Extraordinary Facts, Extraordinary Remedies: The Nuclear Waste Disposal Saga

Vol. 53 No. 3

By

Ellen C. Ginsberg is vice president, general counsel and corporate secretary of the Nuclear Energy Institute (NEI). Before joining NEI she practiced with the Washington, D.C., law firm Swidler & Berlin and clerked for the NRC Atomic Safety and Licensing Board Panel. Kaitlin Sweeney is a contract attorney for the Nuclear Energy Institute and a recent graduate of Roger Williams University School of Law.

The problem of what to do with nuclear waste in this country has been a vexing conundrum for more than 30 years. Nuclear waste has inspired heated rhetoric by those on all sides of the issue and tends to be a lightning rod for the nuclear industry. One result of extreme rhetoric and political opposition is stagnation in solving the challenge of nuclear waste disposal. When government agencies fail to meet their statutory mandates and contractual obligations relating to nuclear waste, injured parties may petition the courts to force compliance. In August1 and November2 2013, the United States Court of Appeals for the District of Columbia Circuit issued two key decisions compelling the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE) to carry out their respective obligations under the Nuclear Waste Policy Act (NWPA).

Both of these decisions are the culmination of years of conflict between the federal government and nuclear utility companies, which have led to political battles, local opposition to a repository, and litigation. This article will address the extraordinary measures taken throughout the past three decades to stall progress on a permanent nuclear waste disposal solution, including the actions of an administration that, without congressional approval, abandoned 30 years of work by shutting down the Yucca Mountain project. This article will also highlight the facts that led to In re Aiken County and NARUC v. DOE and the decisions rendered by the D.C. Circuit.

Extraordinary Facts

Yucca Mountain’s Contentious History. In 1982, Congress recognized the need for a centralized long-term management facility for commercial nuclear waste disposal.3 The nation’s civilian nuclear waste had increased substantially and there was no permanent disposal solution. In an attempt to solve the problem, Congress passed the NWPA,4 which created a statutory scheme for DOE to follow when disposing of the nation’s nuclear waste. Under the NWPA, DOE was required to begin removal, transportation, and disposal of waste from commercial power plants by January 31, 1998.5 In exchange for DOE’s taking possession of the nuclear waste, nuclear plant operators are obligated to pay one-tenth of one cent per kilowatt-hour generated into the Nuclear Waste Fund (NWF).6 The fee is intended to fund the disposal program established under the NWPA.7

The NWPA empowered DOE to enter into contracts with nuclear utilities.8 To streamline the process, DOE created a single “Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste” that incorporated the January 31, 1998, deadline into the contract language.9 The language of the Standard Contract parallels that of the NWPA and requires DOE to take possession and dispose of the nuclear waste in exchange for the fee.10

In 1987, after reviewing the secretary of energy’s three site candidates for a permanent disposal facility,11 Congress selected Yucca Mountain in Nevada as the sole location for the repository and amended the NWPA accordingly.12 Following the 1987 amendments and in accord with the NWPA, DOE was obligated to perform an extensive site characterization process,13 which included conducting environmental testing and soliciting concerns from the local communities before nominating the site to the president.14

One of the first signs of trouble came on May 25, 1994, when DOE issued a notice of inquiry (NOI) soliciting the views of affected parties on DOE’s position that it was not statutorily obligated to begin accepting fuel on January 31, 1998, in the absence of an “operational repository.”15 After receiving comments on the NOI, DOE issued its final interpretation of nuclear waste acceptance issues in 1995, affirming its original position that in the absence of a repository or interim storage facility, DOE had no “unconditional statutory or contractual obligation to accept high level waste and spent nuclear fuel beginning January 31, 1998.”16 This formally established the position that DOE had no intention of meeting the 1998 deadline. In fact, DOE disclosed its view that it may not accept fuel until 2010, 12 years passed the deadline.17

Litigation. After publication of final NOI in 1995, Indiana Michigan Power Company sought judicial review of DOE’s final interpretation that it had no obligation to begin accepting spent nuclear fuel until the completion of the Yucca Mountain facility.18 Applying a Chevron19 analysis, the D.C. Circuit invalidated DOE’s interpretation as contrary to the plain meaning of the NWPA.20 The court rejected DOE’s interpretation of the statute and stated that the Standard Contract and NWPA created an obligation in DOE, “reciprocal to the utilities’ obligation to pay, to start disposing of spent nuclear fuel no later than January 31, 1998.”21 In response to the D.C. Circuit decision, DOE informed nuclear utilities that it would be unable to comply with the January 31, 1998, deadline, citing that “it was waiting for the results of the Yucca Mountain Project Viability Assessment before proceeding” further.22

