The topic of the broken federal program for acceptance and disposal of spent nuclear fuel has been in the news. The Nuclear Waste Policy Act of 1982 (NWPA) assigned the responsibility for development of a high level waste repository to the federal Department of Energy (DOE), and established the Nuclear Waste Fund to pay for the program based on charges for electricity generated by nuclear power plants. DOE has collected the fee continuously, but has defaulted on its obligation to accept the waste since 1998.

DOE last year filed a motion to withdraw it license application filed at the Nuclear Regulatory Commission (NRC) for the Yucca Mountain site. The NRC's Atomic Safety and Licensing Board held, however, that termination of the proceeding would be contrary to the NWPA.  That decision has been on appeal to the Commission for over one year, as the Chairman apparently refuses to move forward in the process. Petitioners from South Carolina and Washington State, along with the National Association of Regulatory Utility Commissioners, have now filed a petition for writ of mandamus (agency action unreasonably withheld) against the NRC in the U.S. Court of Appeals for the D.C. Circuit. The court last month dismissed a previous challenge on the grounds that the matter was not yet ripe. The petitioners now argue that the NWPA set a deadline of 3 years for NRC action on a DOE license application, and the deadline has now passed with no agency action.

Regardless of the outcome in court, it will be interesting to watch whether the legal action prompts any administration movement by the Chairman and the NRC. Meanwhile, the NRC has terminated its Yucca Mountain technical reviews, dismantled its costly Licensing Support Network used to support the licensing hearings, and is reportedly terminating the lease on its Nevada hearing facility. It will be exceedingly difficult, it would appear, to put this program back on track even with a judicial decision adverse to the NRC.