On February 22, 2010, just 21 days after the U.S. Department of Energy formally announced it would suspend the Yucca Mountain national nuclear spent fuel and high-level waste repository project in Nevada, the first of a bevy of lawsuits seeking to overturn the action was announced by three state of Washington businessmen.
Just nine days later, on March 3, the Department filed a license withdrawal request with the U.S. Nuclear Regulatory Commission (ASLB). A month later, on April 6, the NRC’s Atomic Safety Licensing Board – in the face of mounting legal challenges and interventions relevant to the DOE action– announced it was freezing consideration of the matter to await guidance on the matter from U.S. Court of Appeals proceedings. Less than 17 days later, on April 23 – without waiting for their newest colleague, Commissioner George Apostolakis, who was scheduled to be sworn in just hours later – the Commission vacated the ASLB decision and ordered the Board to render a decision on the DOE withdrawal request in 39 days or less (June 1).
Twenty-eight days after the June 1 deadline, the ASLB issued a unanimous decision rejecting DOE’s license withdrawal request. Less than 24 hours later, in an unusual action, the Commission set immediate ground rules for an appeal of the decision requesting briefs from interested parties by July 9, just nine days later. On July 15, just six days after parties to the proceeding filed a motion seeking the disqualification of three commissioners based on their Senate confirmation hearing testimony earlier in the year, freshman Commissioner Apostolakis recused himself citing other considerations.
In a process that has been defined by days and hours for the most part, it is now 86 days and counting since the ASLB’s June 29th ruling and the initiation of the Commission’s review of the lower panel’s decision. The full Commission has now exceeded the 39 days they initially provided to the ASLB to sift through considerably more complicated issues. Meanwhile the U.S. Court of Appeals , which was scheduled to begin oral arguments on September 23 on the mountain of legal contentions now filed in the matter, has put a hold on the proceedings awaiting a Commission determination. In just six days, the Yucca Mountain project will be in purgatory with the expiration of the fiscal year, a likely continuing resolution and given a DOE edict that it will terminate all remaining employees in the Office of Civilian Radioactive Waste Management on September 30.
The Commission’s delay with regard to an ASLB verdict has lead to much conjecture in Capitol Hill, legal and nuclear policy circles. Does the NRC Chairman – a former disciple of chief Yucca Mountain antagonist Senate Majority Leader Harry Reid — lack the Commission votes to override the ASLB? Was he waiting to get a consensus on an updated waste confidence rule, which was consummated on September 15? Or for conspiracy theorists is he seeking to help his old boss’s up-hill re-election campaign by deferring a possible affirmation of the decision to reject the DOE license withdrawal until after the November 2 election or until Congress leave towns town for its elections recess? Or for the more charitably-inclined was Jaczko just concentrating on his keynote speech on September 22 to the 54th International Atomic Energy Agency Conference on the scintillating topic of “The Essential Role of the Safety Regulator?”
During the Great Fire of Rome in 64 AD, Roman Emperor Nero Claudius Caesar Augustus Germanicus purportedly fiddled while Rome burned. One authoritative source claims there wasn’t a fiddle to fiddle at the time – although perhaps he was playing a lyre. Other revisionists suspect that the story was invented by Nero detractors who took power shortly thereafter.
Years later, Clairol’s hair color advertisements famously touted the tag line – “Only her hairdresser knows for sure.” So perhaps while only Chairman Jaczko knows for sure, what’s your view? Thus far, in the Nuclear Townhall poll on the subject, 63 % believe the NRC is delaying the decision until after the election; 14% feel the Commission should take as much time as they need ; 9 % say they are deadlocked. A 2-2 vote by the eligible Commissioners would effectively rebuff a reversal of the ASLB decision.
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."
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:
Expresses Concern over NRC Commissioners’ Objectivity
By Nuclear Townhall Staff
A letter sent to NRC Chairman Gregory Jaczko today by more than a dozen House Republicans says the DOE does not have the authority to withdraw the Yucca Mountain license application "simply as a matter of policy."
"At no point in DOE’s motion to withdraw did the agency fault any scientific or technical portions of the license application. This omission highlights the shaky grounds on which DOE rested its argument to shutter Yucca Mountain."
Letter co-signers, which include ranking Republican James Sensenbrenner (R-WI), agreed with the Atomic Safety Licensing Board’s observation in its rejection of the DOE withdrawal request that "Congressional intent was clear" in the Nuclear Waste Policy Act (NWPA) noting "DOE cannot shortchange proper examination of the repository because of political preferences."
