SEATTLE – Attorney General Rob McKenna today announced that Washington filed a new lawsuit against the Nuclear Regulatory Commission. The suit is a major development in the state’s longstanding fight to ensure timely cleanup of 56 million gallons of nuclear waste stored in Hanford’s leaky underground tanks, and continuation of the process to license Yucca Mountain as a deep geologic disposal site.
The new suit, which is a petition for a writ of mandamus filed in the U.S. Court of Appeals for the District of Columbia Circuit Court, alleges that the Nuclear Regulatory Commission is “unreasonably withholding agency action.”
“It’s the federal government’s responsibility to clean up Hanford,” McKenna said. “This lawsuit seeks to compel the Nuclear Regulatory Commission to immediately resume consideration of the application to build and operate a repository at Yucca Mountain.”
McKenna acknowledged the work of Senior Counsel Andy Fitz, Senior Counsel Todd Bowers, who are leading the state’s case. He also acknowledged Ecology Division Chief Mary Sue Wilson and Managing Assistant Attorney General Michael Dunning for their work on the case.
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 the direction of Congress, the U.S. Department of Energy (DOE) filed an application with the Nuclear Regulatory Commission in 2008 for a license to construct the repository. In January 2010, President Obama and DOE announced they would withdraw the application.
The Attorney General’s Office has strenuously argued that removing Yucca Mountain as the nation's primary nuclear waste repository would significantly set back clean-up at Hanford and put at risk both the state’s environment and its people.
The latest case alleges that the Nuclear Regulatory Commission has failed to issue a decision within the three-year timeline required by the Nuclear Waste Policy Act. Moreover, the case alleges the commission has failed to “consider” the U.S. Department of Energy’s application as required by that Act by not resolving the matter of DOE’s motion to withdraw and, at the same time, closing out agency review of the application.
“The determination of whether Yucca Mountain should open should be made on the merits of the Department of Energy’s license application, as Congress prescribed in law,” Fitz said.
The NRC’s required consideration of DOE’s application is a mammoth undertaking that involves an independent staff review and a concurrent contested adjudication in which parties can challenge legal and technical aspects of the application, McKenna explained. Commissioners then take a Safety Evaluation Report and the adjudication order into account in determining whether to authorize construction.
The Attorney General’s Office filed an earlier suit alleging violations by the U.S. Department of Energy and seeking to stop DOE from unilaterally terminating the Yucca Mountain development process. The U.S. Court of Appeals for the D.C. Circuit ruled the suit was premature because the Nuclear Regulatory Commission has not issued a decision on the Department of Energy’s motion to withdraw that application. In its opinion, however, the court recognized the possibility of legal action against the NRC based on the circumstances giving rise to today’s suit.
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