By Mark Waite
The Nov. 6 election in which President Obama was re-elected and U.S. Sen. Harry Reid remains Senate majority leader means Yucca Mountain will probably remain dead, at least politically.
But like the radioactive material it would store, the project continues to have a half-life of its own in the courts.
Nye County is one of the plaintiffs awaiting a decision by the U.S. Court of Appeals on whether the Nuclear Regulatory Commission and U.S. Department of Energy should be required to complete the license application.
Two other lawsuits have been filed over the project, consultant Cash Jaszczak said. The National Association of Regulatory Utility Commissioners is suing to cease payment of the .10 cent paid into the nuclear waste trust fund by ratepayers. Another suit by anti-nuclear groups asks for an environmental study of storing the material for many years while the program is in limbo.
A tireless advocate for the Yucca Mountain project who made numerous trips to Washington, D.C. and elsewhere, Commissioner Gary Hollis, will leave office after he lost a bid for his third term to Commissioner-elect Frank Carbone. But the county commission is expected to continue presenting a united front in favor of the project.
A new nuclear liaison will have to be appointed in January when a new commission chairman is elected. Hollis said it usually goes to the senior commissioner, which would be Commissioner Butch Borasky, though Commissioner Dan Schinhofen has been a strong proponent of Yucca Mountain since he was elected in 2010.
“I’ll still be the voice piece for it, just because I’m not commissioner doesn’t mean I’m not going to be working every day on Yucca Mountain. I’ll be working behind the scenes with legislators,” Hollis said.
Hollis hopes the court will rule on the completion of the license application and the safety evaluation report, which he said will show Yucca Mountain can be operated safely.
“I don’t expect my client to change its position since there was unanimous support on the commission for Yucca Mountain. I don’t expect there will be any change in continuation of the litigation,” said Robert Andersen, a Washington, D.C. attorney who represents Nye County in the lawsuit.
Now that the election is over, Andersen expects the court will rule on the writ of mandamus ordering the license application to be completed.
The petition for the writ of mandamus includes Nye County, along with Aiken County, S.C.,Washington state and the National Association of Regulatory Utility Commissioners, lawyers for which are optimistic two of the three judges will rule in their favor. But Andersen thinks Yucca Mountain will take a back seat to other pressing issues in Congress at this time.
“We don’t believe that the lame duck session of Congress is going to be able to address anything except the fiscal cliff issues and perhaps continue with some of its investigations. We don’t expect it to address Yucca Mountain specifically between now and the end of the year,” he said.
Schinhofen said opponents have to have an act of Congress to stop the project. He accused U.S. Sen. Harry Reid, D-Nev., who has proclaimed Yucca Mountain “dead as a doornail,” of ignoring the Nuclear Waste Policy Act, which mandates a geologic repository for nuclear waste.
“Our position is according to the resolution we adopted and the other five counties did, we’re asking the DOE and the NRC to move forward so we could hear the science and determine if it’s safe or not. On the other side, Harry refuses to move forward and they’re violating the law,” Schinhofen said.
The Republican candidate for the new 4th congressional district, Danny Tarkanian, was defeated by State Sen. Steven Horsford, D-North Las Vegas. Tarkanian would’ve been the first member of the Nevada congressional delegation to support Yucca Mountain. U.S. Rep. Joe Heck, R-Nev., just re-elected to another term to the 3rd congressional district, is in favor of hearing the science, Schinhofen said, while U.S. Rep. Mark Amodei, R-Nev., just re-elected to the 2nd congressional district, would like something done with the site. Democrat Dina Titus, just elected to the 1st congressional district, and U.S. Sen. Dean Heller, R-Nev., who won re-election, both oppose Yucca Mountain.
It was a non-issue in the state campaigns, where the Nevada Legislature remains opposed.
If the court grants their petition for a writ of mandamus on Dec. 14, Jaszczak said there will be a 45-day comment period.