"The massive investment in both time and taxpayer dollars warrant proper consideration of the license application by the NRC. Over the course of thirty years, approximately $10 billion have been spent on Yucca Mountain. Throwing away this investment due to a campaign-pledge is not acceptable. Should the Commission overturn the Board’s decision, DOE and Congress will be forced to start anew to address spent fuel, which will only cost more taxpayer dollars, increase the government’s liability, and burden facilities that are currently storing waste on-site."
The letter calls a promise by Commissioners Apostolakis,
Magwood and Ostendorff to not second guess the DOE withdrawal "an inappropriate commitment" saying, as nominees, the commissioners "should not have faced intense pressure" both from Environment and Public Works Chairwoman Boxer and Senate Majority Leader Reid.
"The Commission should examine each case on its merits, rather than pre-judging an argument. We hope the entire Commission considers the Board’s decision in an objective manner."
Nuclear Townhall Exclusive Video of NRC Commissioners at Senate Nomination Hearing
By Steve Hedges
The States of Washington and South Carolina along with Aiken County (SC) and White Pine County (NV) have asked that three members of the U.S. Nuclear Regulatory Commission (NRC) recuse themselves or be disqualified from ruling on the use of Yucca Mountain, Nevada as a federal nuclear waste repository, citing the commissioners’ Senate confirmation testimony where they indicated they would not oppose a U.S. Department of Energy (DOE) decision to withdraw a pending license application.
During their confirmation hearing in February, 2010, the three commissioners — George Apostolakis, William Magwood and William Ostendorff — each said that they would not "second guess" a decision by the Department of Energy to withdraw its application to the NRC to operate Yucca Mountain.
Washington, South Carolina, the South Carolina county of Aiken and a group of utility commissioners from around the U.S. have sued to keep the project alive.
Those parties also filed statements with the NRC Friday as part of the commission’s deliberations over Yucca.
The Washington filing to the NRC noted that the NRC will not have the required quorum to vote on Yucca if the three commissioners recuse themselves.
While DOE has asked that its license for Yucca be withdrawn at the request of the White House, an NRC licensing board of three judges ruled in June that DOE does not have the authority to do that.
The licensing board found that the Congressional Nuclear Waste Policy Act of 1982, which authorized a federal nuclear waste facility, "does not give the secretary (of energy) the discretion to substitute his policy for the one established by Congress."
After that ruling, the NRC asked parties to the Yucca proceeding to submit their views as to whether the Commission should review the order and reverse or uphold the licensing board decision. Department of Energy s decision to withdraw the license application for Yucca Mountain from NRC s review?
Aiken County, S.C. in its own filing argued that, "Public confidence in the NRC demands that the politically charged and nationally significant issue of whether to second-guess the Licensing Board’s independent decision should not (be) undertaken by a Commission that has demonstrated predisposition, nor by a Commission effectively diminished to just two members by obvious and intentional political interference. However, if review is undertaken, the Licensing Board’s correct interpretation of the NWPA should be upheld."
Other parties in the dispute have questioned whether the NRC even has the authority to expedite that process by requiring briefs on the Yucca case within just two weeks – not its normal practice.
Further questions about the NRC’s impartiality have been raised in regard to the commission’s chairman, Gregory Jaczko. He is a former aide to Reid who opposed Yucca Mountain while working for Reid in the Senate.
But the statements by the three commissioners seemed to pose the biggest stumbling block for the parties that favor Yucca’s operation.
"This undue political influence on this adjudication cannot be effectively cured by votes to "abstain" by the three Commissioners directly subjected to the inappropriate questions in their confirmation hearing," the Aiken pleading stated. "Indeed, as Aiken County will set forth by separate motion jointly with other parties, full recusal from any consideration regarding DOE’s motion to withdraw is the ethically appropriate response by these Commissioners."
The statements against Yucca by the three commissioners came during their Feb. 9, 2010 U.S. Senate confirmation hearings.
During the hearings, Sen. Barbara Boxer (D-Calif.), questioned nominees George Apostolakis, William Magwood and William Ostendorff together.
According to the transcript of the Senate Committee on Environment and Public Works hearing, Boxer posed a question on behalf of Reid:
"Senator Boxer: Now, I have a question here for all three of you from Senator Reid. You can just answer it yes or no. If confirmed, would you second guess the Department of Energy s decision to withdraw the license application for Yucca Mountain from NRC s review?
Mr. Magwood. No.
Senator Boxer. Okay. Anybody else?
Mr. Apostolakis. No.
Mr. Ostendorff. No.
Senator Boxer. Thank you. I think he will be very pleased with that."
By Nuclear Townhall Staff
Just days after the Atomic Safety and Licensing Board’s rejection of the U.S. Department of Energy’s (DOE) request to withdraw the Yucca Mountain license application with prejudice, the Department has scheduled a July 7th meeting with Office of Civilian Radioactive Waste Management (RW) employees to provide them with their Specific Reduction in Force (RIF) Notice of Separation. All of the approximately 140 current RW employees are noticed in the email.
