County’s Yucca lawyer goes on warpath

WASHINGTON — The legal war over Yucca Mountain resumed with force on Friday with a demand that the chairman of the Nuclear Regulatory Commission recuse herself or be disqualified from the agency’s about-to-resume work on the proposed nuclear waste repository.

Organizations that favor the Nevada site challenged Allison Macfarlane, who took over leadership of the five-member NRC board in July 2012 and who previously studied and spoke about Yucca Mountain as an academic.

In a 24-page motion filed with the NRC, an attorney for Nye County, Nevada, argued Macfarlane was not impartial, and already has reached conclusions about key technical issues surrounding the site’s bid for a license.

“A reasonable person would certainly harbor doubts about Commissioner Macfarlane’s impartiality because of her publications, congressional testimony and statements critical of the Department of Energy’s technical, legal and policy approach to the Yucca Mountain licensing,” according to the motion.

In addition, it said, “many believe” Macfarlane was chosen to head the NRC “precisely because she supports DOE’s attempt to withdraw the Yucca Mountain license application.”

Macfarlane declined to comment, according to NRC spokesman David McIntyre. He said by agency precedent it would be up to Macfarlane to decide whether to recuse, a decision she would explain in writing, “in due course.”

The motion filed by Nye County attorney Robert Andersen is the first movement on Yucca Mountain since a federal appeals court last week ordered the NRC to resume its repository licensing process that was halted in 2010.

The decision also presents the first opportunities for Macfarlane to weigh in on Yucca Mountain as a member of the NRC. She was confirmed as chairman in July 2012 to succeed Gregory Jaczko, a former aide to Sen. Harry Reid, D-Nev.

Jaczko’s tenure was riddled by controversy over his handling of Yucca Mountain and other matters, including instructing staff to wind down its work on the Nevada project in 2010 as the Obama administration was taking other steps to shelve the program.

Macfarlane, a geologist and associate professor of environmental science at George Mason University, was nominated by President Barack Obama and supported by Reid to become chairman shortly after Jaczko announced his resignation in May 2012. She was confirmed without dissent on June 29, 2012 in a deal that paired her with a Republican nominee.

Macfarlane was reconfirmed last month to a full five-year term as NRC chairman.

It would not be the first time an NRC commissioner has been called upon to recuse from Yucca Mountain matters. Commissioner George Apostolakis has recused himself stemming from a project review he performed in 2007-2008 for Sandia National Laboratories.

Commissioners William Magwood and William Ostendorff were called on to recuse themselves stemming from comments they made about the project at a February 2010 Senate hearing. Both rejected the call, saying they had not prejudged the case.

Further, Democrats have accused commissioner Kristine Svinicki, a Republican, of not being forthcoming about an association with the repository project when she worked during the 1990s as a engineer in the office that managed the site. She has said her work was not directly related.

In Macfarlane’s defense, Nevada official Robert Halstead said she was extensively vetted during the Senate’s confirmation process, in part because of the political sensitivity of the NRC post and because of the Yucca Mountain controversies that had engulfed Jaczko.

“Some real reasonable people in the Senate took a really hard look at her, including her writings,” said Halstead, executive director of the Nevada Agency of Nuclear Projects. “She was very carefully and fully vetted.”

Nye County’s motion said it was being joined by South Carolina, Aiken County in that state, and the National Association of Regulatory Utility Commissioners. Those entities along with others were plaintiffs in the just-decided lawsuit that charged the NRC acted illegally by shuttering the licensing process without consent from Congress.

Macfarlane, who holds a doctorate in geology from the Massachusetts Institute of Technology, served on the blue ribbon commission that studied nuclear waste for two years.