ML18288A542

Respondents' Motion to Dismiss

ML18288A542
Person / Time
Site:	06300001
Issue date:	10/15/2018
From:	Andrew Averbach, Julie Ezell, Mullins C NRC/OGC, State of NV, Office of the Attorney General
To:	US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
References
18-1232 1755212
Download: ML18288A542 (136)

Text

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 24 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF NEVADA, )

Petitioner, )

)

v. ) No. 18-1232

)

UNITED STATES NUCLEAR REGULATORY )

COMMISSION and DAVID A. WRIGHT, )

)

Respondents. )

RESPONDENTS MOTION TO DISMISS This case presents a challenge to a Nuclear Regulatory Commission (NRC)

Commissioners decision not to recuse himself from the licensing proceeding for a proposed nuclear waste repository at Yucca Mountain, Nevada.

This Court ploughed the same ground in 2014 in Nye County v. NRC. As in Nye County, the petitioner (here, the State of Nevada) asks this Court to overturn a Commissioners recusal decision on the basis of the Commissioners prior statements related to the proposed repository. As in Nye County, Nevadas arguments are before the Court on a petition for review under the Nuclear Waste Policy Act (NWPA). As in Nye County, the licensing proceeding is not complete.

And as in Nye County, the petition for review warrants dismissal because [t]he challenged order is neither final nor ripe for review. Nye County v. NRC, No.

13-1260 (D.C. Cir. Feb. 21, 2014) (Document #1480968) (per curiam) (citation omitted).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 2 of 24 BACKGROUND I. The license application and legal challenges before the NRC The NWPA directs the NRC to consider an application submitted by the Department of Energy (DOE) for authorization to construct a repository for the disposal of high-level waste and spent nuclear fuel. 42 U.S.C. § 10134(d). On June 3, 2008, DOE submitted an application for such a facility at Yucca Mountain, Nevada. See 73 Fed. Reg. 34,348 (June 17, 2008), corrected, 73 Fed. Reg. 40,883 (July 16, 2008).

In October 2008, the NRC issued a notice of hearing, allowing persons with an interest to seek intervention in the proceeding. 73 Fed. Reg. 63,029 (Oct. 22, 2008). In May 2009, the NRCs Atomic Safety and Licensing Board Panel admitted eight parties, including Nevada, to the proceeding and admitted for adjudicatory hearing approximately 300 contentions (i.e., legal or factual claims challenging issuance of the construction authorization). U.S. Department of Energy (High-Level Waste Repository), LBP-09-06, 69 N.R.C. 367 (2009).

Additional parties and contentions were subsequently admitted. See, e.g., U.S.

Department of Energy (High-Level Waste Repository), LBP-09-29, 70 N.R.C.

1028 (2009).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 3 of 24 B. The DOE motion to withdraw On March 3, 2010, DOE filed a motion to withdraw its application with prejudice. Five groups sought intervention in the proceeding to oppose DOEs motion, including the National Association of Regulated Utility Commissioners (NARUC), based on their contention that DOE lack[ed] the authority under the NWPA to withdraw the [a]pplication. 1 On June 29, 2010, the Board issued an order granting these groups petition to intervene and denying DOEs motion to withdraw. U.S. Department of Energy (High-Level Waste Repository),

LBP-10-11, 71 N.R.C. 609, 647-49 (2010).

On September 9, 2011, the Commission issued a decision announcing that it found itself evenly divided on whether to take the affirmative action of overturning or upholding the Boards decision. U.S. Department of Energy (High-Level Waste Repository), CLI-11-07, 74 N.R.C. 212 (2011). The Commission also directed the Board to complete all necessary and appropriate case management activities, including disposal of the matters before it. Id. at 212.

The Board subsequently issued a decision suspending the proceeding in 1

To demonstrate that it had representational standing to raise this contention before the NRC, NARUC submitted an affidavit signed by Respondent David A.

Wright, who at the time was serving as one of NARUCs Member-Commissioners.

See Recusal Request (Exh. 1 to this motion), Exh. 1.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 4 of 24 accordance with the Commissions direction. U.S. Department of Energy (High-Level Waste Repository), LBP-11-24, 74 N.R.C. 368 (2011).

