Between 1944 and 1989, the US produced plutonium for use in nuclear weapons at the DOE’s Hanford Nuclear Reservation in the Tri-Cities. Washington hosts and oversees the cleanup of nearly two-thirds of the nation’s defense-related, high-level radioactive waste at Hanford.
Roughly 53 million gallons of nuclear waste is stored in 177 large underground tanks—of which 149 are 42 years beyond their expected 25-year design life. Of the 149 tanks, more than one-third are known or suspected to be leaking, releasing roughly 1 million gallons of waste to Hanford’s surrounding soils. Hanford lacks the storage capacity to retrieve the waste from these tanks until the waste treatment and disposal process is underway.
Washington’s $12.3 billion Waste Treatment Plant (WTP) continues to be designed and constructed to meet standards specific to the Yucca Mountain facility. Design and engineering for the WTP is 78 percent complete and construction is 48 percent complete.
In 2002, Congress designated Yucca Mountain as the nation’s sole current repository site for deep geologic disposal of high-level radioactive waste and spent nuclear fuel.
At that time, the Secretary of Energy concluded that, “The amount and quality of research the DOE has invested… done by top-flight people…is nothing short of staggering…I am convinced that the product of over 20 years, millions of hours, and four billion dollars of this research provides a sound scientific basis for concluding the site can perform safely.”
Congress then directed DOE to file a license application for the Yucca Mountain site with the Nuclear Regulatory Commission (NRC) and thereby commence a formal evaluation and licensing process overseen by the NRC.
In January 2010, President Obama, Secretary Chu and DOE determined they would withdraw with prejudice the application submitted by DOE to the NRC for a license to construct a permanent repository at Yucca Mountain, Nevada, for high-level nuclear waste and spent nuclear fuel.
Also that month, President Obama, Secretary Chu and DOE chose to to unilaterally and irrevocably terminate the Yucca Mountain repository process mandated by the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270.
On March 2, 2010, Attorney General Rob McKenna took the first steps toward formally intervening to oppose the federal Department of Energy’s (DOE) pending motion to withdraw “with prejudice” its license application for the Yucca Mountain radioactive waste repository. As required by law, the state alerted other parties to the license proceeding of its intent to seek intervention.
On March 3, 2010, Washington filed its petition to intervene in the Yucca Mountain licensing proceeding before the Nuclear Regulatory Commission.
The state argued its case before the NRC’s Atomic Safety and Licensing Board on June 3 in Las Vegas. The Nuclear Regulatory Commission’s (NRC) Atomic Safety and Licensing Board on June 29, 2010, denied the federal Department of Energy’s (DOE) motion to withdraw “with prejudice” its license application for the Yucca Mountain radioactive waste repository, saying the agency lacked authority to withdraw the application under the law.
On April 13, 2010, Washington filed suit in the U.S. Court of Appeals for the District of Columbia Circuit to prevent the federal Department of Energy (DOE) from irrevocably terminating the Yucca Mountain radioactive waste repository by withdrawing “with prejudice” its license application for the repository.
The state argues that DOE’s decision to “irrevocably terminate the Yucca Mountain project in favor of an unknown and yet-to-be identified alternative” violates:
• The Nuclear Waste Policy Act which required the agency to submit its licensing application upon Congress approving Yucca Mountain as a repository;
• The National Environmental Policy Act which requires federal agencies to prepare an environmental impact study with alternatives for all “major federal actions significantly affecting the quality of the human environment,” such as irrevocably terminating the Yucca Mountain project with no alternative at hand; and
• The Administrative Procedures Act because DOE “decisions and actions in terminating the Yucca Mountain project in favor of an unknown … alternative, including its … cryptic assertion that Yucca Mountain is ‘not a workable option’ … is arbitrary and capricious.”
Oral argument on this case took place on March 22, 2011 in Washington, DC, before Chief Judge David B. Sentelle and Judges Janice Rogers Brown and Brett M. Kavanaugh.
On July 1, the U.S. Court of Appeals for the D.C. Circuit rejected the our request to stop the federal Department of Energy (DOE) from unilaterally terminating the Yucca Mountain development process, ruling the suit was premature because the Nuclear Regulatory Commission has not issued a decision on the merits of the application to build the Yucca Mountain repository or on reviewing the Atomic Safety and Licensing Board’s order denying the Department of Energy’s motion to withdraw that application.
Following this decision, the state, together with fellow petitioners from the Tri-Cities area; South Carolina; Aiken County, SC; Nye County, NV; and the National Association of Regulatory Utility Commissioners, filed a petition in late July, 2011 seeking a writ of mandamus against the NRC. The petition sought to compel the NRC to issue a decision in its review of the Atomic Safety and Licensing Board’s order. It also sought to compel the NRC to continue considering DOE’s application and to reach a merits decision on that application, reversing an “orderly closure” of such review the NRC had begun implementing in late 2010.
On September 9, 2011, the NRC issued a Memorandum and Order in its review of the Atomic Safety and Licensing Board’s order. The NRC announced it was deadlocked in a 2-2 vote on whether to affirm or reverse the order. Under the NRC’s internal procedures, this means the Atomic Safety and Licensing Board’s order denying the Department of Energy’s motion to withdraw its application remains intact. At the same time, however, the NRC directed the Atomic Safety and Licensing Board to close out all pending issues before it by September 30, 2011. The Atomic Safety and Licensing Board has since issued an order suspending the Yucca Mountain license adjudication.
On May 2, 2012, Washington State Senior Counsel Andy Fitz appeared before the US Court of Appeals for the District of Columbia as lead counsel for several jurisdictions on the mandamus case, urging the court to force a federal regulatory agency to move forward in the licensing process, issue a decision within 14 months and break the logjam preventing completion of a national repository for America’s high-level treated nuclear waste.