Electric Co-op Today

A federal appeals court has rebuffed as premature a request to review the Department of Energy’s attempt to withdraw its application for a nuclear waste repository at Nevada’s Yucca Mountain.

A federal appeals court has found a challenge to the Energy Department’s attempt to terminate the Yucca Mountain nuclear waste project premature. (Photo By: DOE)

But a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit underscored that it would not countenance unreasonable delay in regulators’ fulfillment of their responsibilities.

The court acted in a proceeding brought in the wake of DOE’s announcement that it intended to terminate efforts at Yucca Mountain and its attempt to withdraw its licensing application at the Nuclear Regulatory Commission. The petitioners, including the states of South Carolina and Washington and a S.C. county, are home to sites that temporarily store spent nuclear fuel and nuclear waste destined for a permanent repository.

However, the judges found their first claim—that DOE lacked the legal authority to withdraw the application, which had been required by the Nuclear Waste Policy Act—not ripe for review, because an NRC licensing board had denied the withdrawal request.

Two ongoing NRC administrative actions, the commission’s review of the board’s denial and the board’s review of the repository construction license application, “have the potential to moot petitioners’ first claim entirely,” the court said.

The judicial panel found petitioners’ second challenge, to policymakers’ decision to “unilaterally and irrevocably terminate the Yucca Mountain repository process”—similarly problematic. While agency actions are reviewable by courts of appeal, the court noted, “petitioners have failed to identify any agency action” that DOE failed to perform, or performed inadequately, under the nuclear waste act.

Petitioners’ general complaints about the DOE’s new policy regarding Yucca Mountain are not subject to the court’s review, the judges indicated.

However, they cautioned, timeliness is a virtue. “We will interfere with the normal progression of agency proceedings to correct transparent violations of a clear duty to act,” the judges said.

While the appeals panel provided no specifics, NRC has come under criticism for its delay in deciding whether to accept the licensing board’s rejection of DOE’s request to withdraw the repository license application. This has delayed disposition of the proposed project termination.

“We will not permit an agency to insulate itself from judicial review by refusing to act,” the court emphasized.

Tags: Energy & Environment, Nuclear Regulatory Commission, Obama Administration, On the Docket