In an embarrassing slap at the U.S. Nuclear Regulatory Commission’s handling of a long pending review of a lower panel’s decision to reject the Energy Department’s Yucca Mountain license withdrawal, a Federal Court has lifted a stay put in place pending the review and set an aggressive expedited schedule to consider the case contesting the Obama Administration’s termination of the national repository program.
The resumption of the legal fight over the project’s proposed termination will give new ammunition to mushrooming efforts by the incoming House Republican majority to re-start the program.
In a status report filed by state of South Carolina and Washington plaintiffs on November 29 asking for the stay to be lifted, the petitioners alleged manipulation of the judicial process by the government and charged that the Administration continued to “ignore the June 29, 2010, decision” of the Atomic Safety Licensing Board, while continuing “to shut down the Yucca Mountain project.”
In addition, the brief complained that NRC Chairman Gregory Jaczko “has taken unilateral action and instructed NRC staff to shut down its review of the DOE’s license application, in violation of the ASLB decision.”
They further argued that “although apparently the NRC has taken internal votes as long as three months ago regarding its review of the ASLB decision, the matter has still not yet been decided in a formal vote of the Commission. The NRC has now taken no action for three months longer than the court’s original order granting expedited review provided for, and five times longer than the NRC gave the ASLB to review it.”
In recent statements to the media and Congress, the NRC admitted that it had no schedule for consummation of the review.
A initial response from litigants is due in early January 2011 with final briefs due on February 8.
The mysterious KeKster, the YouTube nuclear film producer specializing in nuclear energy issues, has struck again with a five-minute video featuring two cartoonish characters very effectively swatting back nuclear energy myths and even explaining why Yucca Mountain hasn’t moved forward (eventually leading into what has been popularized as the “Jaczko Fiasco”, the subject of an earlier video apparently from the same source).
The chief protagonist, a eunuch-looking gnome of unknown origin approaches the questions — posed to him or her by a related imp playing Devil’s Advocate — with a workman-like Sergeant Joe Friday demeanor along with a touch of Star Trek’s Spock thrown in.
The only mild surprise is that it takes about three minutes and twenty-six seconds for them to get into Yucca Mountain and Harry Reid, with the Jascko fiasco showing up at four minutes and thirty seconds. The video closes with the duo telling viewers to contact their members of Congress to tell them “to complete the Yucca Mountain waste repository”
To see more, follow this link or simply watch below.
During a sweep through Bloomberg’s New York City headquarters Friday, U.S. Nuclear Regulatory Commission Chairman Gregory Jaczko told the news service that nuclear plants being advanced by Southern Co., Scana Corp and NRG Energy, Inc. are at the top of the 13 applications currently pending before the agency.
Jaszko said the three companies are "actually doing" preparation work at their sites in Georgia, South Carolina and Texas.
Conspicuously missing from the list is EDF’s Calvert Cliffs 3 plant, which had been a clear frontrunner for Energy Department loan guarantees until the withdrawal of UniStar principal Constellation Energy.
Jaszko said decisions on applications to build will start flowing in 18 months.
Bloomberg quotes the Chairman as saying a couple years ago, more applicants "may have been talking about construction immediately after licensing, now there appears to be more of a wait and see." Jaczko attributed the hiatus to a recession-induced energy demand drop and a decline in the cost of natural gas.
The press-shy NRC Chairman — who has been increasingly embattled in the face of mounting Congressional criticism for his handling of the high-profile Yucca Mountain license review — has generally been fastidious in not offering specifics on new plant licensing.
In a stunning and remarkable open letter to journalists released late this afternoon, former U.S. Nuclear Regulatory Commission Chairman Dale E. Klein has rebutted a key assertion made by his successor – current Chairman Gregory Jaczko – with regard to Jaczko’s decision earlier this month “to terminate the ongoing NRC work on the Yucca Mountain license application.” Noting that Jaczko has repeatedly stated that ‘the Commission approved this budgetary approach for fiscal year 2011,” Klein, who was part of the budget deliberations, stated bluntly: “I do not agree with the Chairman’s assertion that his actions are consistent with the Commission’s FY2011 budget policy guidance.”
The Klein letter adds more fuel to an escalating firestorm between the increasingly embattled Jaczko and Congress spurred by the Chairman’s unilateral Yucca Mountain licensing application review stoppage. The action has resulted in a barrage of Congressional queries, the initiation of an investigation by Jaczko’s own Inspector General, legal filings in Federal Court, charges of political gamesmanship favoring Jaczko mentor Senate Majority Leader Harry Reid and an extraordinary statement by a NRC staff member in an open forum with Commissioners that agency personnel feel “betrayed.”
Klein added: “The FY 2011 budget was developed during the summer and fall of 2009 and ultimately approved by the Commission in January 2010. During that time, there were only three NRC Commissioners. My fellow Commissioner Kristine Svinicki has already publicly expressed her disagreement with the Chairman’s actions. Let me make it clear, there was no intention by the Commission to approve, or even contemplate, a preemptive termination of the high-level waste (HLW) program. Our approach and guidance to agency staff was to sustain ongoing work while maintaining flexibility in the face of the Office of Management and Budget’s directions concerning the HLW program.”
Klein charged that “it is not appropriate for Chairman Jazcko to continue to rationalize his actions as being consistent with the Commission’s FY 2011 budget guidance. Doing so implies that I and Commissioner Svinicki are complicit in authorizing his actions, and that is clearly not the case.”
According to Klein, the continuing resolution budget guidance for the agency’s Yucca Mountain review “should have been handled as a Commission policy matter, with the full participation of the Commission and, most certainly, in consultation with Congress.
“Lastly, having served as Chairman, I believe I have a reasonable understanding of the legal authority of the Chairman’s office to address administrative matters such as budget issues. I would not consider the closeout of the HLW application technical review to be a simple reassignment of personnel or routine reallocation of resources. Rather, the actions taken are the implementation of a major national policy decision that has not been acted on by the Commission or authorized by Congress,” Klein said.
The full text of the Klein letter follows:
Open Letter to Journalists—
As a former Chairman of the Nuclear Regulatory Commission, I wish to address a particular point raised by the current Chairman, Gregory Jaczko, in the controversy surrounding his decision to terminate the ongoing NRC work on the Yucca Mountain license application. Chairman Jaczko has repeatedly stated that “the Commission approved this budgetary approach for fiscal year 2011”. I served as a member of the Commission during the fiscal year (FY) 2011 budget deliberations and was intimately involved in establishing the budget policy referred to by Chairman Jaczko. I do not agree with the Chairman’s assertion that his actions are consistent with the Commission’s FY 2011 budget policy guidance.
The FY 2011 budget was developed during the summer and fall of 2009 and ultimately approved by the Commission in January 2010. During that time, there were only three NRC Commissioners. My fellow Commissioner Kristine Svinicki has already publicly expressed her disagreement with the Chairman’s actions. Let me make it clear, there was no intention by the Commission to approve, or even contemplate, a preemptive termination of the high-level waste (HLW) program. Our approach and guidance to agency staff was to sustain ongoing work while maintaining flexibility in the face of the Office of Management and Budget’s directions concerning the HLW program.
In December 2009, the HLW program was in flux. It was not known if the Department of Energy would request a withdrawal or suspension of the Yucca Mountain license application, the Blue Ribbon Commission on America’s Nuclear Future had not been formed, and the Congress had not engaged on how affected agencies would address their obligations under the Nuclear Waste Policy Act. While I may have anticipated some of the unfolding events, I could not have predicted all that has clouded this contentious issue. Clearly the conditions and assumptions that the Commission relied upon in developing our FY 2011 budget approach changed over time, and a recalibration would have been appropriate.
Since the majority of current commissioners chose not to reconsider the budget guidance, the guidance which I helped to create remains in force. It is not appropriate for Chairman Jazcko to continue to rationalize his actions as being consistent with the Commission’s FY 2011 budget guidance. Doing so implies that I and Commissioner Svinicki are complicit in authorizing his actions, and that is clearly not the case. Having served as NRC Chairman during several budget cycles, I believe that the continuing resolution budget guidance for the HLW program should have been handled as a Commission policy matter, with the full participation of the Commission and, most certainly, in consultation with Congress.
Lastly, having served as Chairman, I believe I have a reasonable understanding of the legal authority of the Chairman’s office to address administrative matters such as budget issues. I would not consider the closeout of the HLW application technical review to be a simple reassignment of personnel or routine reallocation of resources. Rather, the actions taken are the implementation of a major national policy decision that has not been acted on by the Commission or authorized by Congress.
A spokesperson for the U.S. Nuclear Regulatory Commission Inspector General Hubert Bell has confirmed the initiation of an investigation by his office into Chairman Gregory Jaczko’s early October action to shut-down the agency’s review of the pending Yucca Mountain license application.
Rossana Raspa, a NRC Investigative Team Leader, advised Nuclear Townhall that an investigation has commenced but declined to give more specifics.
In an October 8, 2010 letter to the Inspector General, former two-term (1987-97) NRC Commissioner Rogers requested a review of Chairman Jaczko’s "recent unilateral actions to terminate the NRC Staff’s review of the DOE Yucca Mountain application in order to determine whether any legal or other improprieties have been committed."
On October 19, 2010, senior Republican Energy and Commerce Committee members – Reps. Fred Upton (R-MI) and Ed Whitfield (R-KY) – asked Bell to “convene a formal investigation.”
The text of the Upton-Whitfield letter is below:
October 19, 2010
Mr. Hubert T. Bell
Inspector General of the Nuclear Regulatory Commission
11545 Rockville Pike
Rockville, MD 20852
Dear Mr. Bell,
Recent news reports have indicated that Chairman Gregory Jaczko is delaying a ruling on whether the Department of Energy has the legal authority to withdraw the license for the Yucca Mountain Repository in Nevada. Because of these reports, we are asking you to convene a formal investigation into the Chairman’s recent actions to shut down the project.
As you know, Yucca Mountain was designated as the nuclear waste repository by the United States Congress in legislation signed by the President as part of the Nuclear Waste Policy Act of 1982 (NWPA), as amended in 1987. In 2002, Congress passed a Joint Resolution reaffirming the site as the country’s nuclear waste repository. Despite these actions and the fact that Congress to date has continued to provide funding for Yucca Mountain, the actions by the Chairman make us concerned that he has overstepped his authority by making a decision to terminate the review of the license application based on his FY 2011 budget request, which has yet to be approved by Congress. We are concerned that this unilateral decision by the Chairman is undermining the intent of the Congress and possibly the Commission, as it is our understanding that at least on Commission member has issued a memo detailing his objections to the Chairman’s actions.
Countless times Congress has reaffirmed that we must have a permanent storage site to protect the public and the environment, as well as to continue to develop nuclear power in the United States. Nuclear power accounts for twenty percent of our electricity supply and is expected to grow substantially in the next several decades. Additionally, the average nuclear plant generates approximately $430 million in the local community and the operation of a nuclear plant creates 400 to 700 permanent jobs. Any delay to advance nuclear power places our economy and national security at risk. Playing political games with this issue, which has been suggested in the news, has already cost taxpayers $1 billion through lawsuits filed and that number is expected to increase to over $50 billion in the next twenty years, not to mention that the federal government has already spent $9 billion constructing the Yucca Mountain project and this would be wasted money. At a time when we have a nearly $14 trillion debt, these actions are unwise and deserve your attention. Therefore, we appreciate your fair and expedited review of the Chairman’s actions and this situation.
The Las Vegas Review-Journal (RJ) has obtained a transcript of a U.S. Nuclear Regulatory Commission annual “all-hands meeting” held this week on Monday, October 18, where Commissioners faced an extensive grilling over embattled Chairman Gregory Jaczko’s recent unilateral decision to stop work on the agency’s Yucca Mountain project license application review.
The RJ reports that there were “plenty of employee queries” on Jaczko’s increasingly contentious action, including an unidentified questioner who remarked that some NRC staff “feel personally betrayed” by the decision. Others reportedly openly questioned the legality of the Chairman’s directive.
A spate of letters from Capitol Hill this week – including one requesting a NRC inspector general investigation of the matter and another accusing Jaczko of playing political games – have challenged the Chairman’s authority, leadership and legal premise. A filing in Federal Court – also this week — by Yucca Mountain plaintiffs said the agency was effectively colluding with the U.S. Department of Energy, which is seeking to terminate the program.
The RJ transcript review indicates that the Commission is apparently split on releasing a key Yucca Mountain review volume, which was aborted by the Jaczko action. Commissioner William Ostendorff reiterated his disagreement with the Jaczko directive while saying he favored a vote on releasing the report. Commissioner William Magwood said “it’s still a matter of some discussion,” while Commissioner Kristine Svinicki expressed hope that “we’ll continue to analyze this particular question.”
The Commissioners were pressed on a timetable for a decision on the Commission’s languishing review of the Atomic Safety Licensing Board’s decision to reject the DOE’s license withdrawal request – now in its fifth month. Chairman Jaczko skirted the question saying he “couldn’t comment on an issue pending before the panel.”
The U.S. Nuclear Regulatory Commission’s public relations staff is apparently seeking to counter mounting criticism of besieged Chairman Gregory Jaczko’s recent directive throttling the agency’s Yucca Mountain project review. The action has spurred negative editorials, unfavorable news reports, an angry series of letters from Capitol Hill and legal action in Federal Court.
In response to an October 20th Seattle Times editorial accusing the NRC Chairman of “Bending Rules in Yucca Mountain Proceeding”, the Commission staff has circulated a statement to news media defending the decision.
The NRC statement says the decision “was not unilateral or political.” It further defends the action as “simply a matter of efficient resource management and good government.”
The South Carolina Attorney General’s office has written the U.S. Department of Justice and the Nuclear Regulatory Commission querying the NRC’s recent moves to close out the Department of Energy’s license application for the Yucca Mountain Nuclear Waste Repository.