C. Litigation and subsequent NRC actions On July 29, 2011, the parties that had opposed DOEs motion to withdraw its application before the agency filed a petition for mandamus in this Court seeking relief against the NRC.2 The petitioners alleged that NRC had improperly withheld agency action required by the NWPA by refusing to continue the proceeding while it still had appropriated funds available. NRC responded that it did not have sufficient funds to make significant progress toward completion. In August 2013, the Court issued a writ of mandamus directing NRC to resume the licensing process unless and until Congress [directs] otherwise or there are no appropriated funds remaining. In re Aiken Cty., 725 F.3d 255, 267 (D.C. Cir.

2013) (Aiken II).

Consistent with the Courts direction, the NRC Staff has completed its safety analysis concerning the proposed repository and has completed a supplemental environmental impact statement, and the agency continues to make use of the 2

This petition was the second one brought before this Court related to the issue.

The first case, filed in 2010, challenged DOEs attempt to withdraw its construction authorization application and DOEs apparent decision to abandon development of the repository. This Court dismissed the petition as unripe and not justiciable. In re Aiken Cty., 645 F.3d 428, 431 (D.C. Cir. 2011) (Aiken I).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 5 of 24 limited funds remaining to it. The adjudicatory proceeding remains suspended pending future appropriation determinations.

D. Appointment of Commissioner Wright and Nevadas recusal request Respondent David A. Wright was sworn in as a Commissioner of the NRC on May 30, 2018. He is currently serving the remainder of a five-year term ending June 30, 2020.

On June 7, 2018, Nevada filed a request seeking Commissioner Wrights recusal from the Yucca Mountain licensing process. See Exhibit 1. Nevada asserted, generally, that Commissioner Wrights prior statements constitute evidence of bias and prevent him from serving as an objective decisionmaker with respect to the application. On July 2, 2018, Commissioner Wright denied the request, explaining that he had not pre-judged, and that he could impartially consider, the application. See Exhibit 2. On August 29, 2018, Nevada filed a petition for review challenging this decision.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 6 of 24 ARGUMENT I. Nevadas petition for review is properly considered solely under 42 U.S.C. § 10139(a)(1)(A) and does not satisfy that provisions limited waiver of sovereign immunity.

A. Nevadas election not to proceed via mandamus precludes review under 42 U.S.C. § 10139(a)(1)(C).

Section 119(a)(1) of the NWPA grants the courts of appeals original and exclusive jurisdiction over any civil action (A) for review of any final decision or action of the Secretary, the President, or the Commission under this subtitle3; [or]

(C) challenging the constitutionality of any decision made, or action taken, under any provision of this subtitle[.]

42 U.S.C. § 10139(a)(1) (emphasis added). Nevada apparently predicates its claim of jurisdiction on both of these provisions.

The distinction between subsections (a)(1)(A) and (a)(1)(C) is consequential (although all roads eventually lead to the conclusion that dismissal is warranted).

Unlike petitions for review arising under subsection (a)(1)(A), challeng[es]

3 As enacted, the NWPA uses the word subtitle. The U.S. Code Annotated uses the word part. We have used the original statutory language. The term this subtitle refers to subtitle A (Repositories for Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel) of Title I (Disposal and Storage of High-Level Radioactive Waste, Spent Nuclear Fuel, and Low-Level Radioactive Waste).

Subtitle A comprises sections 111 through 125 of the NWPA, 42 U.S.C. §§ 10131-10145.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 7 of 24 based on the asserted unconstitutionality of NRC actions or decisions under subsection (a)(1)(C) are not expressly required by statute to be final.4 Indeed, an action arising under subsection (C) is not, under the terms of the statute, a petition for review at all (unlike civil actions raised under subsections (A), (D), (E), and (F)). Rather, a constitutional challenge to a Commissioners recusal decision brought under subsection (C) is properly raised as a petition for a writ of mandamus, which a federal court would have jurisdiction to consider (subject to Article III and nonstatutory justiciability requirements) as a freestanding constitutional claim. See. e.g., Amos Treat & Co. v. SEC, 306 F.2d 260, 267 &

n.11 (D.C. Cir. 1962) (recognizing original federal question jurisdiction in district court, not by way of review of the Commissions orders, over due process claim challenging objectivity of agency commissioner concerning ongoing proceeding);

