of the license application
process from the Secretary by creating a mandatory statutory scheme.98 Under this scheme, the
official site designation triggered DOE’s obligation to submit the license application, which once
submitted, in turn triggered a “duty on NRC’s part to consider and to render a decision on the
application.”99 In the Board’s view, to allow DOE to withdraw the application as a matter of
policy at this stage would be contrary to Congress’s intent that the licensing process be “removed
from the political process.”100 Drawing a distinction between the clearly discretionary site
characterization phase detailed in §113, and the mandatory language of §114, the Board noted
that “[c]learly, when Congress wished to permit DOE to terminate activities, it knew how to do
so.”101 With no such inclusion of discretionary language in §114, the Board denied the Secretary’s
authority to withdraw the license application.
The Board also rejected DOE’s argument that the NWPA reflected Congress’s intent to integrate
NRC procedural regulations that allow for withdrawal. First, the Board characterized 10 C.F.R. §
2.107 as a clarification of the NRC’s authority to grant or deny a motion for withdrawal, rather
than a “presumptive” grant of permission to an applicant to “unilaterally withdraw [an]
application.”102 Additionally, the Board concluded that Congress would not obliquely alter a
“fundamental” aspect of the NWPA’s licensing scheme through “vague terms or ancillary
provisions.”103 “It would require a strained and tortured reading of the NWPA,” held the Board,
“to conclude that Congress intended that its explicit mandate to the NRC … might be nullified by
a nonspecific reference to an obscure NRC procedural regulation.”104
In reaching its conclusion, the Board also gave significant weight to Congress’s 2002 decision to
override Nevada’s objection to establishing the future repository at Yucca Mountain. As
previously noted, once President Bush designated Yucca Mountain as the candidate site for the
95 Per Curiam Order, In re Aiken County, No. 10-1050 (D.C. Cir. July 28, 2010).
96 Memorandum and Order, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04 (June 29,
2010) (hereinafter ASLB Order).
97 Id. at 3.
98 Id. at 6.
99 Id. at 7.
100 Id. at 9.
101 Id. at 8.
102 Id. at 13.
103 Id. at 14.
104 Id.
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nation’s permanent repository and recommended the site to Congress, under §115 and §116 of the
NWPA Nevada was authorized to veto that designation by submitting to Congress a notice of
disapproval.105 However, the NWPA permits Congress to override the state’s objection by passing
a resolution approving of the site. In accordance with these procedures, Nevada submitted a
notice of disapproval, which Congress then overrode in P.L. 107-200. The Board interpreted this
as reserving to Congress the ultimate decision “as to whether the Yucca Mountain project was to
move forward.”106 The Board reasoned that “by overruling Nevada’s disapproval of the Yucca
Mountain site Congress was commanding, as a matter of policy, that Yucca Mountain was to
move forward” with the license application to be decided on its “technical merits” by the NRC.107
Although DOE’s motion was denied outright, the Board went on to state in dicta that, even were a
withdrawal of the application permitted, the dismissal should not be granted “with prejudice.”
The Board noted that NRC practice has traditionally reserved “with prejudice” dismissals for
situations in which the Board has reached the merits of the application.108 With the Board having
reached no merits-based decision on any aspect of the license application, any dismissal should,
according to the Board, be without prejudice. Additionally, the Board determined that the “public
interest” would not be served if the current Secretary’s judgment on Yucca Mountain could “tie
the hands of future administrations for all time.”109
NRC Appeal
One day after the Board’s decision, and before DOE filed a formal appeal, the NRC released an
order inviting the parties to file briefs on whether the Commission should review the Board’s
decision.110 As of the fall of 2010, the parties had filed all briefs, all Commissioners had cast their
votes, and a final order from the NRC was expected at any moment.111 Yet, almost ten months has
passed and the NRC has not released an order on the license withdrawal. Some Members of
Congress have accused Chairman Jaczko of delaying the NRC decision by “footdragging.”112
However, in testimony before the House Subcommittee on Energy and Power and Subcommittee
on Environment and the Economy, Chairman Jaczko stated that the Commission could not move
105 NWPA §§ 115-116.
106 ASLB Order, at 10. Although the Board gave the congressional approval resolution great weight, it is important to
note that had Nevada not objected to the designation of the Yucca Mountain site, no approval resolution would have
been necessary for the Yucca Mountain project to move forward. The purpose of the resolution was simply to override
Nevada’s objection.
107 Id.
108 Id. at 21-22
109 Id. at 21.
110 Order of the Nuclear Regulatory Commission, In the Matter of U.S. Department of Energy, No. 63-001-HLW (June
30, 2010).
111 Commissioner Svinicki voted on August 25, 2010; Chairman Jaczko initially voted on August 25 as well, but
withdrew his vote on August 30, and submitted his final vote on October 29, 2010; Commissioner Ostendorff voted on
August 26, 2010; and Commissioner Magwood voted on September 15, 2010. See, Report of Hubert T. Bell, Inspector
General, Nuclear Regulatory Commission, NRC Chairman’s Unilateral Decision to Terminate NRC’s Review of DOE
Yucca Mountain Repository License Application, OIG Case No. 11-05. Available at:
http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/061411/IGREPORT.PDF (hereinafter
NRC IG Report).
112 See, The Role of the Nuclear Regulatory Commission in America’s Energy Future: Hearing Before the H.
Subcommittee on Energy and Power and the Subcommittee on Environment and the Economy, 112th Cong. (May 4,
2011); Steve Tetreault, “Vote Timing Nettles Repository Backers,” Las Vegas Review Journal (Nov. 10, 2010).