In a copy of the memorandum provided to Nuclear Townhall, the unidentified DOE human resources employee consoles employees:
"As we wind down our operations, it will be more important than ever that we all continue to provide support and comfort to our fellow employees as we all transition into our future activities.
The sender further advises:
"The last months have been trying for all of us, and I appreciate the cooperation and support you have shown me and each other during this unsettling period."
The entirety of the memorandum is as follows:
Personnel Meeting LSN: Not Relevant – Not Privileged
User Filed as: Excl/AdminMgmt-14-4/QA:N/
Shortly you will be receiving an invitation to a meeting that is to be held on July 7, 2010. The meeting will be held simultaneously in Las Vegas and Washington DC. The purpose of this meeting is to provide you with information on the Department’s Reduction in Force process and to provide you with your Specific Reduction in Force Notice of Separation. You have been invited to this meeting because, as of June 30, you are still shown on RW roles.
Receipt of this notice does not impact any job offers you have received; however it establishes your potential eligibility for priority consideration if you are found well qualified for Federal vacancies in your local commuting area under OPM’s Interagency Career Transition Program (ICTAP). It is important that you make arrangements to attend this meeting and receive your Specific Reduction in Force Notice of Separation as it will afford you the opportunity to exercise your Interagency Career Transition Assistance Plan (ICTAP) eligibility when applying for federal employment outside of DOE. Headquarters Human Capital representatives will be available to answer general questions during the meeting.
For those of you located in the Las Vegas office, the Headquarters Human Capital representatives will be available for individual meetings the remainder of the day on Wednesday and all day on Thursday. There will be a sign-up sheet for appointments located at [redacted] desk. Employees in Headquarters can make arrangements for individual meetings at their convenience. If you are unable to make arrangements to attend, your Specific Reduction in Force Notice of Separation will be mailed to your home address by registered mail. If for some reason you will not be attending the meeting at your normal work location, please let me know by mid-day Thursday so that we can have your materials sent to the appropriate location. The last months have been trying for all of us, and I appreciate the cooperation and support you have shown me and each other during this unsettling period.
As we wind down our operations, it will be more important than ever that we all continue to provide support and comfort to our fellow employees as we all transition into our future activities.
By Nuclear Townhall Staff
Just 24 hours after the Atomic Safety and Licensing Board's (ASLB) rejection yesterday of the U.S. Department of Energy's motion to withdraw the Yucca Mountain license application, the NRC Commission has issued an order inviting all parties to the proceeding to file briefs with the Commission as to whether the Commission should review, reverse or uphold the ASLB decision. The initial briefs are due July 9 followed by a response briefs due date of July 16.
By Yucca Johnny
Yesterday's decision by the NRC's Atomic Safety Licensing Board (ASLB) is obviously a much welcomed development in pro-Yucca constituencies. However, it will clearly put the NRC Commission on the hot seat.
The ASLB's 47-page decision meticulously dismantles any case for withdrawing the Yucca license. The Commission, which will in all likelihood get the case — on appeal or via its own motion — will have to decide whether to uphold and thereby preserve the NRC's credibility or go down the path of least resistance and let politics dictate its decision.
Any consideration of the ASLB decision will also raise questions about individual Commissioners and their objectivity. One need only recall the recently appointed Commissioners' confirmation hearing this winter. When asked point blank by Senator Barbara Boxer (D-CA) whether they would "second guess" the DOE's decision to withdraw the Yucca license application, the three nominees responded individually in robotic, rehearsed lockstep that they would not.
While the freshmen Commissioners will no doubt be reminded of this pledge, they certainly didn't commit to not second guessing the ASLB. The conflict crosshairs will also be on NRC Chairman Jaczko, who had to recuse himself on all matters related to Yucca Mountain during his first year as Commissioner. All eyes will be on Jaczko — a former Reid staffer — as to whether he'll try to help out his old boss by pushing to reverse the unanimous ASLB decision, something which has reportedly never been done in NRC history.
Regardless of the full Commission ruling, its decision will be challenged and end up in the U.S. Court of Appeals, D.C. Circuit, which is presently scheduled to hear oral arguments in late September on a round of consolidated petitions against DOE's termination of the Yucca Mountain project.
The following statement was released by NRC's Atomic Safety and Licensing Board to explain the decision to deny the license withdrawal:
“We do so because the Nuclear Waste Policy Act of 1982, as amended (NWPA),7 does not permit the Secretary to withdraw the Application that the NWPA mandates the Secretary file. Specifically, the NWPA does not give the Secretary the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit.”