Assn of Natl Advert. v. FTC, 627 F.2d 1151, 1156-57 & n.9 (D.C. Cir. 1979)

(holding that district court had federal question jurisdiction to entertain due process claim based on alleged bias of agency Commissioner in connection with pending 4

The same is true of civil actions arising under subsection (a)(1)(B), which provides for original jurisdiction in the courts of appeals for actions alleging a failure to make any decision, or take any action, required under subtitle A.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 8 of 24 rulemaking, and noting the liberal trend toward use of mandamus to consider disqualification claims).5 This Court recognized the distinction between its mandamus authority and its jurisdiction to entertain petitions for review in the Nye County proceedings. In that case, petitioners filed both a claim for mandamus relief as well as an expedited petition for review challenging the decision of the NRCs former Chairman not to recuse herself from the Yucca Mountain licensing proceeding. The Court entertained the case first on mandamus and denied the petition on the ground that petitioners had not shown a clear and indisputable right to relief. Nye County v.

NRC, No. 13-1260 (D.C. Cir. Oct. 22, 2013) (Document #1462418) (per curiam).

The same day, the Court ordered that the case proceed under the petitioners alternate theory as a petition for review (i.e., under 42 U.S.C. § 10139(a)(1)(A)).

Id. (D.C. Cir. Oct. 22, 2013) (Document #1462434), and the NRC moved to dismiss the petition on finality and ripeness grounds. The petitioners opposed the NRCs motion, asserting, inter alia, that [a] petition for review of a Commissioners action in violating constitutional rights during the licensing process does not require finality. Id., Response to Motion to Dismiss (D.C. Cir.

5 Given the existence of federal question jurisdiction over such matters, subsection (a)(1)(C) makes clear that constitutional challenges arising under the NWPA are properly raised in the courts of appeals, rather than in district court.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 9 of 24 Dec. 13, 2013) (Document #1470354), at 7-9 (capitalization in original altered).

But this Court rejected the petitioners arguments and held that the petition was neither final nor ripe for review. Id. (D.C. Cir. Feb. 21. 2014) (Document

1. 1480968) (per curiam).

By its own election in this case, Nevada has not invoked the Courts mandamus authority. Rather, it has chosen to file a petition for review that challenges Commissioner Wrights decision not to recuse himself as arbitrary and capricious, an abuse of discretion, and contrary to law (including being contrary to Constitutional right). Given that Nevada does not seek (and has not alleged a basis for) mandamus relief and seeks only review of the Commissioners decision, its petition is cognizable solely under 42 U.S.C. § 10139(a)(1)(A). As such (and as the Court determined in Nye County), it must comply with the statutory requirements, including finality, for claims brought under that provision.

And as we demonstrate below (and as the Court determined in Nye County), it cannot do so.

B. Nevadas petition does not seek review of a decision that is either final or of the Commission.

Waivers of the Federal Governments sovereign immunity must be narrowly construed. E.g., Brown v. Secretary of the Army, 78 F.3d 645, 649 (D.C. Cir.

1996). In this case, no waiver exists because Commissioner Wrights decision not 9

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 10 of 24 to recuse himself is neither final nor a decision of the Commission, as expressly required by 42 U.S.C. § 10139(a)(1)(A).

1. Commissioner Wrights decision is not final.

1. This Court has routinely rejected requests for interlocutory review of recusal decisions in administrative proceedings; instead, the Court has consistently required those challenging a decision not to recuse to obtain a final agency action in the agency proceeding before seeking judicial review. As the district court of this Circuit explained in denying a challenge to an NRC Commissioners decision not to recuse himself from a pending adjudication, This Circuit has repeatedly and specifically stated that, in all but rare cases, a motion challenging the action of an agency official is not cognizable prior to a final administrative decision or otherwise than pursuant to specific, applicable statutory procedures.

San Luis Obispo Mothers for Peace v. Hendrie, 502 F. Supp. 408, 410-11 (D.D.C.

