• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • NRC Chairman Killing Yucca Without Authority

    Nuclear Regulatory Commission (NRC) Chairman Gregory Jaczko has ordered his staff to stop the review of the nuclear materials repository at Yucca Mountain. Aside from the harmful policy implications of this action, the chairman seems to be moving forward without any authority to do so.

    President Obama has made it clear that he supports terminating the Yucca Mountain nuclear repository. And despite there being no scientific or technical evidence to support the decision and the fact that he has no plan for how the United States should manage its nuclear waste absent Yucca, he has that right. But neither he, his Administration, nor the NRC has the right to ignore existing statute, the legal process, or the will of Congress.

    What Does the Statute Say?
    The Nuclear Waste Policy Act of 1982, as amended, clearly states that the federal government is responsible for managing America’s commercial nuclear waste, and the Yucca Mountain Development Act of 2002 explicitly identifies Yucca Mountain as the location of the nation’s nuclear materials repository.

    No Congress has passed any bill to reverse these laws. Thus it becomes very questionable how the Administration or NRC can shut down all Yucca activities without either a plan to replace Yucca or congressional authority to terminate the project.

    No Existing Authority
    According to a report from Nuclear Townhall, Jaczko is deriving authority to stop all NRC Yucca operations based on an interpretation of the 2011 budget. The problem here is that the 2011 budget has not been passed by Congress. Indeed, only one Senate committee has passed any version of the budget. And even if the budget were passed, there is no guarantee that it would terminate Yucca. In fact, it is more likely that the opposite would be true, given the broad support that Yucca enjoys in both the House and the Senate.

    Explicit Congressional Support for Yucca
    Support for Yucca Mountain extends across both sides of the aisle. Senator Jim DeMint (R–SC) calls the project essential for safe storage of nuclear waste, and Senator Mary Landrieu (D–LA) has offered support, citing the years and money spent on the project.

    The Obama Administration’s proposal to cut funding for Yucca Mountain frustrated lawmakers, who say the move damages nuclear energy’s future. Sen. James Inhofe (R–OK) expressed criticism, highlighting the billions spent in research and the $11 billion in liability costs to taxpayers because the Department of Energy (DOE) has yet to accept used fuel. Ninety-one Members of Congress signed a letter to Energy Secretary Steven Chu urging DOE to halt plans to dismantle the repository and saying it has “ignored congressional intent without peer review or proper scientific documentation.”

    A bipartisan House resolution shows further support for licensing Yucca Mountain. Congressman Norm Dicks (D–WA) called DOE’s action “illogical” since no alternative exists, and Congressman Fred Upton (R–MI) remarked on the disparity between the large sums of money spent and the miniscule returns.

    Ongoing Legal Process
    A series of lawsuits were filed soon after the President announced his intention to terminate the Yucca project. None of these suits has been resolved yet. So for Jaczko to take this extraordinary step prior to knowing the legality of the DOE request is premature.

    But beyond that, the NRC process itself has questioned the legitimacy of the DOE request. The Atomic Safety and Licensing Board (ASLB) determined that the DOE’s request to withdraw its application did not have scientific merit and was therefore not justified. The NRC has oversight of the ASLB and authority to overturn its decisions but has not voted on the matter as yet. Given that Jaczko is chairman of the commission, he should have not problem bringing the matter to a vote. That he has not implies that he is unsure about the outcome of such a procedure, which calls into further question the legitimacy of his actions.

    Rhetoric v. Renaissance
    Nuclear power can help the U.S. meet is energy, economic, and environmental goals. It is a clean, affordable domestic energy source. But until the nation comes up with a sensible waste management policy, nuclear power will be more about rhetoric than renaissance. The President could take a huge step forward on clean energy simply by allowing the NRC to finalize its review of the Yucca Mountain application. The President said that he would respect science and invite transparency. Yet it seems that neither is present when it comes to Yucca Mountain.

    Posted in Energy [slideshow_deploy]

    5 Responses to NRC Chairman Killing Yucca Without Authority

    1. Rich Stewart says:

      The Obama administration authority comes from a clause in the U.S. Constitution that we country bumpkins were not aware of prior to the election of a world renowned constitutional scholar as President of the U.S. It is as shown below.