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from what he characterized as “preliminary views” to a final order without a “majority
position.”113 Pursuant to NRC voting guidelines,114 when considering a matter, Commissioners
will initially circulate votes along with explanations of their positions. Once a majority position is
reached, the Commission then holds a public affirmation session and issues a final order.115
Although all Commissioners have issued preliminary votes and a draft order has been before the
Commission since November 1, 2010, the Commissioners have apparently been unable to agree
on a majority position to be articulated in the final order.
With only four Commissioners eligible to vote, and the Commission apparently at an impasse, it
seems reasonable to presume that the NRC vote on the DOE license withdrawal is tied 2-2. Under
NRC procedures, Commission action requires majority approval.116 Thus, as the voting guidelines
expressly state: “requests for Commission action will be denied if the Commission vote is 2-2.
Therefore, a 2-2 vote will result in: … denial of review of Licensing Board decisions.”117
Chairman Jaczko has taken the position that until there is a majority position among the
Commissioners, the Board’s decision can neither be affirmed nor reversed, and therefore will
remain in limbo until consensus can be reached among the four participating Commissioners. At
least one Commissioner has taken the opposite position—citing NRC voting procedures—that
absent a majority position, the Board’s decision should be upheld.118 A recently released NRC
Inspector General investigation highlighted the ambiguous nature of the NRC voting procedures,
finding that the “written procedures do not provide details on the process that occurs between the
completion of a ... vote and the conduct of an affirmation vote on the matter. The lack of
enforcement of and specificity in the Commission’s written procedures ... allows matters to sit in
abeyance without final Commission action.”119 Notwithstanding the uncertainty associated with
the current delays, what remains clear is that at least three Commissioners would need to vote in
favor of overturning the Board’s decision for DOE to be granted the authority to withdraw the
Yucca Mountain license application.
Controversy has also arisen surrounding the NRC’s ability to render a fair and objective decision
on DOE’s license withdrawal.120 The NRC consists of five commissioners, three of whom—
William Magwood, William Ostendorff, and George Apostolakis—were nominated by President
Obama and confirmed by the Senate in February 2010. During the Senate confirmation hearing
for the three nominees, Senator Barbara Boxer specifically asked each nominee whether, as
commissioners, they would “second guess [DOE’s] decision to withdraw the license application
for Yucca Mountain from NRC’s review.”121 All three responded “No.”122 As a result, Aiken
County filed a motion with the NRC accusing the commissioners in question of having an
113 Id.
114 NRC Voting guidelines are nonbinding and are not consistently followed. See, NRC IG Report, supra note 111, at
45.
115 See, NRC Internal Commission Procedures, Chapter III: Voting. Available at: http://www.nrc.gov/about-nrc/policy-
making/internal.html.
116 Id. (“A majority Commission position is needed for action.”).
117 Id. at App. 5.
118 According to the NRC IG Report, “Commissioner Ostendorff concluded that based on the Internal Commission
Procedures, a 2-2 voting split would uphold the ASLB’s decision.” NRC IG Report, supra note 111 at 36.
119 Id. at 45.
120 Steve Tetreault, Vote Timing Nettles Repository Backers, Las Vegas Review Journal (Nov. 10, 2010).
121 Hearing before the Senate Committee on Environment and Public Works, February 11, 2010.
122 Id.
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improper predisposition for overturning the Board’s decision and asking that all three
commissioners recuse themselves from the NRC’s review.123 Although none of the commissioners
recused themselves in response to the motion by Aiken County, Commissioner Apostolakis did
recuse himself from the appeal because he had previously been involved with an independent
assessment of the Yucca Mountain license.
D.C. Circuit Litigation
DOE’s License Withdrawal
In conjunction with opposing DOE’s motion for withdrawal at the administrative level, a number
of parties have filed cases in federal court in an attempt to stop DOE and the Obama
Administration from terminating the Yucca Mountain program.124 These statutory claims, filed by
South Carolina, Washington, and other private plaintiffs, have been consolidated in the D.C.
Circuit.125 The states of South Carolina and Washington have played significant roles in much of
the litigation surrounding the Yucca Mountain facility. DOE’s Hanford Nuclear Reservation,
located in southeast Washington, is currently home to approximately 53 million gallons of
defense-related nuclear waste—a majority of which was to be disposed of, after solidification, in
the future Yucca Mountain repository.126 Similarly, DOE’s Savannah River Site is home to large
amounts of high-level waste. The parties have asked the court to block DOE from withdrawing
the Yucca Mountain license.
The complaints filed in the case127 allege violations of the NWPA, the National Environmental
Policy Act and the Administrative Procedure Act—claims similar to those made before the NRC.
The petitioners assert that the NWPA creates a mandatory obligation on behalf of the Secretary to
submit the application, as well as a mandatory obligation on behalf of the NRC to review the
application.128 Any withdrawal, the complaints argue, would be in violation of the site selection
provisions of the NWPA. Petitioners also argue that DOE’s decision to abandon the Yucca
123 Aiken County Response in Opposition to Commission Review of ASLB Order, Docket No. 63-001-HLW, ASLBP
No. 09-892-HLW-CAB04, July 8, 2010.
124 In a related suit, New York, Connecticut, and Vermont challenged the NRC’s “waste confidence” determination in a
complaint filed with the D.C. Circuit on February 14, 2011. In September 2010, the NRC approved a revision to the
agency’s waste confidence rule, affirming NRC’s confidence that “spent fuel generated in any reactor can be stored
safely and without significant environmental impacts for at least 60 years beyond the licensed life for operation … of
that reactor …” 10 C.F.R. § 51.23 The previous rule only expressed confidence that nuclear waste could be stored for
“30 years beyond the licensed life for operation” of any reactor. 10 C.F.R. § 51.23 (2009) Additionally, whereas the
previous rule stated that “the Commission believes there is reasonable assurance that at least one mined geologic
repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be
available within 30 years beyond the licensed life for operation of any reactor…,” the revised rule states only that “the
Commission believes there is reasonable assurance that sufficient mined geologic repository capacity will be available
to dispose of the commercial high-level radioactive waste and spent fuel generated in any reactor when necessary.”