1981) (denial of request to disqualify NRC Commissioner properly reviewed as part of review of final agency action); see also SEC v. R.A. Holman & Co, 323 F.2d 284, 288 (D.C. Cir. 1963) (The bare contention of lack of due process does not operate to relieve the appellee from the requirement that he exhaust administrative remedies.).

In fact, nearly every decision from this Court reviewing requests to disqualify agency officials has been made during review of a final agency action.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 11 of 24 Nuclear Info. & Res. Ser. v. NRC, 509 F.3d 562 (D.C. Cir. 2007) (NRC Commissioner); Waterbury Hotel Mgmt. LLC v. NLRB, 314 F.3d 645 (D.C. Cir.

2003) (NLRB ALJ); Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) (FLRA Board member); Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154 (D.C. Cir.

1995) (FCC Chairman); Com. Broad. of Boston, Inc. v. FCC, 546 F.2d 1022, 1026-28 (D.C. Cir. 1976) (intervenor counsel). And the seminal disqualification case in this Circuit, Cinderella Career & Finishing Schools v. FTC, 425 F.2d 583, 589-91 (D.C. Cir. 1970), involves review of a final agency action.

2. The requirement of a final decision before seeking review of the recusal decision in this case is consistent with the general finality requirement in agency cases.

As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agencys decisionmaking processit must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 157 (1997); see, e.g., Blue Ridge Envtl. Def.

League v. NRC, 668 F.3d 747, 753-55 (D.C. Cir. 2012).

Here, Commissioner Wrights decision clearly does not mark the consummation of the agencys decisionmaking process. Moreover, the decision does not impose an obligation on any of the parties before it or determine any 11 (Page 11 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 12 of 24 claims at issue in the proceeding. Nor does the decision require the parties to take any affirmative steps or impose any liability. Thus, no rights or obligations have been determined, and no legal consequences will flow from this interlocutory and procedural decision. Rather, the final decision in this proceeding will be the decision granting or denying DOEs application for a construction authorization, and Commissioner Wrights decision denying the motion seeking his recusal is but one determination issued along the path to a final decision. Section 119 of the Act should not be read to allow challenges to every such interlocutory decision issued during this process, and there is no reason to deviate from case law squarely holding that, for purposes of seeking appellate review of agency action, a denial of a motion to recuse is not a final decision.

3. Decisions of district court judges not to recuse themselves are not final decisions within the terms of the applicable jurisdictional statute, 28 U.S.C.

§ 1291. See, e.g., Rosen v. Sugarman, 357 F.2d 794, 796 (2d Cir. 1966); see also 13D Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure,

§ 3553, at 151 (3d ed. 2008) (Obviously, though, refusal of a judge to recuse is not a final order and therefore is not appealable as of right.); 15B id., § 3914.22, at 119 (2d ed. 1991) (The rule is well settled that denial of a motion to disqualify the trial judge is not final.). Notably, this jurisdictional statute contains language that is materially identical to Section 119(a)(1)(A). Compare 42 U.S.C.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 13 of 24

§ 10139(a)(1)(A) ([T]he United States courts of appeals shall have original and exclusive jurisdiction over any civil action for review of any final decision or action of the Commission[.]) (emphasis added) with 28 U.S.C. § 1291 (The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States[.]) (emphasis added). This rule applies with full force to petitions for review filed under the NWPA.

4. To be sure, this Court has held that in rare circumstances involving recusal it will entertain extraordinary prejudgment claims prior to final agency action. Assn of Natl Advert., 627 F.2d at 1156. But jurisdiction in such cases derives not from a statutory scheme for the review of final agency action, but, rather, pursuant to federal courts mandamus authority. See Amos Treat, 306 F.2d at 267 & n.11; Assn of Natl Advert., 627 F.2d at 1157; see also Cobell v. Norton, 334 F.3d 1128, 1139 (D.C. Cir. 2003) (mandamus is an available remedy for denial of recusal motion where the party seeking the writ demonstrates a clear and indisputable right to relief).