In 1997, shortly after Indiana Michigan, concerned states and nuclear utilities separately filed a petition for writ of mandamus,23 requesting that DOE comply with the holding in Indiana Michigan and that “payments to the Nuclear Waste Fund be placed in escrow unless and until DOE meets its obligations to dispose of SNF.”24 DOE argued that the “unavoidable delay”25 provision of Article IX of DOE’s Standard Contract supported its conclusion that, without a permanent repository at Yucca Mountain, DOE was excused from taking nuclear fuel by the 1998 deadline.26 The D.C. Circuit again disagreed with DOE’s assertion that the lack of a repository was an “unavoidable delay,” noting that this argument was previously rejected in Indiana Michigan.27 Refusing to grant a broad writ of mandamus, the court concluded that utilities potentially had adequate remedies in the contract. However, the court granted the writ in part by “precluding DOE from excusing its own delay in the future on the grounds that it has not yet prepared a permanent repository or interim storage facility.”28

Many nuclear utilities awaited the expiration of the January 31, 1998, deadline and then filed their claims in the U.S. Court of Federal Claims.29 Judges in the Court of Federal Claims (CFC) came to opposite conclusions30 as to whether the Standard Contract provided adequate relief. 31 These conflicting decisions led to the 2000 ruling in Maine Yankee Atomic Power Co v. United States, which paved the way for future breach of contract claims.32 In Maine Yankee, DOE recognized it could not use the “unavoidable delays” provision of the Standard Contract and instead argued it was “an avoidable delay”33 for which the contract provided the remedy of equitable adjustment.34 The court disagreed, reasoning that the “avoidable delays” provision applied only to routine delays and “not to breaches of critical and central obligation of the contract, such as failure to begin performance by the statutory deadline.”35 The court further reasoned that any relief in the form of a “charge or schedule adjustment” hardly serves as adequate relief,36 that DOE had breached the contract by failing to perform, and that utilities did not have to exhaust all administrative remedies.37 After years of battling DOE, signatories to the Standard Contract were now able to file breach-of-contract claims with the CFC without first exhausting administrative procedures.38

In an effort to mitigate its liability, DOE offered to modify contracts on an individual basis by returning some Nuclear Waste Fund payments to the utilities, if the utility was willing to relinquish all future claims against DOE.39 DOE signed one such agreement with Exelon, prompting a 2002 lawsuit by Alabama Power Co. that challenged the validity of the agreement and use of the Nuclear Waste Fund for the purpose proposed by DOE. 40 The Eleventh Circuit Court of Appeals invalidated the agreement and noted that under the NWPA, NWF could only be used for the “permanent disposal” of waste.41 The court noted “if the Department could pay for its own breach out of a fund paid for by the utilities, the government would never be liable.”42

A New Direction. Litigation in federal court regarding environmental, procedural, and breach of contract challenges persisted through much of the early 2000s. In 2002, after more than 15 years of site analysis and with a new administration, Secretary of Energy Spencer Abraham presented the Yucca Mountain site recommendation to President Bush.43 The next day President Bush approved Yucca Mountain and stressed the importance of the repository as “necessary to protect public safety, health and this nation’s security.”44

Soon after Yucca’s approval, Nevada officials submitted a formal “Notice of Disapproval” to Congress, vetoing the site as provided for in the NWPA.45 The NWPA also provides that Congress can override the host state’s objection by passing a joint resolution of siting approval.46 Congress passed the joint resolution in July 2002 and finally, 20 years after the enactment of the NWPA, the site characterization stage was over and the licensing stage began.47

At last, in June 2008, after all of the political turmoil and litigation, DOE submitted its license application to construct Yucca Mountain Repository to the NRC for approval.48 The NWPA requires the NRC to grant or deny the license application within three years of submission.49 Progress was again halted when President Obama took office after campaigning on the promise to shut down Yucca Mountain, calling it an unsuitable site but not identifying any technical impediment to licensing.50

Extraordinary Remedies

In August and November 2013, two seminal judicial developments occurred in the Yucca Mountain story. Each decision addresses distinctive aspects of the NWPA: the suspension of DOE’s licensing application and the nuclear waste fund fee. Both decisions stand for the proposition that executive branch agencies must carry out their statutory mandates, which is to say, follow the law as directed by Congress.