Compare 10 C.F.R. § 51.23 (2009) with 10 C.F.R. § 51.23 (2011).
125 See, In re Aiken County, No. 10-1050 (D.C. Cir. 2011).
126 State of Washington’s Petition for Leave to Intervene and Request for Hearing, In the Matter of U.S. Department of
Energy, ASLBP NO. 09-892-HLW-CAB04, March 3, 2010.
127 Id. at 4. The U.S. Courts of Appeals have original jurisdiction over challenges to agency action under the NWPA.
NWPA § 119.
128 State of Washington’s Petition for Leave to Intervene and Request for Hearing, In the Matter of U.S. Department of
Energy, ASLBP NO. 09-892-HLW-CAB04 (March 3, 2010) at 10-11.
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Mountain facility violates NEPA. NEPA mandates that any federal agency prepare an assessment
of the potential environmental impact before proceeding with a “major federal action significantly
affecting the quality of the human environment.”129 Petitioners argue that any decision to close
Yucca Mountain must be preceded by a NEPA assessment or an explanation of why the agency
action will not have a significant impact on the environment. Finally, petitioners argue that the
decision to terminate the Yucca Mountain project after decades of progress without articulating
“any explanation for its decision that rationally ties its choice to any specific facts” is arbitrary
and capricious under the APA and therefore unlawful.130
The D.C. Circuit initially granted the petitioners’ request to expedite the proceedings, invited the
parties to file briefs, and scheduled oral argument for September 23, 2010.131 The circuit court’s
decision to hear the claims before the NRC had completed its proceedings was unusual, as
previously noted, considering principles of judicial economy, finality, and exhaustion. Shortly
thereafter, however, the D.C. Circuit, on a motion from the Department of Justice (DOJ), reversed
course and ordered that the “cases be held in abeyance pending further proceedings before the
[NRC].”132 Specifically, the circuit court directed the parties to await the NRC’s “final decision in
its pending review of the Licensing Board’s June 29, 2010, decision.”133 However, after months
of delays, additional controversy,134 and no final decision from the NRC, the D.C. Circuit lifted
the stay on December 10, 2010, and again agreed to expedite the cases.135
In a unanimous decision, the D.C. Circuit dismissed the parties’ claims on July 1, 2011—
determining as a threshold matter that the “challenges to the ongoing administrative process are
premature.”136 Consequently, the court did not reach the merits of the issue. First, the court held
that the petitioners’ challenge to DOE’s attempt to withdraw the Yucca Mountain license
application was not yet ripe for review and therefore not within the court’s jurisdiction.137
Ripeness is a justiciability doctrine adopted “to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way by the challenging parties.”138
The court determined that the potential license withdrawal was based on “contingent” future
events, as the NRC’s review of the Board’s decision and the Board’s review of the Yucca
Mountain license remain “ongoing.”139 In addition a decision from either body could very well
resolve the petitioners’ claims in the near future.140 Thus, the court reasoned that until the Board
129 42 U.S.C. § 4332.
130 See, e.g., Motion for Preliminary Injunction, Washington v. DOE, No-10-1050 (D.C. Cir. April 13, 2010).
131 Order, In re Aiken County, No. 10-1050 (D.C. Cir. May 3, 2010).
132 Order, In re Aiken County, No. 10-1050 (D.C. Cir. July 28, 2010).
133 Id.
134 The D.C. Circuit’s order lifting the stay on the Yucca Mountain cases came shortly after the NRC announced it
would be terminating its review of the Yucca Mountain license application.
135 Order, In re Aiken County, No. 10-1050 (D.C. Cir. Dec. 10, 2010).
136 In re Aiken County, No. 10-1050 (D.C. Cir. March 22, 2011) at 16.
137 Id. at 14.
138 Id. at 8 (citing Abbott Labs v. Gardner, 387 U.S. 136, 148-49 (1967).
139 Id. at 12.
140 Id. (““Between the [NRC’s] possible review of the denial order and the [Board’s] consideration of the Yucca
Mountain license application, the only administrative outcome that will fail to resolve the issues presented in
Petitioner’s first claim would be if the Commission reviews and overturns the [Board’s] denial, permitting the DOE to
(continued...)
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either grants or denies the license application, or the NRC reaches a decision overturning the
Board’s decision denying the license withdrawal, there is no concrete agency action to challenge.
Second, the D.C. Circuit held that the petitioners’ challenge to the administration’s decision to
“unilaterally and irrevocably terminate the Yucca Mountain repository process” was “simply not
reviewable by this court.”141 The court determined that DOE’s “publicly stated desire and
intention to abandon the Yucca Mountain repository,” did not constitute final agency action as
required for judicial review under the Administrative Procedure Act.142 Additionally, the APA
provides for review of an agency’s failure to act only where a “plaintiff asserts that an agency
failed to take a discrete agency action that it is required to take.”143 The court determined that
DOE had not yet failed to take an action it was required to take, and given the lack of finality in
the administrative process, review of any proposed decision to abandon the Yucca Mountain
facility was premature.
Although the D.C. Circuit dismissed the petitioner’s claims—claims that focused primarily on the
actions of the President and DOE144—the opinion will likely have two significant consequences
on future NRC actions. First, the opinion noted that continued delay by NRC in reaching a
decision on the license withdrawal would not “insulate” the agency’s inaction from judicial
review. Thus, the court noted that should the NRC fail to act within the express three-year time
frame established under the NWPA,145 then the petitioners would have a new cause of action to
“compel” agency action “unreasonably delayed.”146 Although not setting a specific date beyond
which the NRC would be in violation of the NWPA, the court did note that regardless of whether
the three-year review period was measured from the date the license application was submitted or
the date it was docketed, “in either case, the deadline for the [NRC] to act is at hand.”147
Accordingly, if NRC does not take action on the Yucca Mountain license in the near future, the
D.C. Circuit seems willing and able to reconsider the issue.
