Nye County, NV, the local community that would host the Yucca Mountain used nuclear fuel repository if is completed, really wants the facility to be built. The leaders of the county and the people that continue to select them as their representatives recognize that the facility would generate hundreds of well-paying jobs without imposing an unreasonable risk on the community.
The State of Nevada disagrees. This dispute between the local people and a remote state government is one of the reasons why the “consent-based” approach proposed by the President’s Blue Ribbon Commission on America’s Nuclear Future is fraught with predictable pot holes and opportunities for the erection of impassable road blocks.
One of the impassable road blocks with the currently selected location is the Senate Majority Leader, who has managed to install two hand-picked Chairmen of the Nuclear Regulatory Commission in a row. Though Chairman Allison Macfarlane is far more collegial and pleasant to be around than Chairman Greg Jaczko, she is still quite firm in her conviction that Yucca Mountain is not the right place to store used nuclear fuel. She has even written a book supporting her conclusions.
However, she recently denied a motion by Nye County to recuse herself from any Commission decisions related to Yucca Mountain. Here is a quote from her statement explaining that refusal:
Nye County’s Motion for Recusal is premised upon the mistaken notion that I have somehow prejudged DOE’s license application. I can state without hesitation that I have not prejudged the technical, policy, or legal issues in this adjudicatory proceeding, and that my expertise will enhance the Commission’s deliberations and decision-making. In fact, I have not looked at the Department of Energy’s (DOE) license application, the Nuclear Regulatory Commission (NRC) staff’s safety or environmental reviews, or considered how to apply the law or NRC regulations to determine the adequacy of the application, and I have not made up my mind on any of the issues raised by the application.
I realize that there is some wiggle room in that statement because Chairman Macfarlane may very well have not made any judgements about the specifics of the DOE license application. She is most likely being absolutely truthful when she states that she has not even looked at the application or any of the associated work done by the Commission staff.
However, those statements gloss over the fact that Macfarlane has already made a decision, based on her own independent research and judgement, that used nuclear fuel should not be stored in the Yucca Mountain repository. She explained her position to me during an Atomic Show interview conducted on June 15, 2007.
This part of the conversation can be found at time stamp 53:56. Here is a quote from the written transcript of that interview:
At Yucca Mountain. The one at Yucca Mountain. Yeah, but in general, and we say this outright in the beginning of the book that we think that repositories are the solution to the problem of nuclear waste.
Where should they be?
Where should they be? In a place that is not seismically or volcanically active and in a place that offers a reducing chemical environment.
Reducing chemical is like?
No oxygen present. Usually it means below the water table. And the rest of the world is going to be doing that. And Yucca Mountain violates two of what the IAEA has pointed out are four siting criteria, so it wasn’t a good choice.
Chairman Macfarlane made her decision about Yucca Mountain many years ago; there is nothing in any record that indicates that she has reconsidered that decision or that she will accept evidence that refutes her opinion. Even if she has not looked at the specifics of the DOE license application, she clearly has determined that Yucca Mountain is not the right place for a repository. Recusal is the proper course of action if she has any respect for the American system of judicial decision making.
Here is how Chairman Macfarlane attempts to explain and justify her decision.
Indeed, it is often precisely because of their knowledge of and intense involvement in a specific regulated field that persons are appointed to lead regulatory commissions and, ultimately, to issue adjudicatory decisions with respect to issues arising in that field. Accordingly, Commissioners have consistently considered the issue of recusal not simply by inviting litigants to peruse past writings and speeches in an effort to identify disqualifying knowledge or views about a particular issue. Instead, the relevant inquiry has focused on whether a particular Commissioner possesses knowledge from an extrajudicial source and that knowledge has served or threatens to serve as the basis for a judicial decision, or whether judicial conduct demonstrates a pervasive bias or prejudice. These considerations reflect the fundamental principle that a Commissioner “should disqualify himself only if ‘a reasonable man, cognizant of all the circumstances, would harbor doubts about the judge’s impartiality.’”
The first emphasized statement in the above quote is true in this case; it is obvious to nearly every observer that Chairman Macfarlane received the strong support of Senator Reid “precisely because of” her intense involvement in the effort to stop the placement of used nuclear fuel into the Yucca Mountain repository. It certainly had nothing to do with her technical expertise associated with the operation of nuclear energy facilities, radioactive source material, or nuclear safety. With regard to the second emphasized statement, this reasonable man harbors grave doubts about the judge’s impartiality.
Aside: I will admit that there are some people who consider me to be quite unreasonable in my unwavering support for the continued development of nuclear energy in the United States and around the world. End Aside.
Even though I support the importance of enforcing existing laws until they are changed, I am still convinced that the United States made a grave mistake in
1976 1977 when it decided to turn a temporary pause into a permanent moratorium and put the nascent used fuel recycling industry out of business. Without that fateful decision by a president who falsely advertised that he had been trained as a nuclear engineer by the US Navy, we would never had needed the Nuclear Waste Policy Act of 1982 and there would never have been any effort to “screw Nevada” by selecting it as the site for a permanent repository for lightly used fuel.
We would be well on our way to developing an economy based on more abundant and less polluting fission fuels instead of hydrocarbons. It is not too late for the current Administration to announce its enthusiastic support of used fuel recycling. If they did that, I’m pretty sure that most nuclear advocates would stop trying to spend tens of billions of dollars to move valuable material from many safe places located near appropriate industrial infrastructure to one reluctant, remote, but also acceptably safe location.
PS – It will be interesting to watch today’s Energy and Commerce Committee hearing to see how Chairman Macfarlane responds to questioning about the NRCs plans to adhere to the Nuclear Waste Policy Act.
Correction (October 28, 2013) An earlier version of this post included an historically inaccurate description of the decision to halt used fuel recycling. The date of that decision was corrected to 1977 and the sequence was clarified to indicate that there was a temporary pause implemented in 1976 that was made permanent in 1977.