October 13, 2010
Chairman Gregory Jaczko
Nuclear Regulatory Commission
11555 Rockville Pike
Rockville, MD 20852
Dear Chairman Jaczko:
We are writing to express our concern regarding reports that you are unilaterally halting the Nuclear Regulatory Commission’s (NRC) review of the Department of Energy’s (DOE) license application for the nuclear waste repository at Yucca Mountain.
Recent media reports assert that you directed NRC staff to begin terminating review of DOE’s license application, consistent with the language of the Fiscal Year 2011 (FY11) budget request, despite the fact that Congress has yet to approve the FY11 budget.  This action has been justified in a guidance memo which argues, “the [continuing resolution] legislation does not include specific restrictions on spending funds. Therefore, the staff should continue its activities on the Yucca Mountain license application in accordance with the Commission’s decisions on the FY 2011 budget...” However, basing funding and operational decisions on submitted budget requests, not appropriations bills signed into law, is suspect. Even the NRC spokesman, David McIntyre, noted that he was “not sure whether there was a precedent for [your] decision.”
Your directive is even more alarming given the current status of the license application. As you know, the Atomic Safety and Licensing Board (ASLB) rejected DOE’s motion to withdraw the license application on June 29, 2010. According to the ASLB, DOE lacks the authority to overrule clear Congressional intent for NRC to review the license application of Yucca Mountain as a nuclear waste repository. As you know, Congress passed the Nuclear Waste Policy Act of 1982 (NWPA) to centralize the long-term management of nuclear waste, including construction of a safe and permanent nuclear waste repository. In 1987, Congress amended the NWPA by designating Yucca Mountain as the only option for a longer-term storage site by a vote of 237–181 in the House of Representatives and 61–28 in the Senate. Congress reaffirmed Yucca Mountain’s designation as the only option for a long-term storage site in 2002 by a vote of 306–117 in the House of Representatives and 60-39 in the Senate. Again in 2007, the House of Representatives overwhelmingly rejected, by a vote of 80-351, an attempt to eliminate funding for the Yucca Mountain nuclear waste disposal program. Additionally, on July 6, 2010, 91 Members of Congress sent DOE a letter expressing concern with their decision to immediately close Yucca Mountain.
The commissioners have not yet issued a ruling on appeal; therefore, unless the commission overturns the ASLB decision, the NRC must consider the license application. Your unilateral decision silences the opinions of the other commissioners on the pending appeal. Further, legal challenges in federal court are imminent, pending final action from the NRC. Your directive gives the appearance of coordinated action between you and DOE, which suggests an additional level of impropriety.
In light of the reports, we request answers to the following questions:
1. On what legal authority are you grounding your decision to terminate review of the license application based on a budget request, rather than existing law?
2. What specific actions have been taken or will be taken to terminate review of the license application, including all actions related to NRC staff review of the application?
3. How does halting NRC review of the license application influence the pending appeal of ASLB’s ruling?
4. How will your decision impact future legal challenges to DOE’s motion to withdraw?
5. How are you ensuring that NRC is prepared to resume consideration of the license application if the commission and courts uphold ASLB’s decision?
6. What communication specifically relating to this decision have you had with the offices of Secretary of Energy Chu, Senate Majority Leader Reid, or the White House?
Please respond by October 27, 2010. We appreciate your cooperation.
Jim Sensenbrenner Joe Barton
Ranking Member Ranking Member
Select Committee on Energy Independence and Energy and Commerce Committee
Ralph Hall Doc Hastings
Ranking Member Ranking Member
Science and Technology Committee Natural Resources Committee
 U.S. Nuclear Regulatory Commission, “Guidance Under a Fiscal Year 2011 Continuing Resolution.” October 4, 2010.
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