Second, the opinion expressly stated that the NRC “maintains a statutory duty” to continue the
review of the Yucca Mountain license application.148 Although the court took notice of the fact
(...continued)
withdraw its license application. At that point, petitioners would have the opportunity to demonstrate whether the
effects of the DOE action are ‘felt in a concrete way by the challenging parties.’”) (citations omitted).
141 Id. at 14.
142 Id.
143 Id. at 15 (citing Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)(emphasis in original)).
144 In a concurring opinion, Judge Brown noted that the petitioners’ focus on the President and DOE may have been
counterproductive: “It is arguable the NRC has abdicated its statutory responsibility under the NWPA.... Despite
months of extensive briefing and protracted questioning at oral argument, Petitioners still see only the President and his
administration obstructing their path to judicial review.... Such stubbornness may snatch defeat from the jaws of
victory.” Id. at 1 (Brown, J., concurring). Judge Kavanaugh also issued a concurring opinion that focused on
presidential control of the executive branch and highlighted that fact that the existing statutory framework gives the
NRC, rather than the President, “the final word in the Executive Branch on whether the Executive Branch may
terminate the Yucca Mountain project.” Id. at 2 (Kavanaugh, J., concurring).
145 The NWPA states that, absent an extension, “the [NRC] shall issue a final decision approving or disapproving the
issuance of a construction authorization not later than the expiration of 3 years after the date of the submission of such
application....” NWPA § 114(d).
146 In re Aiken County, No. 10-1050 (D.C. Cir. March 22, 2011) at 13.
147 Id. at 12.
148 Id. at 16. The language would likely qualify as dicta as it was not necessary to the ultimate holding.
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that petitioners had pointed “to evidence that the [NRC] has suspended the [Board’s] review,” the
court clearly stated that “the NWPA requires the [NRC] to review the application, and therefore
we must assume that the [NRC] will comply with its statutory mandate.”149 As will be discussed
in the next section, NRC Chairman Gregory Jaczko has indeed already taken significant steps to
terminate all NRC license review activities. Such action could reasonably be characterized as
contrary to the D.C. Circuit’s interpretation of the NWPA.
Suspending the Nuclear Waste Fund Fee
Shortly after the D.C. Circuit lifted its stay on the license withdrawal claims, the court also
dismissed a Yucca Mountain-related case brought by the National Association of Regulatory
Commissioners (NARUC) and the Nuclear Energy Institute (NEI).150 NARUC and NEI had filed
a claim asking the court to order Secretary Chu to conduct the required annual assessment of the
Nuclear Waste Fund fee and suspend collection of the fee pending that assessment.151 Nuclear
power providers have collectively paid approximately $750 million per year in fees to the fund,
which currently has an approximate balance of $24 billion.
Under the NWPA, DOE was authorized to enter into contracts with nuclear power providers to
gather and dispose of nuclear waste in exchange for payments by the providers into the statutorily
established Nuclear Waste Fund (NWF).152 However, the Secretary is required to “annually
review” the adequacy of the fee to ensure it provides “sufficient revenues to offset costs” incurred
as a result of nuclear waste disposal activities.153 If the Secretary finds that “insufficient or excess
revenues are being collected … the Secretary shall propose an adjustment to the fee to insure(sic)
full cost recovery.”154 At the time the claim was filed, DOE had not conducted a fee assessment
since FY2008. NARUC and NEI argued that given the Administration’s attempts to terminate the
Yucca Mountain facility, “there is no current basis to judge the adequacy of the fee to cover future
costs because the method of disposal and its life-cycle costs are unknown.”155 Thus, Congress
intended that “[i]f no fee can be justified based on record evidence, no fee can be charged.”156
However, DOE subsequently released its most recent assessment of the NWF fee and the court
dismissed the claim as moot, but suggested that the parties could now challenge the new fee
assessment.157
149 Id. at 11.
150 National Association of Regulatory Utility Commissioners v. DOE, 2010 U.S. App. LEXIS 25579 (D.C. Cir. Dec.
13, 2010).
151 Id.
152 See, CRS Report R40996, Contract Liability Arising from the Nuclear Waste Policy Act (NWPA) of 1982, by Todd
Garvey.
153 NWPA § 302(a)(4).
154 Id.
155 Final Initial Brief of Petitioner, National Association of Regulatory Commissioners v. DOE, No. 10-1074 (D.C. Cir.
Oct. 18, 2010) at 7.
156 Id. at 15.
157 National Association of Regulatory Utility Commissioners v. DOE, 2010 U.S. App. LEXIS 25579 (D.C. Cir. Dec.
13, 2010).