In re Aiken County. In March 2010, the Department of Energy in an “abrupt volte-face,”51 attempted to withdraw its NRC license application with prejudice. 52 This action by DOE is arguably the most extraordinary and deliberate act to halt the past 30 years of work on nuclear waste disposal to date. DOE rationalized withdrawal as necessary to avoid any further expenditure of funds on a licensing project that was being terminated.53 The request to withdraw “with prejudice” evidenced that DOE and the administration had no intention of ever refiling the license application for Yucca Mountain.54 In June 2010, the NRC Atomic Safety and Licensing Board (ASLB), an independent adjudicatory body within the NRC, held DOE’s withdrawal of the application violated the NWPA.55 The ASLB reasoned that Congress directed DOE to submit the application and for the NRC to review it.56 The ALSB continued by saying that DOE “may not single-handedly derail the legislated decision-making process by withdrawing” the Yucca Mountain license application.57

After continued opposition from the administration and with the licensing process at a standstill, industry stakeholders, several states, and Aiken County, South Carolina, initiated litigation seeking a writ of mandamus to compel the NRC to complete the review of the Yucca license application and issue a final decision. On July 1, 2011,58 the D.C. Circuit dismissed the case, ruling that DOE’s decision to terminate Yucca Mountain did not represent final agency action and therefore lacked ripeness.59

On September 9, 2011, the four NRC commissioners, having reviewed the request to reverse the ASLB’s decision, remained divided on the question. The order the commission issued was based on a 2-2 tie vote, meaning the licensing board’s decision would stand. On September 30, 2011, the ASLB suspended the adjudicatory proceeding because the NRC lacked appropriated funds, but left their denial of DOE’s motion for withdrawal as the law of the case.60

The suspension was a direct result of the Obama administration’s decision not to request funding for Yucca Mountain activities in the FY 2012 budget.61 Gregory Jaczko, chairman of the NRC at the time and former staffer to Senator Harry Reid, was later investigated by the Office of the Inspector General regarding allegations that the he had unilaterally and improperly forced discontinuation of the Yucca Mountain license application review. Further, it was alleged he prevented the commission from ruling on the ASLB’s decision to deny DOE’s withdrawal of its Yucca license application.62 The Office of the Inspector General found that the chairman did unilaterally terminate NRC’s review of the Yucca Mountain license application and misled and concealed information from the other commissioners.63 Chairman Jaczko later stepped down of his own accord.

In 2012, In re Aiken petitioners refiled asking the court to order a writ of mandamus to compel the NRC to use the remaining $11.1 million in appropriated funds to review Yucca Mountain’s license application.64 The NRC argued that it did not have sufficient appropriated funds to carry out a meaningful review to render a decision for Yucca’s licensing application.65 Rather than granting the writ of mandamus to compel NRC to use the remaining $11.1 million in appropriated funds, the court decided to hold the case in abeyance for six months pending FY 2013 appropriations.66 The court reasoned the upcoming appropriations might affect NRC’s ability to carry out Yucca Mountain’s licensing application.67

On August 13, 2013, one year after the court held the case in abeyance, Congress had not “altered the landscape” and the D.C. Circuit revisited petitioners’ motion for writ of mandamus.68 The court stated that they owed Congress the “constitutional respect” to indicate whether it intended to fund the project and having not done so and all alternatives exhausted, the court issued a 2-1 decision granting the extraordinary remedy of a writ of mandamus against the NRC.69 The court framed its decision by stating it was not taking sides in the underlying policy debate, but rather addressing the issue from a separation of powers principle that the president, as well as agencies such as the NRC, generally must follow statutory mandates.70 The court said, “[T]he Commission is simply flouting the law” and the “President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”71 The court also disagreed with the NRC’s argument that, because there were insufficient funds necessary to carry out the law, the commission should not be required to perform.72 The court articulated that the commission had $11.1 million appropriated for the Yucca Mountain proceeding and that “an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates.”73

The NRC was later denied rehearing and on November 18, 2013, the commission ordered the NRC staff to “resume the licensing process for the Department of Energy’s Yucca Mountain high-level radioactive waste repository construction authorization application.”74 The commissioners noted that in light of the limited budget constraints, the staff must engage in an incremental approach to make the most of the $11 million in unobligated carryover funding appropriated from the Nuclear Waste Fund.75 Additionally, the commissioners requested that DOE complete the supplemental EIS with the unobligated available carryover funds.76

The Aiken County decision illustrates the extraordinary lengths to which utilities, operating under a standard contract with DOE, resorted, to obtain performance. Senator Harry Reid and the Obama administration attempted through every avenue to terminate the Yucca Mountain proceeding by withdrawing funds, delaying performance, or avoiding statutory and contractual obligations as if they didn’t exist.

