Las Vegas Sun

November 14, 2018

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State files legal challenge against nuclear regulatory commissioner

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Isaac Brekken / AP

In this April 13, 2006, file photo, an underground train at the entrance of Yucca Mountain in Nevada.

Nevada wants a court to force a member of the federal Nuclear Regulatory Commission to recuse himself from decisions involving a long-stalled spent fuel repository at Yucca Mountain.

The state filed its appeal in late August after NRC Commissioner David Wright, who was sworn in roughly two months ago, denied a request that he recuse himself. Nevada is arguing that Wright is biased and that allowing him to participate in Yucca-related decisions would violate Nevada’s due process rights.

Preliminary filings in the case are due Oct. 1 and the deadline for motions is Oct. 15, said Bob Halstead, executive director of the governor’s Agency for Nuclear Projects.

“That’s really relatively fast track for these kinds of things,” he said. “ … This is good for us. We want to get on with it.”

Halstead said the state decided to file the legal challenge now rather than after Wright votes on decisive Yucca-related issues, such as whether to hold possible hearings in Nevada or in Maryland, where the NRC is located. He said the move puts Nevada’s position on record early on, even if the court decides that the state needs to wait to pursue the challenge, he said.

“The message that we’re sending is that we intend to take powerful legal action against the Nuclear Regulatory Commission on any decision that involves Commissioner Wight,” Halstead said. “This is a way of laying down a marker.”

Nevada is pointing to several past actions and statements by Wright as evidence that he’s biased in favor of the project, such as his role in establishing a group that the state says lobbies for the repository.

Wright said in a July 2 response to the state’s request that he has not “prejudged the technical, legal or policy issues in the licensing proceeding.”

“(M)y limited participation was not related to the merits of the proceeding, and my public statements were intended as general support for a long-term nuclear waste storage solution,” Wright said.

Nevada has put millions of dollars toward fighting the proposal through licensing, litigation and legislation. With the exception of some rural counties, the state’s official position has been against the repository.

“As governor of Nevada, I strongly support this filing,” said Gov. Brian Sandoval in an Aug. 29 statement. “From my days as a state legislator and then-attorney general, the licensing proceeding has been one of the most critical battlefields in the fight against Yucca Mountain. The state of Nevada will continue to fight and defeat the dangerous Yucca Mountain project at every opportunity and in any venue. Any revival of Yucca Mountain would come at the direct expense of the health and safety of Nevadans, and Nevada will not stand for it.”

The lawsuit, prepared by Attorney General Adam Laxalt’s office as well as counsel from the Egan, Fitzpatrick, Malsch and Lawrence firm, is one of several that Nevada has lined up to push back against efforts to build the repository, which stalled under former President Barack Obama and picked up steam with President Donald Trump’s first budget blueprint in 2017.

Congress has yet to appropriate new funding for Yucca. The Senate is expected to consider House-approved reforms to nuclear regulatory policy come January.

“Today’s filing continues our fight to protect Nevadans from the poster-child for federal overreach — the ill-conceived and discredited high-level nuclear waste repository at Yucca Mountain,” Laxalt said in an Aug. 29 statement. “Our team will bring every available weapon to this fight.”