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NRC Uses Budget Guidance to Halt Yucca Mountain
License Review
Controversy over the Yucca Mountain license application intensified in October 2010, when NRC
Chairman Gregory Jaczko directed NRC staff to use funds appropriated under the FY2011
Continuing Appropriations Act (CR) to close down the agency’s review of the Yucca Mountain
license application.158 With no final action on a full FY2011 budget, Congress passed the CR to
extend appropriations across the federal government “at a rate for operations as provided in the
applicable appropriations Acts for fiscal year 2010 and under the authority and conditions
provided in such Acts.”159 In an October 4, 2010, memorandum, NRC staff were instructed to
continue their Yucca Mountain activities “in accordance with the Commission’s decisions on the
FY 2011 budget using available Nuclear Waste Fund resources during the CR.”160 Thus, NRC
staff were directed to follow the agency’s FY2011 budget request rather than enacted FY2010
appropriations. Noting that the Senate Appropriations Committee and the House Appropriations
Energy and Water Development Subcommittee had approved the NRC’s 2011 budget request,
Chairman Jaczko justified the budget guidance as “consistent with NRC’s obligation to spend
funds prudently under a Continuing Resolution pending final budget by the Congress.”161
Although Chairman Jaczko has suggested that a closure of NRC license review activities would
eventually include the Board’s license review, the Board recently denied a DOE motion to stay
the licensing proceedings and expressed a desire to “move this proceeding forward as
expeditiously as circumstances permit.”162
The NRC’s FY2011 budget request, which anticipated DOE’s attempt to withdraw the license
application, directed that “[u]pon the withdrawal or suspension of the licensing review, the NRC
would begin an orderly closure of the technical review and adjudicatory activities and would
document the work and insights gained from the review.”163 Accordingly, the agency requested
only $10 million to “support work related to the orderly closure of the agency’s Yucca Mountain
licensing support activities.”164
Two fellow NRC commissioners formally opposed the chairman’s October 4 budget guidance as
inconsistent with the CR.165 Commissioner Ostendorff argued that the NRC “should continue to
158 Memorandum to Office Directors and Regional Administrators from J.E. Dyer, Chief Financial Officer, Nuclear
Regulatory Commission, Guidance Under A Fiscal Year 2011 Continuing Resolution (Oct. 4 2010) (hereinafter “NRC
Budget Guidance”)
159 P.L. 111-242, 111th Cong. (2010) (extended by P.L. 111-322).
160 NRC Budget Guidance, at 2.
161 Letter from Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, to Congressman Joe Barton (Oct. 27,
2010).
162 Memorandum and Order, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04 (February
25, 2011).
163 Nuclear Regulatory Commission FY2011 Congressional Budget Justification, NUREG-1100 Vol. 26 (Feb. 2010) at
95. Available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1100/v26/sr1100v26.pdf.
164 Id.
165 In addition to the two sitting Commissioners, former Nuclear Regulatory Commission Chairman Dale E. Klein, who
was a sitting member of the Commission during the FY2011 budget discussions, also opposed the Chairman’s budget
guidance. NRC Chairman Klein Rebuffs Jaczko Yucca Shut-Down Alibi, Nuclear Townhall (Oct. 29, 2010) available at
http://www.nucleartownhall.com/blog/ex-nrc-chairman-klein-rebuffs-jaczko-yucca-shut-down-alibi/.
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follow the Commission’s direction in the FY2010 budget as authorized and appropriated by
Congress, rather than change course as suggested in the Continuing Resolution guidance
memorandum.”166 Commissioner Svinicki called the chairman’s guidance “grossly premature,” as
the FY2011 budget request had made clear that the NRC would only begin its orderly closure of
the Yucca Mountain review “upon the withdrawal or suspension of the licensing review.”167 As
the license had not yet been withdrawn, Svinicki argued that any decision to terminate the license
proceeding would be inconsistent with the language of the budget justification.
Congress subsequently approved the NRC’s FY2011 budget proposal in passing the Full Year
Continuing Resolution Act of 2011.168 The measure impliedly provided the NRC, through
congressional acquiescence to the NRC budget request, with the requested $10 million in funds
for the “orderly closure” of the Yucca Mountain license review. Congressional approval of the
NRC’s FY2011 budget request, therefore, seems to effectively sanction Chairman Jaczko’s
decision to begin the termination of the license review. Accordingly, Congress has likely
appropriated funds to continue the shutdown of Yucca Mountain license review activities.
However, debate over whether the Chairman’s budget guidance under the earlier CR’s leading up
to the Full Year Continuing Resolution Act is continuing.
Whether the NRC had the authority to utilize FY2011 CR funds in terminating its review of the
Yucca Mountain license application remains unclear. Much of the ambiguity involved in the
dispute arises from the fact that the NRC generally receives lump-sum, rather than specific,
appropriations.169 However, in determining whether the NRC appropriately used FY2011 CR
funds to terminate its review of the Yucca Mountain license, two questions are raised. First, did
the CR allow the NRC to follow its FY2011 budget request or was the Commission instead bound
by FY2010 enacted appropriations? Second, if the NRC was bound by FY2010 enacted
appropriations, could the Commission use FY2010 funds to close down the review of the Yucca
Mountain license?
The CR clearly made funds available pursuant to the rates and restrictions of enacted FY2010
appropriations, unless otherwise stated, through March 18, 2011.170 However, OMB Bulletin No.
10-03 on the apportionment of CR funds stated that “[i]f either the House or Senate has reported
or passed a bill that provides no funding for an account at the time the CR is enacted, this
automatic apportionment does not apply to that account.”171 The Senate reported a version of the
Energy and Water appropriations bill that, though making no specific mention of the Yucca
Mountain license review, could be interpreted as incorporating the NRC FY2011 budget request,
which only included funds for an orderly closure of the NRC’s review of the license
166 Memorandum from Commissioner William C. Ostendorff, Disagreement With Staff Budget Guidance Under Fiscal
Year 2011 Continuing Resolution (Oct. 8, 2010).
167 Letter from Kristine L. Svinicki, Commissioner, Nuclear Regulatory Commission, to Congressman Joe Barton
(Nov. 1, 2010).
168 P.L. 112-10 112th Cong (2011).
169 Specific, or line-item, appropriations detail the amount appropriated for each purpose whereas a lump-sum
appropriation covers a “number of specific programs, projects, or items.” U.S. Government Accountability Office,
Principles of Federal Appropriations Law, Vol. II: 6-5 (2006).
170 Although the initial CR only authorized funds through December 3, 2010, it was extended to March 4, 2011, and has
now been extended to March 18, 2011. P.L. 112-4, 112th Cong. (2011).
171 Office of Management and Budget, OMB Bulletin No. 10-03, Apportionment of the Continuing Resolution(s) for
Fiscal Year 2011 (Sept. 30, 2010).