NARUC v. DOE. The in re Aiken County decision dealt with the NRC’s requirement to review the Yucca Mountain license application while on another front the National Association of Regulatory Utility Commissioners (NARUC) and the Nuclear Energy Institute (NEI) challenged the very heart of the Standard Contract. NARUC and NEI filed suit in the D.C. Circuit on behalf of their members, seeking suspension of the one-tenth of a cent per kilowatt-hour fee as a violation of the Nuclear Waste Policy Act.77 Under the NWPA, the secretary of energy is obligated to “evaluate whether collection of the fee will provide sufficient revenues to offset programs costs.”78 The fees are intended to cover the full costs of a nuclear waste disposal facility. Currently, fees total approximately $750 million79 annually and estimates of the interest and investment income is over $1 billion and growing.80

The government argued against suspension of the fee, claiming the secretary was unaware of any evidence showing a “reasoned and sound basis for determining that excess or insufficient revenues are being collected.”81 DOE’s alternative justification to refute suspension was that the secretary could rely on Yucca Mountain as a proxy to determine the fee.82 The court disagreed with the government’s contention that the secretary of energy was not obligated to determine the fee’s adequacy unless someone brought evidence to the secretary’s attention.83 The court called this logic akin to an ostrich putting its head in the sand; so long as the secretary was “unaware” of any information then he was not obliged to propose an adjustment.84 Further, the court reasoned that the secretary was not only responsible for reviewing the fee’s adequacy, but also had an affirmative obligation to conduct an annual fee analysis.85 Additionally, the court articulated that the administration could not deem Yucca Mountain unworkable and in the same sentence utilize it as a proxy to estimate the fee.86 The court agreed with petitioners that the secretary’s determination was legally inadequate, but found it premature to order the fee to zero.87 Instead and “in light of the departmental disposition to delay,” the court ordered a remand and gave the secretary of energy six months to comply with the NWPA.88

On January 16, 2013, following the remand, DOE released its updated fee adequacy report.89 The government filed these documents with the D.C. Circuit and on January 31, 2013, NEI and NARUC filed a motion to reopen the proceeding to review DOE’s recent efforts to comply with the D.C. Circuit’s remand. On February 27, 2013, the D.C. Circuit granted the motion to reopen the case.90 Petitioners asked the court to order DOE to promptly submit a proposal to Congress to reduce the NWF fee to zero. DOE argued that it should be given another opportunity to provide a fee assessment.91

On November 19, 2013, in a sharply worded opinion, the court ordered DOE to request Congress set the fee to zero.92 The court disagreed with DOE’s request for remand saying DOE’s position is “so obviously disingenuous that we have no confidence another remand would serve any purpose.”93 Further, the court reasoned the secretary’s analysis of the fee “set forth an enormous range of possible costs,” that are so large as to be an “absolutely useless analytical technique.”94 The court compared the government’s presentation to the musical “Chicago,” where the lawyer sings, and “give them the old razzle dazzle.” Further, the court chided the secretary, saying he could not simply comply with his statutory obligation by “concluding that a conclusion is impossible.”95

Petitioners argued that DOE’s strategy is predicated on assumptions directly contrary to law.96 The court agreed, saying DOE is operating under glaring conflicts between statutory requirements and its strategy report.97 The court noted, the statute requires Yucca Mountain to be the geological disposal site,98 but DOE’s report says whatever the site may be, it will not be Yucca.99 Additionally, the statute states Congress is allowed to override a host state’s disapproval,100 where DOE’s report contradicts statutory language, requiring consent of the jurisdiction where the permanent repository is to be sited.101 Further, the statute says completion of a repository shall be in 1998,102 and in contrast DOE’s report states it will be “somewhere” by 2048.103 “The court stated these assumptions were a wholesale reversal of a statutory scheme.”104 Finally, the court concluded that the secretary is ostensibly unable to conduct a legally adequate fee analysis and for that reason a proposal should be submitted to Congress to change the fee to zero and relieve the industry of its $750 million annual fee payment.105

