In March of 2010, the Department of Energy (DOE) filed a motion to withdraw its licensing application to construct the geologic nuclear materials repository at Yucca Mountain. If successful, the action would essentially terminate the project. Yesterday, the Atomic Safety and Licensing Board, the three-judge panel charged with conducting licensing hearings for the Nuclear Regulatory Commission rejected that motion. This is a resounding victory for the future of nuclear energy. Though the Board’s decision was a surprise, it was the correct decision. Existing statute is clear that Yucca Mountain shall be the nation’s nuclear waste repository. So absent any technical or scientific justification for the motion to withdraw, moving forward with the President’s request would seem to violate the law. And that is precisely what the Board concluded.

The ASLB’s decision said:

Specifically, the NWPA does not give the Secretary [of Energy] the discretion to substitute his policy for the one established by Congress in the NWPA that, at this point, mandates progress toward a merits decision by the Nuclear Regulatory Commission on the construction permit. We conclude that Congress directed both that DOE file the Application [as DOE concedes] and that the NRC consider the Application and issue a final, merits-based decision approving or disapproving the construction authorization application. Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decision making process by withdrawing the Application. DOE’s motion must therefore be denied.

This does not mean that the fight to save Yucca Mountain is over. The decision can still be appealed to the full, five-member Nuclear Regulatory Commission. However, to overturn the ASLB’s recommendation, especially with such clear-cut conclusions, would raise serious questions about whether or not the NRC was being driven more by political concerns then by protecting public health and safety. Doing so would set a dangerous precedent and undermine the credibility of the NRC system.

It also does not mean that Yucca Mountain is open for business; it simply allows the NRC to move forward with its license review. In September of 2008, the NRC commenced a three-year, two-track review process to examine Yucca Mountain. One track will determine the technical merits of the facility. Over 100 technical experts are reviewing the application. The other track consists of hearings where parties can challenge the Yucca project. The ASLB is part of this second track.

Further, while the President might not be permitted to withdraw the application to construct Yucca Mountain, it is highly unlikely that he will actually move to construct it. However, Congress can provide funds and direction to ensure that the program continues moving forward.

In the end, however, this decision alone does not resolve the issues surrounding long-term nuclear waste management. Yucca remains controversial and uncertain and the United States has no comprehensive used fuel management strategy. The administration should build on this decision by putting forth a comprehensive strategy that:

  1. Acknowledges the importance of deep geological storage;
  2. Supports the NRC in its review of the Yucca application;
  3. Redirects the Blue Ribbon Commission on America’s Nuclear Future to consider Yucca Mountain in its deliberations;
  4. Transfers significant responsibility of Yucca Mountain to local Nevadan interests;
  5. Removes civilian radioactive waste management responsibilities from the Department of Energy; and that
  6. Makes nuclear waste producers more responsible for managing their own nuclear waste.

These reforms would streamline the development of a real solution by moving out of the arduous Department of Energy bureaucracy, give Nevadans control over how best to make Yucca Mountain feasible, and introduce market forces by giving waste produces the incentive to develop cost effective waste management techniques.