“So it will be sometime in January before we have a real idea what is going to transpire and even then the question gets to be, what will that outcome be? If the outcome says that DOE needs to finish its work, they’ve now got roughly $11 million to complete the license application review and issue the safety evaluation report. Then it’s one more time back to the Congress,” Jaszczak said.
The Republican-led House of Representatives already suggested an appropriation of $75 million to continue the license application, Jaszczak said. Nye County still has a formal settlement agreement with the DOE to receive Payment Equal to taxes for 3 percent of the amount taken from the Nuclear Waste Trust Fund, he said.
“Whether or not we’ll be able to secure 3 percent of the $75 million is a question that’s yet to be asked or could be asked. None of that plays out until such time as there is an appropriation and it is money for Yucca Mountain,” Jaszczak said.
Nye County received regular Payments Equal to Taxes PETT funds from the DOE in five-year settlement agreements, that peaked with an $11.25 million payment in 2007. The Obama administration zeroed out funds for the project in 2009, but Nye County did receive $3.8 million in PETT funds in January.
Jaszczak agreed with Andersen — Congress has enough on its plate right now with the pending sequestration and fiscal cliff, plus investigations into the Benghazi, Libya terrorist attack that killed a sitting U.S. ambassador as well as health care.
“I suspect there isn’t going to be a lot of rush to deal with Yucca Mountain in the next month or two,” he said.
Congress is operating under a continuing resolution to fund the federal government through March. Jaszczak said it’s highly likely that will be extended for the second half of the federal fiscal year to October.
“Up to this point and through at least the end of the year, the board of county commissioners has been unanimous in support of the resolutions for active and constructive engagement with the federal government, DOE, relative to Yucca Mountain,” Jasczcak said.
There’s no reason to believe Nye County will abandon that after Hollis’ departure, he said.
Yucca Mountain wasn’t an issue in the 2012 election campaign, other than statements by Hollis the project could create 7,000 jobs and be a major economic development source. His opponent talked about using video conferencing and other tools to reduce travel costs.
Nye County took part in some activities on behalf of Yucca Mountain recently. In April 2011, three congressmen in favor of the project toured the site, including U.S. Rep. John Shimkus, R-Ill., chairman of the House Energy and Commerce Committee who called it, “a national treasure.” Afterwards, representatives of six rural counties, Lincoln, Mineral, Esmeralda, Churchill, Lander and Nye counties, voiced their support for the project.
In March, commissioners voted 4-0 to send a letter to U.S. Energy Secretary Steven Chu informing him Nye County wants to be considered as a site of a geological repository. That followed after the release of a report by President Obama’s Blue Ribbon Commission which calls for siting future, nuclear waste management facilities in communities that consent to them. The Blue Ribbon Commission suggested incentives be offered, but was silent on whether Yucca Mountain should be considered as a site. Carlsbad, N.M. has made a pitch to be a second geologic repository, using salt as a storage medium, Jaszczak said.
In June, the House voted 326-81 to provide $5 million to the affected units of local government, the counties surrounding Yucca Mountain, to continue studies on the project.
“The issue of geologic disposal and the back end of the fuel cycle is not going to go away. That issue is going to be dealt with by this nation at some point in time, some how and until the Yucca Mountain lawsuits and that process run its course, there’s no reason to believe it’s going to go away until that happens. It’ll surely be interrupted as long as there’s no money towards it,” Jaszczak said.
He wouldn’t answer directly when asked whether a county commissioner, in Hollis’ aftermath, should make frequent trips to lobby for Yucca Mountain, since the congressional delegation already knows the Nye County stance. But Jaszczak said if the court orders the license application to be completed, then Yucca Mountain is back in play.
“Then it will all be subject to consent based and incentives,” he said, referring to the Blue Ribbon Commission. “The state said there are no incentives for this. So until someone tells us what the incentives are, there’s no way of knowing what you’re saying yes to and what you’re saying no to.”