Soon after the decision, DOE filed for an extension of time to seek rehearing.106 NEI and NARUC opposed DOE’s request for enlargement of time107 and countered by asking the court for an immediate and expedited issuance of the mandate.108 The court denied DOE’s request and granted NEI’s and NARUC’s request for an expedited issuance of the mandate.109 On January 3, 2014, DOE filed a “Petition for Rehearing and Rehearing En Banc” arguing the court improperly substituted its judgment for that of the secretary and Congress and violated the NWPA and Administrative Procedure Act.110 Also on January 3, 2013, DOE submitted its proposal to “zero out” the fee to Congress by sending a letter to the president of the Senate, Joe Biden. In another questionable act, DOE sent the letter by mail so that the formal notice did not begin until January 28 in the House of Representatives and January 14 in the Senate. In the letter, the secretary asserts that he is being forced by the court to submit this fee proposal and alleges that the proposal is not consistent with the process established under the NWPA for adjusting the fee.111 On February 10, 2014, petitioners’ answer to DOE’s rehearing requests argued that DOE had not met the high threshold for rehearing and rehearing en banc. 112 Petitioners also emphasized that “rehearing en banc is not warranted where DOE has compounded a problem of its own making.”113 DOE unilaterally dismantled the nuclear waste disposal program mandated by the NWPA, but continued to collect fees for a program that it had arbitrarily cancelled.114

In a major development, the D.C. Circuit denied DOE’s request for both rehearing and rehearing en banc on March 18, 2014. As of this writing, the 90-day period of continuous session required to run before the fee can be set to zero is tentatively expected to end in late April or early May. The US House of Representatives received the transmittal on January 28, 2014, and the US Senate received it on January 14, 2014.

Conclusion

Aiken and NARUC illustrate the extraordinary remedies that utilities resorted to in obtaining compliance with the NWPA by the government. The D.C. Circuit decisions affirm the fundamental principle that the executive branch must carry out the laws that Congress has enacted, regardless of its taste for them. Although both of these decisions are positive developments for the nuclear industry, there is still a lot of work to be done in developing a permanent solution for disposing of the nation’s commercial nuclear waste. As the Obama administration calls for stronger environmental policies, reduced carbon emissions, and for nuclear energy to be part of that solution, it will be interesting to see if the president’s environmental agenda becomes a catalyst to providing a long-term solution for the vexing conundrum of what to do with nuclear waste.

Endnotes

1. In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013), pet. for reh’g en banc den. (Oct. 28, 2013).

2. Nat’l Assoc. of Regulatory Utility Commissioners v. U.S. Dep’t. of Energy, 736 F.3d 517 (D.C. Cir. 2013), pet. for reh’g and reh’g en banc den. (Mar. 18, 2014).

3. See H.R. Rep. No. 97-491, pt. 1, at 26–29 (1982) (outlining the need for a permanent federal geological disposal site for nuclear waste).

4. Nuclear Waste Policy Act of 1982 (NWPA), Pub. L. No. 97-425, 96 Stat. 2201 (1983) (codified as, amended at 42 U.S.C. §§ 10101–10270 (2006).

5. Todd Garvey, Closing Yucca Mountain Litigation Associated with Attempts to Abandon the Planned Nuclear Waste Repository . 1 US Cong. Research Serv. (June 4, 2012), available at http://tinyurl.com/lqb26dd [hereinafter Garvey, Closing Yucca].

6. 42 U.S.C. § 10222(a)(3).

7. Id. at (d)(1-6).

8. Id. at (a)(1).

9. 10 C.F.R. § 961.11.

10. Id.

11. The secretary’s three recommendations for candidate sites included Yucca Mountain, NV; Hanford, WA; and Deaf Smith County, TX.

12. 42 U.S.C. § 10172.

13. Id. at § 10133.

14. Id. at § 10132(b).

15. Final Notice of Inquiry: Waste Acceptance Issues, 60 Fed. Reg. 21,793 (May 3, 1995).

16. Id. at 21,793-94.

17. Id.

18. Todd Garvey, The Yucca Mountain Litigation: Liability Under the Nuclear Waste Policy Act of 1982, US Cong. Research Serv.5–7 (Mar. 9, 2010) at 5-7 [hereinafter Garvey, Yucca Litigation]; citing Indiana Michigan Power Co. v. U.S. Dep’t. of Energy, 88 F.3d 1272.

19. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842–43 (1984) (Two-step analysis: first, if Congress has spoken directly on the issue and Congress’s intent is clear that is the end of the analysis, and the agency, must give effect to the unambiguously expressed intent of Congress. Second, if court determines Congress has not spoken directly on the issue, the court does not simply impose its own construction on the statute, rather, if the statute is silent or ambiguous with respect to the specific issue, the court must determine if the agency’s interpretation is a permissible construction of the statute.)

20. Indiana Michigan Power Co. v. U.S. Dep’t. of Energy, 88 F.3d 1272, 1276 (D.C. Cir. 1996).

21. Id. at 1277.

22. Garvey, Yucca Litigation, supra note 18, at 6.

23. Northern States Power Co. v. United States, 128 F.3d 754, 758–61 (D.C. Cir. 1997).

24. 128 F.3d at 757.

25. 10 C.F.R. 961.11, Art. IX(a): Unavoidable Delays by the Purchaser: “Neither the Government nor the Purchaser shall be liable under this contract for damages caused by failure to perform its obligations hereunder, if such failure arises out of causes beyond the control and without the fault or negligence of the party failing to perform. In the event circumstances beyond the reasonable control of the Purchaser or DOE—such as acts of God, or of the public enemy, acts of Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather—cause delay in scheduled delivery, acceptance or transport of SNF and/or HLW, the party experiencing the delay will notify the other party as soon as possible after such delay is ascertained and the parties will readjust their schedules, as appropriate, to accommodate such delay.”

26. 10 C.F.R. § 961.11.

27. 128 F.3d at 760.

28. 128 F.3d at 761.

29. Garvey, Yucca Litigation, supra note 18, at 8.

30. Yankee Atomic Electricity Co v. U.S., 42 Fed Cl. 233 (1998) (holding available administrative relief was not adequate); Northern States Power Co. v. U.S., 224 F.3d 1361 (Fed. Cl. 2000) (holding available administrative relief was adequate).

31. Garvey, Yucca Litigation, supra note 18, at 8.

32. 225 F.3d 1336 (Fed. Cir. 2000).

33. 10 C.F.R. § 961.11, Art. IX (b): Avoidable Delays by Purchaser or DOE: “In the event of any delay in the delivery, acceptance or transport of SNF and/or HLW to or by DOE caused by circumstances within the reasonable control of either the Purchaser or DOE or their respective contractors or suppliers, the charges and schedules specified by this contract will be equitably adjusted to reflect any estimated additional costs incurred by the party not responsible for or contributing to the delay.”

34. 225 F.3d at 1339.

35. Garvey, Yucca Litigation, supra note 18, at 9, citing Maine Yankee Atomic Power v. U.S., 225 F.3d 1336, 1341–42 (Fed. Cir. 2000) (internal quotations omitted).

36. 224 F.3d 1336 at 1341–42.

37. Id. at 1343.

38. Garvey, Yucca Litigation, supra note 18, at 9.

39. Alabama Power Co. v. U.S. Dep’t. of Energy, 307 F.3d 1300, 1312 (11th Cir. 2002).

40. Id. at 1300.

41. Id. at 1313.

42. Id. at 1314.

43. Alex Funk and Benjamin K. Sovacool, Waste Opportunities: Resolving the Impasse in the United States Nuclear Waste Policy, 34 Energy L.J. 113, 123 (2013).

44. Id. (internal citation omitted).

45. Garvey, Closing Yucca, supra note 5, at 2.

46. Id. (citing P.L. 107-200, 107th Cong. (2002)).

47. Id.

48. Funk & Sovacool, supra note 43, at 124–25.

49. Garvey, Closing Yucca, supra note 5, at 2.

50. Funk & Sovacool, supra note 43, at 125, citing Obama for America, Barack Obama and Joe Biden: New Energy for America (2008), available at http://tinyurl.com/qj2brgn.

51. NARUC v. U.S. Dep’t of Energy, 680 F.3d 819, 821 (D.C. Cir. 2012).

52. Motion to Withdraw at 1, In re U.S. Dep’t of Energy (High Level Waste Repository), No. 63-001, ASLBP No. 09-892-HLW-CAB04 (N.R.C. Mar. 3, 2010), available at http://tinyurl.com/oyunvpm.