      Article II Section 3A

      The President shall not be forced to eat broccoli as a prerequisite to being given his Presidential dessert. Nor shall the President be forced to faithfully execute any laws that he dislikes.

      That Article II Section 3 stuff as written by a bunch of angry old white men about the President faithfully executing laws was not flexible enough to meet the needs of the 21st Century progressive.

      So far Article II Section 3A appears to have been applied to the enforcement of immigration laws and voting rights laws. I’m sure the Obama administration is making use of this clause in other areas. The following posts highlight the use of this clause in the areas of immigration and voting rights.

      The you don’t have to eat your broccoli clause – Obama and immigration law (http://www.ourfounderscompass.com/archives/307)

      You don’t have to eat your broccoli clause – applies to enforcement of voting rights too (http://www.ourfounderscompass.com/archives/406)

    2. Darrin Sideman, Las says:


      Another good Yucca Mountain article. Be advised, however, that the liability estimates for the Department of Energy's failure to live up to its contractual obligation to take possession of spent nuclear fuel were already estimated to surpass $11 billion BEFORE the current administration pulled the plug on the Yucca Mountain Project. At that point, the scenario involved so-called "partial breach" cases and an ongoing situation that would have been rectified by the ultimate opening of the proposed repository. Now, however, that the administration has "taken Yucca Mountain off the table," those cases will become full-breach cases with no foreseeable means of resolution other than paying the plaintiffs (nuclear utilities) for damages inflicted by the government (DOE).

      The government's current liability, as a consequence of cases already tried and settled, stands at about $1.1 billion, with only a small percentage of cases tried or settled and many more on the books (and that's just current cases; it doesn't count future cases).

      Credible estimates (including from the Department of Justice) have set the ultimate liability at upwards of $50 billion, and I've seen industry estimates that go as high as $100 billion.

      Needless to say, this money will all come from TAXPAYERS, and will be paid out of the the DOJ Justice Fund (as current settlements already have). This is an issue apart from liabilities that may stem from lawsuits waged by the nuclear industry seeking return of the $23 billion paid by nuclear utility customers (i.e., "ratepayers") to build the repository at Yucca Mountain. So, in all probability, that money will have to be returned as well.

    3. Darrin Sideman, Las says:


      One other comment, not often discussed with respect to this topic.

      Setting aside whatever PR issues it might cause for the nuclear power industry ("Now we have no storage solution," the environmentalists have been crying), the rash and potentially illegal termination of the Yucca Mountain Project might actually end up being a boon for the industry, which is good news for those of us who support that industry, but bad news for taxpayers.

      Like most industries, the nuclear power industry is primarily concerned with those aspects of the business that make it money — in this case, the so-called "front end" of the fuel cycle, which means the burning of fuel for the production of energy. The back end of the cycle — disposing of the spent fuel — does not make them money. Rather, it costs a lot of money and represents a major headache.

      Until recently, the arrangement had been as follows: Starting in 1982, the government ordered nuclear utilities to charge their customers a fee and to surrender that money into a fund specifically created to finance the construction of a repository at Yucca Mountain. In short, the nuclear utilities, through a fee paid by their customers, were paying for an ultimate solution to the problem of how to dispose of their spent fuel (the fund currently holds about $23 billion). It was this arrangement on which the whole system was predicated, and the foundation for the so-called "Standard Contract" between nuclear utilities and the government.

      Now that this contract has been violated by the government in full (i.e., there will be no Yucca Mountain repository), the utilities are fully empowered to sue for damages commensurate with costs they have already incurred and will continue to incur for on-site storage facilities.

      The difference is simply this: Whereas the original scheme, predicated on Yucca Mountain, involved the nuclear utilities paying for disposal of their spent fuel, the new scheme will involve the government paying for it, which is to say the taxpayers.

      Let me be clear: It is entirely possible that the nuclear industry, by way of lawsuit settlements stemming from an ironclad contract the government has clearly violated, will no longer have to pay the costs for disposal of the waste it generates. Instead, the taxpayer will foot the bill, in the form of settlements paid out of the Department of Justice's Justice Fund.

    4. Pingback: A Nuclear Waste Carol: Time to Reconsider Yucca Mountain

    5. Pingback: A Nuclear Waste Carol | The Conservative Papers

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.