Congress expresses concern about Yucca Mountain closure

John Rossomando Contributor
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The Obama administration’s decision to suspend the construction of the politically contentious Yucca Mountain nuclear depository may have been illegal, according to congressional investigators.

Work on the project dates back to 1982 when Congress passed the Nuclear Waste Policy Act (NWPA), requiring the Department of Energy to establish a single permanent depository for the nation’s spent nuclear fuel and waste derived from defense uses. Congress later amended the act in 1987 to designate Nevada’s Yucca Mountain as the sole depository.

Progress has been stalled ever since due to vocal opposition from environmentalists and from Nevada politicians, including Senate Majority Leader Harry Reid, due to worries that radiation would contaminate the ground water.

President Obama vocally opposed the project during his 2008 presidential campaign and chastised GOP presidential nominee Sen. John McCain of Arizona for supporting it. In 2009, after being elected, Obama moved to zero out funding for building the project and then moved to revoke the Bush administration’s 2008 application to construct and administer the proposed facility in March 2010.

The Department of Energy’s request to withdraw the license application was turned down by the Atomic Safety and Licensing Board (ASLB) on June 29, 2010.

The Nuclear Regulatory Commission’s (NRC) actions, led by Chairman Gregory Jaczko, a former Reid staffer, have led to investigations into possible illegalities by the House Energy and Commerce Committee, the House Oversight and Government Reform Committee, the House Science, Space and Technology Committee and the GOP staff of the Senate Environment and Public Works Committee .

“Shortly after taking office, President Obama pledged that ‘the public must be able to trust the science and scientific process informing public policy decisions,’” House Oversight and Government Reform Committee Chairman Darrell Issa of California wrote in a March 11, 2011 letter that committee staff recently decided to make public. “Likewise, as chairman, you have stressed the importance of ‘conduct[ing] the public’s work in an open and transparent manner.’

“Unfortunately, your actions surrounding the termination of the Yucca Mountain project fail to live up to this pledge.”

Illinois Republican Rep. John Shimkus, who chairs the energy and power subcommittee of the House Energy and Commerce Committee, went a step further and told The Daily Caller that the Department of Energy and the Nuclear Regulatory Commission may have broken the law by stopping work on the project without a congressional mandate.

“This was initiated by a statute that was signed into law all the way back in 1982, so what’s the legal authority for us to stop?” Shimkus asked. “Many of us believe there is none, and this is politics at its worst at its highest levels.”

He continued: “First of all, we think it is illegal for the NRC and for Obama through the secretary of energy to stop funding Yucca Mountain, and secondly, we really question the legality of the NRC delaying its vote [on revoking the license application].”

Commissioner Gregory Ostendorff likewise expressed concerns about the legality of and justifications for Jaczko’s actions in an Oct. 8, 2010 letter to his fellow commissioners.

And Science committee staffers say they believe Jaczko has been engaged in political maneuvering together with Reid and the Obama administration to quash any scientific reports that might suggest Yucca Mountain is safe.

A March 10, 2011 letter signed by Science Committee Chairman Ralph M. Hall, Texas Republican, Vice Chairman James Sensenbrenner, Wisconsin Republican, Investigations subcommittee Chairman Paul Broun, Georgia Republican, and Energy and Environment subcommittee Chairman Andy Harris, Maryland Republican, suggests science has taken a backseat to politics in NRC’s review of Yucca Mountain.

And internal NRC documents dated February 4, 2011, provided to The Daily Caller, seem to support their belief.

Dr. Janet Kotra, the deputy office director responsible for drafting the project’s safety evaluation, known as the Safety Evaluation Report (SER), wrote in an internal memo that Jaczko unilaterally instructed his staff to “move to orderly closure of NRC’s Yucca Mountain program.” This is despite the fact the Nuclear Waste Policy Act remains in effect and the full commission has yet to rule on whether the Department of Energy can legally withdraw the license application.

The “orderly closure” has been something less than orderly, according to her supervisor King Stablein, who suggests Jaczko’s interference caused the closure of NRC’s Yucca Mountain safety review to be full of “confusion, chaos and anguish” among staffers, many of whom had worked on the Yucca Mountain project for over two decades or more.

Stablein similarly called Jaczko’s decision to stop work on the SER “the arbitrary decision of one person.” The third section of the SER, which was supposed to address the scientific and technical ramifications of the closure, had been slated to be released in November 2010 prior to the NRC chairman’s unilateral decision to end work on the safety review.

“It felt to the staff as if the chairman had casually dismissed the staff’s sacrifices and effort of those many years without even bothering to engage his fellow commissioners in the manner commission decisions are usually handled,” Stablein wrote.

Jaczko’s decision not to proceed with finishing the third section of the SER has been further complicated by the fact the chairman has not allowed the full commission to vote on whether or not to uphold the ASLB’s decision to deny the administration’s request.

“Staff should not be put in a situation where the direction from the chairman appears to be in direct conflict with the NWPA and the fact of an active license application,” Stablein continued.

To date, Jaczko has yet to inform Congress when the vote will take place or if a vote has already taken place on overturning the ASLB’s decision. Congressional investigators say they plan to keep pressuring the Nuclear Regulatory Commission’s chairman until they get more answers about the vote, as well as regarding the third section of the SER.

The NRC did not return TheDC’s request for comment.