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application.172 Thus, under the implementation guidance provided by OMB, it could be argued
that the CR had not provided continued funds for the Yucca Mountain license review, as the
Senate had arguably expressed an intent not to fund the license review in the future.
However, considering Congress had yet to expressly defund the Yucca Mountain license review, it
is also possible that the NRC was obligated to follow its FY2010 enacted appropriations. Even so,
the “rate for operations” and the “authority and conditions” provided in the NRC’s lump-sum
FY2010 enacted appropriations remain unclear.173 Both the NRC budget request and the House
report associated with the FY2010 Energy and Water Development and Related Agencies
Appropriations bill contained language specifically allocating funds to “support the NRC’s
review of the [DOE’s] licensing application to construct and operate a permanent geologic
repository at Yucca Mountain.”174 The Senate report and the Conference report, on the other hand,
were silent on the NRC’s license review.175 However, the Joint Explanatory Statement
accompanying the Conference report expressly provides that the language of the House and
Senate reports “should be complied with unless specifically addressed to the contrary in the
conference report.”176 Accordingly, it could be argued that the language in the House report that
expressed Congress’s intent to appropriate funds for the continued review of the Yucca Mountain
license was incorporated by the conference report. In contrast, Chairman Jaczko argued that
“neither the text of the FY 2010 [NRC appropriation bill] and its underlying committee reports,
nor the fiscal year 2011 [CR] provide the Commission with express direction on how it is to
expend its appropriation … for Yucca Mountain activities.”177 In any case, specific restrictions on
lump-sum appropriations “contained in the agency’s budget request or in legislative history are
not legally binding on the department or agency unless they are” incorporated into the statutory
language of the appropriation act.178
If DOE was bound by enacted FY2010 appropriations, the additional question arises of whether
general principles of appropriations law allowed the NRC to use funds arguably made available to
continue the licensing proceeding to instead terminate the license review. Generally speaking,
agencies may use appropriated funds only for the purpose for which they were appropriated.179
This principle has been codified in 31 U.S.C. § 1301(a), which states: “[a]ppropriations shall be
applied only to the objects for which the appropriations were made except as otherwise provided
172 S.Rept. 111-295. It is also unclear whether the Yucca Mountain license review constitutes an “account” under the
OMB Apportionment Bulletin.
173 P.L. 111-85, 123 Stat. 2877-2878. The bill appropriated $1.56 billion “for necessary expenses of the Commission
…” and $10.8 million for “necessary expenses of the Office of Inspector General.”
174 Nuclear Regulatory Commission Performance Budget Fiscal Year 2010, NUREG-1100, Vol. 25 (May 2009);
H.Rept. 111-203.
175 S.Rept. 111-45; H.Rept. 111-278.
176 H.Rept. 111-278 (“Report language included by the House which is not contradicted by the report of the Senate or
the conference … is approved by the committee of conference.”)
177 Letter from Gregory B. Jaczko, Commissioner, Nuclear Regulatory Commission, to Congressman Joe Barton (Oct.
27, 2010).
178 U.S. Government Accountability Office, Principles of Federal Appropriations Law, Vol. II: 6-6 (2006)(hereinafter
Red Book). The Supreme Court has made clear that statements in committee reports associated with appropriations bills
do not have the force of law. See, American Hospital Assn. v. NLRB, 499 U.S. 606 (1991); Lincoln v. Vigil, 508 U.S.
182 (1993). See also, LTV Aerospace Corp., 55 Comp. Gen. 307, 319 (1975) (“when Congress merely appropriates
lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does
not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to
how the funds should or are expected to be spent do not establish any legal requirements on federal agencies.”).
179 Red Book, Vol. I: 4-6 (2004).
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by law.”180 However, because of the nature of the lump-sum appropriation made available to the
NRC, it is difficult to determine the specific purposes, if any, for which funds were appropriated.
Indeed, allocating lump-sum appropriations generally lies within the discretion of the agency, as
“the very point of a lump-sum appropriation is to give an agency the capacity to adapt to
changing circumstances and meet its statutory responsibilities in what it sees as the most effective
or desirable way.”181 Although legislative history and the 2010 NRC budget request may have
suggested some understanding that a portion of the NRC appropriated funds would go toward
funding the agency’s review of the Yucca Mountain license application, there was no specific
appropriation for the license review in the NRC’s FY2010 appropriations.
Notwithstanding uncertainty over the specific nature of NRC appropriations, an agency generally
may not use money appropriated for the implementation of a “mandatory” program to instead
terminate that program.182 In contrast, appropriated funds may be used to terminate a program if
the program is not mandatory, and “the termination would not result in curtailment of the overall
program to such an extent that it would no longer be consistent with the scheme of applicable
program legislation.”183 The recent decision by the Board could be read as interpreting the NRC’s
review of the Yucca Mountain license as mandatory. For example, the Board specifically held that
the NWPA “mandates progress toward a merits decision by the Nuclear Regulatory
Commission.”184 Thus, the NRC’s final decision on DOE’s license withdrawal, and the nature of
the statutory obligations created under the NWPA, will likely have an impact on whether NRC’s
use of funds was authorized.185
In response to the controversy surrounding Chairman Jaczko’s budget guidance, the NRC
Inspector General conducted a formal investigation into whether the Chairman exceeded his
authority in terminating the NRC’s review of the Yucca Mountain license application.186 The
Inspector General’s report concluded that the Chairman’s actions were supported by the NRC
general counsel and consistent with the Chairman’s budget execution authority; OMB guidance;
the Administration’s decision to terminate the Yucca Mountain project; and the NRC’s FY2011
180 31 U.S.C. § 1301(a).
