NRC COMMISSIONER OPTS OUT OF YUCCA; ONE DOWN, TWO TO GO?
By Nuclear Townhall Staff
In a development with profound implications for the direction of the U.S. Nuclear Regulatory Commission’s (NRC) ongoing review of the recent Atomic Safety Licensing Board (ASLB) rejection of the U.S. Department of Energy’s Yucca Mountain license application withdrawal, freshman Commissioner George Apostolakis has filed a Notice of Recusal with respect to any "adjudicatory proceeding" involving the "application for authorization to construct a high-level waste repository at Yucca Mountain."
NRC observers said that — in addition to apparently removing a key swing vote on the ASLB issue — the action could buoy a current challenge by Yucca Mountain proponents to force recusal or disqualification of two of Apostolakis’ new Commission colleagues — William Magwood and William Ostendorff. It also elevates an ongoing swirl over the objectivity of Chairman Gregory Jaczko, who previously worked in opposition to Yucca Mountain when he was a staff member in the U.S. Senate for Harry Reid (D-NV), the lead opponent of the project. Jaczko recused himself from Yucca Mountain deliberations during his initial year on the Commission.
In his July 15th Notice of Recusal, Apostolakis said that his decision was premised on the fact he "chaired the Independent Performance
Assessment Review (IPAR) Panel, which was tasked by Sandia National Laboratories (SNL), the U.S. Department of Energy’s Lead Laboratory for Repository Systems, to conduct a high-level review for SNL and its senior management on the adequacy of the long-term performance assessment for the proposed Yucca Mountain repository."
The Commissioner said the recusal was based entirely on his Sandia involvement and was made "prior to and without consideration of the
unrelated motion for recusal/disqualification that was filed by the State of Washington, State of South Carolina, Aiken County, South Carolina, and White Pine County, Nevada, on
July 9, 2010.
The motion suggests that the NRC can’t be objective because three of its members have already voiced their opposition to Yucca.
The three NRC Commissioners in question — Apostolakis, Magwood and Ostendorff — answered "No," during their confirmation hearings in February 2010 when they were asked if they would oppose DOE’s request that its Yucca license be withdrawn (DOE made that request a week before the hearing).
They were questioned by Sen. Barbara Boxer, (D-Calif.), chairman of the Senate Environment and Public Works Committee. Boxer said she was asking the question on behalf of Reid. When each Commissioner replied that he would not block the effort to halt the Yucca project, she told them, that Reid, "will be very pleased."
But the motion argues that it was that exchange that demonstrates that three of the commissioners are biased, and that the political considerations of Reid and the administration have tainted the NRC deliberative process.
"The standard for recusal or disqualification is met in this case," the motion states. "The extra-judicial testimony of Commissioners Magwood, Apostolakis, and Ostendorff, made in advance and as a matter of confirmation that they would not ‘second guess’ any DOE decision to withdraw the Yucca Mountain license application, can be reasonably interpreted to demonstrate that each have, in fact, prejudged this matter should the Commission choose to review the ASLB’s decision."
The motion specifically cites the exchange with Boxer at the confirmation hearing, and her statement that Reid "will be very pleased" as, "further indication that the questioning was intended to establish that the new Commissioners would not stand in the way of DOE’s motion to withdraw. No other meaning was intended or understood, nor can any other meaning be inferred."
Since the new Commissioners had not yet taken office when they made the statements, their opinions were obviously formed on “‘some basis other than what the judge has learned from his participation in the case.”
The NRC has invited parties involved in the Yucca dispute to submit arguments to determine, "whether the Commission should review, and reverse or uphold, the [Atomic Safety and Licensing] Board’s decision." Final responses are due on Monday, July 19.
See the video of the hearing below or click here if you are unable to view it: