NRC allows closure of Yucca waste dump

WASHINGTON - A divided Nuclear Regulatory Commission on Friday allowed the Obama administration to continue plans to close the controversial Yucca Mountain nuclear waste dump in Nevada.

The commission split, 2-2, on whether to uphold or reject a decision by an independent nuclear licensing board. The board voted last year to block the Energy Department from withdrawing its application for Yucca Mountain, a remote site 90 miles from Las Vegas. The licensing board said the government failed to make a scientific case for why the application should be withdrawn.

Despite the split vote, the NRC said in an order Friday that the licensing board should continue steps to close out work on Yucca Mountain by the end of the month, citing "budgetary limitations."

The Energy Department has not requested additional funding for Yucca Mountain, and NRC spending on Yucca expires at the end of the month. The NRC decision appeared to be a victory for NRC Chairman Gregory Jaczko, who last year ordered NRC staff to halt work on the Yucca project.

Jaczko, a former aide to Senate Majority Leader Harry Reid of Nevada, Yucca Mountain's leading congressional opponent, has made a series of decisions to delay or halt work on the Nevada dump since becoming chairman in 2009. His actions have infuriated congressional Republicans, who accuse Jaczko of carrying out the wishes of Reid and President Barack Obama, who appointed Jaczko as NRC chairman and promised in the 2008 campaign to kill the Yucca Mountain project.

The NRC vote may not be the last word on the issue.

Two top leaders of the House Energy and Commerce Committee said in a statement Friday that the NRC's action "means the Yucca Mountain license application remains alive."

GOP Reps. Fred Upton of Michigan and John Shimkus of Illinois said the tie vote means the June 2010 decision by the independent Atomic Safety Licensing Board is not overturned and the DOE's motion to withdraw the Yucca Mountain application is not granted. Upton chairs the Energy and Commerce panel, while Shimkus heads an environment subcommittee.

NRC Commissioner William Ostendorff agreed with Upton and Shimkus. Ostendorff, a Republican, supports using Yucca Mountain for storage of nuclear waste and has clashed with Jaczko over the NRC's handling of the issue.

"In my discussions with senior NRC attorneys, a 2-2 split is legally unambiguous" and leaves the licensing board's decision intact, Ostendorff said in an email.

Ostendorff said the NRC order "acknowledges the current fiscal realities" and directs the licensing board to take steps to close out its review of the project.

A federal appeals court in Washington is considering a suit by South Carolina, Washington state and others that want to ship spent nuclear fuel to Yucca Mountain.

Congress chose Yucca Mountain as the leading candidate for disposal of radioactive nuclear waste. But opponents are concerned about contamination, and the Obama administration has said it would not consider the site and would look for alternatives.

The appeals court ruled in July that it would not intervene in the case because the NRC had not made a final decision on the status of Yucca Mountain.

As a practical matter, work on Yucca Mountain will not continue in the short term, Ostendorff and others said, because neither the Energy Department nor the NRC has allocated money for the project.

Energy Secretary Steven Chu has said Yucca Mountain is not a "workable option."

Jaczko's actions on Yucca Mountain have been criticized by House Republicans, by his own scientific staff and by the NRC's Inspector General. The IG report found that Jaczko acted within his authority and broke no laws. But it also concluded that to get his way on the issue he failed to be forthcoming with other commissioners

Jaczko declined to comment Friday, and a spokesman for the NRC declined to reveal how individual commissioners voted. However it is widely believed that Jaczko and fellow Democrat William Magwood voted to overturn the licensing board decision, while Ostendorff and fellow Republican Kristine Svinicki voted to uphold it. Ostendorff confirmed Friday that he voted to uphold the licensing board.

Commissioner George Apostolakis, a Democrat, recused himself from the vote because he has worked on Yucca-related issues in the past.

Joe Strolin, acting chief of the Nevada Agency for Nuclear Projects, said the ruling was "good for us," but added: "We have to remain vigilant because it could be revived at any time." Strolin's agency opposes the Yucca Mountain project.

Strolin expressed frustration that Nevada has to continue a legal and technical fight while a political battle continues in Congress over the fate of the stalled project.

"It remains in limbo," Strolin said. "For all practical purposes it's dead in the water, but technically and legally it remains alive. If Congress allocates money for the project it could be revived."

Upton and Shimkus said that's what they intend do. The GOP-led House approved a spending bill in July that includes $45 million for the Yucca project. The bill has little chance of approval in the Senate.