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OSTENDORFF IN THE YUCCA VORTEX: NRC VOTE ON THE VERGE

When newly confirmed NRC Commissioner George Apostolokis cited a conflict emanating from prior work for the Sandia National Laboratories and abruptly exited stage right in mid-July from the Commission’s looming vote over the Atomic Safety Licensing Board’s rejection of the Energy Department’s Yucca Mountain license application withdrawal, all eyes turned to the recused Commissioner’s freshman colleague William Ostendorff.

With the Commission now levelized at two Democrats and two Republicans — and conventional wisdom suggesting that incumbent Commissioner Kristine Svinicki will negate a likely vote by Chairman Gregory Jaczko to overturn the lower panel’s ruling — Ostendorff has emerged as the pivotal vote on the matter regardless of what fellow Commissioner William Magwood, a Democratic appointee, decides to do.

According to a mix of NRC observers a vote on the issue ranges from either "imminent" to "before Congress returns in September."

Ostendorff’s vote can either ensure a 2-2 Commission stalemate or 3-1 majority vote to sustain the ASLB decision — or result in overturning the board if both Ostendorff and Magwood side with Jaczko — a former staffer for Yucca opponent, Senate Majority Leader Harry Reid.

For Ostendorff, the stakes couldn’t be higher.  A decision by the Commission to overturn the ASLB and allow a DOE license withdrawal could be a fatal blow to the two-decades-old $10 billion national repository program. The Commission action will directly  impact both a legal challenge to the Obama Administration’s termination effort and Congressional initiatives to revive the program.

Ostendorff’s vote is also complicated by political realities. He represents a Republican-blessed appointment to serve out the term of former NRC Chairman Dale Klein, a Yucca Mountain proponent who has been openly critical of the Obama Administration’s handing of Yucca Mountain.  With the term expiring in less than a year — June 30, 2011 — Ostendorff’s chances for re-appointment would be clouded by a vote undermining the ASLB’s unanimous decision given outspoken  Republican support for an increasingly bipartisan Congressional campaign to continue the program.

"Based on his Yucca vote, Ostendorff will either be a hero or a heretic," said one Capitol Hill observer.

Ostendorff’s decision is made even more ticklish by his February 9, 2010, Senate Committee on Environment and Public Works confirmation hearing.  In response to a question — posed by the Committee’s chair for Senator Reid — on whether Ostendorff would "second guess the Department of Energy’s decision to withdraw the license application for Yucca Mountain from NRC’s review", the prospective Commissioner said: "No."

In an early August decision declining to disqualify himself from consideration of the pending Yucca Mountain issue, Ostendorff offered a few clues:

"At the time of Senator Boxer’s question, I had only limited knowledge and appreciation for the matters at issue as part of the licensing proceeding, as well as only limited familiarity with DOE’s latest efforts with regard to that application. I certainly had no knowledge of the legal issues pertaining to the withdrawal of the application.

"I understood Senator Boxer’s question to ask whether or not I would take a position on DOE’s decision to seek withdrawal of the application as a matter of policy.  My belief at the time was, and still is, that it was not my place to question the decision made by the Secretary of Energy to  pursue such a withdrawal. 

"It was not my belief, nor do I think that any reasonable person could conclude as such in light of all the facts and circumstances, that Senator Boxer was asking for my opinion as to whether the application could be withdrawn as a matter of law. It was simply not conceivable to me that the Senator would ask me to provide an on-the-spot opinion on a legally and technically complex subject with simply a ‘yes or no’ answer, or to opine on the matter without having been given sufficient opportunity to understand the extensive history or complicated technical or legal issues."

Colleagues who have been associated with Ostendorff — during his tenures as principal deputy administrator for the National Nuclear Security Administration and Counsel and Staff Director for the Strategic Forces Subcommittee of the House Armed Services Committee — say they would be surprised by an Ostendorff decision to reverse the ASLB finding.  Speaking of the buttoned-down former nuclear. submarine commander who has been known to sport an atomic tie, one former colleague said:  "He is a man of principle who understands the rule of law and respects subordinates. He will do the right thing."

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