53. Id. at 2.

54. Funk & Sovacool, supra note 43, at 126.

55. In the Matter of U.S. Dep’t of Energy (High-Level Waste Repository), 71 N.R.C. 609, 629 (2010).

56. Id. at 618.

57. Id.

58. In re Aiken County, 645 F.3d 428 (D.C. Cir. 2011).

59. Id. at 437.

60. In the Matter of U.S. Dep’t of Energy (High-Level Waste Repository), 74 N.R.C. 368 (2011).

61. Id.at 370.

62. Office of the Inspector Gen., OIG Case No. 11-05, NRC Chairman’s Unilateral Decision to Terminate NRC’s Review of DOE Yucca Mountain Repository License Application 44-46 (2011).

63. Id. at 1.

64. In re Aiken County, No. 11-1271, 2012 WL 3140360, at *1 (D.C. Cir. Aug. 3, 2012) (Kavanaugh, J., concurring).

65. Id.

66. Id.

67. Id.

68. In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013), reh’g en banc denied (Oct. 28, 2013).

69. Id. at 259.

70. Id.

71. 725 F.3d 255, 259.

72. Id. at 259–60.

73. Id.

74. In the Matter of U.S. Dep’t of Energy (High-Level Waste Repository), No. 63-001, 2013 WL 7046350, at *1, CLI-13-8, (2013).

75. Id. at *9.

76. Id. at *10–11, *13.

77. NARUC v. DOE, 680 F.3d at 819 (D.C. Cir. 2012).

78. Id. (internal quotation omitted).

79. Id.

80. Statement for the Record of Henry B. Barron, president & CEO, Constellation Energy Nuclear Group, before the Senate Energy and Natural Resources Committee, Sept. 12, 2012, available at http://tinyurl.com/q8ul2bq.

81. 680 F.3d at 823.

82. Id. at 824.

83. Id.

84. Id. at 824.

85. Id.

86. Id.

87. Id. at 826.

88. Id.

89. Secretarial Determination of the Adequacy of the Nuclear Waste Fund Fee and DOE Nuclear Waste Fund Fee Adequacy Assessment Report (Jan. 16, 2013).

90. NARUC v. U.S. Dep’t of Energy, No. 11-1066, Order (D.C. Cir. February 26, 2013) (order granting petitioner’s motion to reopen).

91. NARUC v. U.S. Dep’t of Energy, 736 F.3d 517 (D.C. Cir. 2013).

92. Id. at 520.

93. Id.

94. Id. at 519.

95. Id.

96. Id.

97. Id.; the secretary of energy’s position was illustrated in the Strategy Report, supra note 85.

98. 42 U.S.C. § 10172.

99. Strategy Report, supra note 85, at 7.

100. 42 U.S.C. § 10166 and § 10135.

101. Strategy Report, supra note 85, at 9.

102. 42 U.S.C. § 10222(a)(5)(B).

103. Strategy Report, supra note 85, at 7.

104. 736 F.3d 517.

105. Id.

106. See Respondent’s Motion for an Enlargement of Time within which to Request Rehearing, NARUC v. DOE, No. 11-1066 (D.C. Cir. December 3, 2013).

107. See Petitioner’s Opposition to Respondent’s Motion for an Enlargement of Time within which to Request Rehearing, NARUC v. DOE, No. 11-1066, (D.C. Cir. December 6, 2013).

108. See Petitioner’s Motion to Expedite Issuance of the Mandate, NARUC v. DOE, No. 11-1066 (D.C. Cir. December 4, 2013).

109. NARUC v. U.S. Dep’t of Energy, No. 11-1066, Order (D.C. Cir. Dec. 20, 2013) (order denying respondent’s petition for enlargement of time and granting petitioner’s motion for expedited issuance of the mandate).

110. Respondent’s Petition for Rehearing and Rehearing En Banc at 2–3, NARUC v. DOE, No. 11-1066, (D.C. Cir. Jan. 3, 2014).

111. Secretary of Energy Letter to Senate President Joseph Biden, Jan. 3, 2014. p.1

112. Petitioner’s Opposition to Respondent’s Petition for Rehearing and Rehearing En Banc at 14, NARUC v. DOE, No. 11-066, (D.C. Cir. February 10, 2014).

113. Id. at 15.

114. Id. at 2.

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