"In responding, we request that you honor the spirit of our question, rather than splitting any technical hairs in how our question is framed," said the letter, signed by Andrew A. Fitz, senior counsel for the attorney general’s office. "In our opinion, this information is relevant to our mutual obligation to continue to inform the D.C. Circuit Court of Appeals of the status of the administrative matter before the NRC."
South Carolina is a principal plaintiff in the lawsuit challenging the Department of Energy’s decision to withdraw its application for Yucca. Originally filed by Aiken Country, S.C., home of the Savannah River site, the suit has since been joined by the State of South Carolina and Washington State, home of the Hanford Reservation. Both Savannah River and Hanford house spent fuel and other nuclear by-products that would eventually be stored at Yucca Mountain. The suit alleges that DOE’s decision reneges on the federal government’s obligation to provide a
permanent repository under the Nuclear Waste Policy Act of 1982.
Fitz asked either the DOJ or the NRC to either confirm of deny reports that NRC Chairman Gregory Jaczko has instructed the agency staff to start closing out the DOE application, as reported yesterday by Nuclear Townhall. Jaczko has initiated the action even though the full commission has not yet voted on the Atomic Safety Licensing Board’s decision rejecting the shutting down of Yucca, which was issued on June 29.
The letter is addressed to both Ellen J. Durkee, of the Environmental and Natural Resources Division of the Justice Department, and John F. Cordes, Solicitor for the Nuclear Regulatory Commission. "We are directing our inquiry to you, rather than the NRC directly, based in the fact that our question relates to a matter in litigation in which you represent the NRC, among other respondents," wrote Fitz.
Testimony in the D.C. lawsuit has been suspended pending a vote by the Commission on whether to accept or reject the ASLB’s finding.
Rumors are that Chairman Jaczko has been unable to assemble the votes for needed for a rebuttal. Jaczko has directed much of his attention toward closing down Yucca since being appointed chairman in 2009 under the championship of Senate Majority Leader Harry Reid, of Nevada, where the repository is located. Senator Reid is currently locked in a tight race for re-election against Republican challenger Sharon Angle, who holds a 4-point lead according to the latest poll.
Using an interpretation of a section of the 2011 budget not yet adopted by Congress, Nuclear Regulatory Commission Chairman Gregory Jaczko has ordered his staff to begin a “close-down” of the review of the Department of Energy’s license application –- even though the Agency’s final decision on a license withdrawal request and Congressional appropriations are still up in the air.
The NRC staff is using pages 94 and 95 of Nuclear Regulations 1100, Volume 26, as a guideline: “Resources will support work to the orderly closure of the NRC’s licensing activities.” The paragraph goes on to refer to “archiving material, completion of some technological work, knowledge capture and management, and maintenance of certain electronic systems to support these efforts.”
In plain language, this means NRC is closing the books on DOE’s application to develop Yucca, originally filed in 2008. The Obama Administration asked for withdrawal of the application this March, saying Yucca was no longer needed. Several states are appealing the DOE’s action in court. In June, the Atomic Safety Licensing Board (ASLB), a division of the NRC, also rejected the application withdrawal request, saying that DOE did not have authority to do so under the Nuclear Waste Policy Act and had not given sufficient scientific justification for abandoning the project. The five-member Nuclear Regulatory Commission has power of review over the ASLB recommendation but has not yet voted on the matter, which has been pending for 99 days. Reports from within the NRC suggest that Chairman Jaczko may not have the votes to reject the ASLB finding.
Jaczko has a particular motive for pushing on with the Yucca close down. A former staff member for Senate Majority Leader Harry Reid, he was appointed NRC chairman – according to some reports – specifically for the purpose of closing down the Nevada facility in Reid’s home states. Reid is currently locked in a hard-fought effort to retain his Senate seat and proof that Yucca is actually shutting down would give a big boost to his campaign.
Jaczko’s authority in operating on a budget resolution that has not yet passed Congress is obviously a judgment call. “This may be not as dramatic as its sounds,” said David McIntyre, a spokesman for the NRC’s office of public affairs. “The agency staff has already been at work on the transition to a post-Yucca scenario for some months.” The public affairs office speaks only for the chairman and does not represent the other four commissioners.
“We just entered the new fiscal year on October 1,” said McIntyre. “The guidance given to the staff has been that with respect to high-level waste, it should follow the FY 2011 budget plan, even if the rest of the agency is operating on 2010 levels.” Congress has not yet adopted a 2011 budget but is operating on a continuing resolution for the 2010 version.
Are the steps now being taken to close the Yucca application reversible? “That’s not immediately clear,” said McIntyre.
The other four commissioners were not immediately available for comment.
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.