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Nuclear Energy Institute
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NEI Disappointed by Court Ruling on Petition Tied to Yucca Mountain Project

WASHINGTON, D.C.—The U.S. Court of Appeals for the D.C. Circuit ruled today in Aiken County et al v. Nuclear Regulatory Commission that the case be held in abeyance for up to four months pending congressional action on fiscal year 2013 appropriations related to the federal government’s nuclear waste management program. Aiken County petitioned the court in 2011 for a writ of mandamus ordering the NRC to complete its review of the Yucca Mountain repository license application and issue a final decision approving or disapproving the application. The lawsuit was filed in response to the Department of Energy’s attempt to abandon the license application pending before the NRC on the proposed repository for used nuclear fuel from commercial nuclear power plants and high-level radioactive waste from U.S. defense programs. Following is a statement regarding the court’s ruling by Ellen Ginsberg, the Nuclear Energy Institute’s vice president and general counsel.

“The nuclear energy industry is disappointed that the Court of Appeals did not take the opportunity to directly address the unambiguous statutory obligation imposed on the Nuclear Regulatory Commission by the Nuclear Waste Policy Act. However, it is noteworthy that both the concurrence by Judge Kavanaugh and the dissent by Judge Randolph agree that the Nuclear Regulatory Commission has a clear statutory obligation under the Nuclear Waste Policy Act. Although he supported holding the case in abeyance, Judge Kavanaugh rejected the NRC’s bases for its action and opined the NRC ‘appears to have no legal authority to defy the law.’

“In his dissent, Judge Randolph describes the issue perfectly, consistent with the industry’s view, in stating that the court’s responsibility in deciding whether to order compliance with the law ‘has never depended on the possibility that a later Congress might do something to excuse the violation.’

“Like Judge Randolph, we believe the court should have acted under the current circumstances. As the judge stated, ‘There is no reason to delay issuing a writ of mandamus to correct this transparent violation of the law.’”