181 Lincoln v. Vigil, 508 U.S. 182, 192 (1993).
182 Red Book, Vol. I: 4-17-18 (2004).
183 Id.
184 Memorandum and Order, In the Matter of U.S. Department of Energy, ASLBP No. 09-892-HLW-CAB04, June 29,
2010.
185 A similar factual scenario from the late 1970s and early 1980s suggests that congressional intent plays an integral
role in determining whether an agency can use appropriated funds to terminate a program. Congress authorized the
design, construction, and operation of the Clinch River Breeder Reactor in 1970. Until FY1983, the program had been
funded as part of a lump sum appropriation, although “amounts intended for the project [had] been indicated in
committee reports accompanying the appropriation act.” On three instances during this period the Comptroller General
denied requests from DOE’s predecessor, the Energy Research and Development Administration (ERDA),to use
appropriated funds to terminate the program. Congress’s position on the project “changed substantially,” however, in
FY1994. Legislative history reflected that no funds were designated for the project and a continuing resolution directed
that DOE not “undertake any new activities relating” to the reactor. Following passage of the continuing resolution,
DOE again requested authority to use previously appropriated funds to terminate the reactor project. Noting that “the
funding situation was very different at the time we issued our earlier decision,” the Comptroller General determined
that DOE was not “unreasonable in concluding that further funding for the project [was] not likely to be forthcoming.
We think this provides the Department with a legal basis for terminating the project.” Government Accountability
Office, Decisions of the Comptroller General, 63 Comp. Gen. 75 (1983). See also, Red Book Vol. I 4-18 (2004).
186 NRC IG Report, supra note 111.
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budget policy decisions.187 However, the Inspector General also concluded that the Chairman was
not “forthcoming” with all Commissioners with respect to the breadth of the close-out
activities.188 The report found that the Chairman had “strategically provided three of the four
commissioners with varying amounts of information about his intention to proceed to closure.”189
However, as discussed earlier, the D.C. Circuit has expressly interpreted the NWPA as requiring
the NRC to continue license review activities. Thus, whereas the Chairman may use funds to take
steps towards terminating license review activities as a matter of appropriations law, the
implementation of a full shutdown of license review activities may still run afoul of the statutory
mandates of the NWPA.
Congressional Reaction to Proposed Termination of
the Yucca Mountain Facility
Congress has been relatively active in response to the Obama Administration’s proposed
termination of Yucca Mountain, DOE’s motion to withdraw the license application, and the
NRC’s recent decision to cease review of the license application. Although much of the resistance
to the shutdown has come from the South Carolina and Washington delegations, a growing
number of Members have expressed their opposition to the Obama Administration’s plans. In July
2010, 91 Members of Congress signed a letter to Secretary Chu asking that DOE “halt all actions
to dismantle operations at Yucca Mountain” until the NRC and the D.C. Circuit resolve the
license dispute.190 The letter made clear the Members’ position that DOE had “overstepped its
bounds” and “ignored congressional intent” in attempting to terminate the Yucca Mountain
facility.191
The NRC’s delay in coming to a final decision on DOE’s motion to withdraw the Yucca Mountain
license application as well as the agency’s decision to halt the license review has also generated a
significant congressional response. The then-ranking Members of the House Select Committee on
Energy Independence and Global Warming, House Energy and Commerce Committee, House
Science and Technology Committee, and House Natural Resources Committee expressed their
concern over Chairman Jaczko’s decision to “unilaterally” halt the NRC’s review of the Yucca
Mountain license in a public letter to the Commission.192 The letter called Chairman Jaczko’s
decision to base budget guidance on the FY2011 budget request rather than enacted FY2010
appropriations “suspect.”193 The then-ranking Member of the House Appropriations Committee as
well as six members of the House Appropriations Subcommittee on Energy and Water
Development—the Subcommittee that controls DOE and NRC appropriations—told Chairman
Jaczko that his actions “may seriously erode the NRC’s relationship with this subcommittee.”194
187 Id. at 2.
188 Id. at 44.
189 Id.
190 Letter from Senator Patty Murray et al. to Stephen Chu, Secretary of Energy (July 6, 2010).
191 Id.
192 Letter from Representative Jim Sensenbrenner et al. to Gregory Jaczko, Commissioner, Nuclear Regulatory
Commission (Oct. 13, 2010).
193 Id.
194 Letter from Representative Jerry Lewis to Gregory Jaczko, Commissioner, Nuclear Regulatory Commission (Oct.
(continued...)
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In a strongly worded letter, the Members threatened increased oversight of the NRC, concluding
with the warning: “If you continue to shut down the Yucca Mountain license application, which
can only be seen as a partisan act, we will reconsider the flexibilities which the NRC has long
enjoyed due to its reputation as an independent body.”195
Other Members of Congress asked the Inspector General of the Nuclear Regulatory Commission
to “convene a formal investigation into the Chairman’s recent actions to shut down the
project.”196 As noted previously, the NRC Inspector General released his official report on June 6,
2011.197 The scope of the investigation included a consideration of the Chairman’s decision to
terminate all Yucca Mountain license review activities; the delay in the NRC’s review of the
Board’s decision on DOE’s authority to withdraw the Yucca Mountain license application; and the
“impact the Chairman’s management style has on the collegial functioning of the NRC
Commission.”198 The report did not find that the Chairman had violated any laws or acted
illegally in any way. The report concluded that the Chairman’s direction to NRC staff to begin
closure of the Yucca Mountain license review was within his authority and that the Chairman has
not improperly delayed a final NRC decision on the DOE license withdrawal. However, the
report did make clear that the Chairman had acted to “strategically” control information
distribution to the both the other Commissioners and the NRC staff.199 The report noted that
“because [the Commissioner] acts as the gatekeeper to determine what is a policy matter versus
an administrative manner, and manages and controls information available to the other
commissioners, they are uncertain as to whether they are adequately informed of policy matters
that should be brought to their attention.”200
Additionally, the 112th Congress has held a number of hearings that have focused on the current
Yucca Mountain controversy.201 For example, the House Energy and Commerce Subcommittee on
Environment and the Economy and the Subcommittee on Energy and Power have held a series of
hearings on the NRC’s shutdown of the license review, the finding of the NRC Inspector General
report, and NRC staff perspectives on recent NRC actions.202 These hearings, in conjunction with
the findings of the NRC Inspector General report, have generally portrayed an internal
environment at the NRC in which some Commissioners and staff have been frustrated by many of
the actions taken by Commissioner Jaczko, and appear to be discouraged by the Chairman’s
seemingly unilateral decision-making process.
(...continued)
20, 2010).
195 Id.
196 Letter from Congressman Fred Upton and Congressman Ed Whitfield to Hubert T. Bell, Inspector General, Nuclear
Regulatory Commission (Oct. 19, 2010).
197 NRC IG Report, supra note 111.
198 Id. at 2.
199 Id. at 44.
200 Id. at 45-46.
201 In addition, the majority staff of the House Science, Space and Technology Committee released a lengthy report
entitled Yucca Mountain: The Administration’s Impact on U.S. Nuclear Waste Management Policy that was critical of
the Administration’s policy shift. Available at: http://science.house.gov/sites/republicans.science.house.gov/files/
documents/Letters/Yucca%20Mountain%20-
%20The%20Administration%27s%20Impact%20on%20U.S.%20Nuclear%20Waste%20Management%20Policy%20F
ULL.pdf.
202 The Role of the Nuclear Regulatory Commission in America’s Energy Future: Hearing Before the H. Subcommittee
(continued...)
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The House of Representatives has also sought to utilize appropriations to prevent the NRC from
terminating its review of the Yucca Mountain license application. For example, the House
Appropriations Committee approved a bill on June 15, 2011, that would restore funding for the
Yucca Mountain repository.203 The bill would provide $25 million to DOE to “carry out the
purposes of the Nuclear Waste Policy Act” and $10 million to NRC to “continue the Yucca
Mountain license application.”204 The bill also expressly prohibits appropriated funds from being
used to “conduct closure of adjudicatory functions, technical review, or support activities
associated with the Yucca Mountain geologic repository license application until the Nuclear
Regulatory Commission reverses [the Board’s decision], or for actions that irrevocably remove
the possibility that Yucca Mountain may be a repository option in the future.”205
Finally, three resolutions have been introduced in the House that would express support for Yucca
Mountain as the “nation’s primary permanent nuclear waste storage site;”206 express disapproval
of the DOE motion to withdraw the Yucca Mountain license application;207 and condemn the
NRC’s decision to halt its review of the Yucca Mountain license application.208 A Resolution of
Inquiry has also been introduced that would ask the President and Secretary of Energy to provide
the House of Representatives with documents relating to the proposed termination of the Yucca
Mountain program.209 Other bills have also been introduced that would limit DOE’s ability to
collect NWF fees.210
For a description of other legislative proposals pertaining to the Yucca Mountain project and the
NWPA, see CRS Report RL33461, Civilian Nuclear Waste Disposal, by Mark Holt.
The Future of Yucca Mountain
While the result of the ongoing dispute over the attempted termination of the Yucca Mountain
program remains uncertain, the change of control in the House of Representatives could have a
significant impact on the ultimate fate of the program. A number of leading House Republicans
have voiced strong opposition to abandoning the Yucca Mountain repository. For example, the
chairmen of a number of important committees—including the House Budget Committee, House
Committee on Appropriations, House Committee on Appropriations Subcommittee on Energy
and Water, House Natural Resources Committee, and House Committee on Science, Space, and
Technology—have all opposed the Administration’s attempts to terminate the Yucca Mountain
(...continued)
on Energy and Power and the Subcommittee on Environment and the Economy, 112th Cong. (May 4, 2011); The NRC
Inspector General Report on the “NRC Chairman’s Unilateral Decision to Terminate NRC’s Review of the DOE Yucca
Mountain Repository License Application”: Hearing Before the H. Subcommittee on Environment and the Economy,
112th Cong. (June 14, 2011); NRC Repository Safety Division, Staff Perspective on Yucca License Review: Hearing
Before the H. Subcommittee on Environment and the Economy, 112th Cong. (June 24, 2011).
203 H.R. 2354 112th Cong. (2011)
204 Id.
205 Id. at § 604.
206 H.Res. 1123 111th Cong. (2010).
207 H.Res. 1209 111th Cong. (2010).
208 H.Res. 1732 111th Cong. (2010).
209 H.Res. 1466 111th Cong. (2010).
210 H.R. 2372 111th Cong. (2010); S. 861 111th Cong. (2010).
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project. Additionally, Representative Darrell Issa, chairman of the House Committee on Oversight
and Government Reform, opposes the Administration’s position on Yucca Mountain.211 Speaker
of the House John Boehner has also indicated his interest in reviving the Yucca Mountain
program, arguing that “[w]e’ve invested tens of billions of dollars in a storage facility that’s as
safe as anything we’re going to find.”212 Consequently, the Yucca Mountain dispute may not only
play out legally before the NRC and in the D.C. Circuit, but also politically in the House of
Representatives, potentially in the form of appropriations disputes and oversight hearings.
Author Contact Information
Todd Garvey
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174
211 See, Representative Darrell Issa, Nuclear Power and Our Energy Future, The San Diego Union-Tribune (April 18,
2010) (“Despite a commitment for increasing loan guarantees to ramp up the development of new nuclear plants, the
administration’s determination to shutter the proposed nuclear waste repository at Yucca Mountain effectively
jeopardizes this goal.”).
212 Statement by Representative John Boehner to the City Club of Cleveland (Aug. 24, 2010).
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