Moreover, even assuming arguendo that Nevada could argue in the context of a petition for review that this Court should consider non-final decisions, Nevada does not assert in its petition for review that this case is a rare or extraordinary situation, as required by Association of National Advertisers, or presents a patent violation of agency authority or a manifest infringement of substantial rights 13 (Page 13 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 14 of 24 irremediable by the statutorily-prescribed method of review, Nader v. Volpe, 466 F.2d 261, 266 (D.C. Cir. 1972). Nor could it. The risk faced in this case is no different than the risk faced in any case when an adjudicatory officer (whether a judge or an agency Commissioner) denies a recusal request and a reviewing court might ultimately determine that that decision was in error. While the topic at issue herethe licensing of a high-level nuclear waste repositorymay be considered high-profile, there is nothing rare or extraordinary about Nevadas claims.

There is no reason to short-circuit the normal process for reviewing challenges to recusal decisions.

5. Finally, the collateral order doctrine is not applicable to recusal cases.

See, e.g., Rosen, 357 F.2d at 796. The collateral order doctrine allows courts to review administrative decisions that do not end the proceeding if the challenged decision (1) conclusively determines a disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949); Sierra Club v. U.S. Dept. of Ag., 716 F.3d 653, 657-58 (D.C. Cir. 2013). But as we noted above, this Court routinely reviews denials of recusal claims when reviewing the final judicial decision or the final agency administrative action. Thus, Nevada has no basis to argue that 14 (Page 14 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 15 of 24 Commissioner Wrights decision is effectively unreviewable on appeal from the final judgment, i.e., a final decision on the construction authorization application.

2. Nevada does not challenge a decision of the Commission.

Section 119(a)(1)(A) of the NWPA limits its application to decisions of the Commission. The statute thus applies only to a decision by the Commission as a complete body, not a decision by an individual Commissioner, such as a response to a recusal request. 6 Nevada itself has recognized the distinction between a decision of the Commission and a decision by an individual Commissioner responding to a recusal request. Indeed, at the outset of its recusal request, Nevada acknowledged the long-standing Commission practice whereby recusal matters are addressed to and decided by the individual commissioner, not the Commission itself. Exh. 1 at 2 n.1 (emphasis added). Although a final decision of the Commission on the licensing of a repository would be reviewable under subsection (a)(1)(A) and would incorporate Commissioner Wrights interlocutory determination not to recuse himself, the decision that Nevada challenges is not a decision of the Commission pursuant to its Subtitle A authority and is therefore not reviewable under that provision.

6 Section 2 of the NWPA likewise defines Commission as the Nuclear Regulatory Commission, not an individual Commissioner. 42 U.S.C. § 10101(7);

see also 10 C.F.R. § 1.1(b) (defining the Commission as the five members or a quorum thereof).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 16 of 24 II. Nevada has not identified a basis for its constitutional claim that would support mandamus relief and that it raised below.

We understand Nevada also to challenge Commissioner Wrights decision under 42 U.S.C. § 10139(a)(1)(C), which grants to the courts of appeals jurisdiction to consider challenges to the constitutionality of any decision made . . . under any provision of this subtitle. As we noted earlier, such claims are not properly raised as petitions for review and must instead be raised pursuant to the Courts mandamus authority. But even had its claims been so framed, dismissal would still be warranted.

1. To obtain a writ of mandamus, Nevada must show that it has a clear and indisputable right to such relief. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Moreover, mandamus is available only if there is no other adequate remedy available to a petitioner. Natl Min. Assn v. Mine Safety

& Health Admin., 599 F.3d 662, 673 (D.C. Cir. 2010) (citations omitted).

Nevadas petition is devoid of any allegation that Commissioner Wright has committed a violation of the Constitution that would support a clear and indisputable right to extraordinary mandamus relief. Moreover, Nevada cannot credibly assert that a petition for review at the end of the adjudicatory proceeding would not be an adequate remedy for the injury that it might suffer if Commissioner Wright remains active in the proceeding. See Nye County v. NRC, 16 (Page 16 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 17 of 24 No. 13-1260 (D.C. Cir. Oct. 22, 2013) (per curiam) (Document #1462418)

(explaining, as one of two bases for denying the petitioners request, that mandamus relief is only available if there is no other adequate remedy available).

2. Even if Nevada had sought and alleged a basis for mandamus relief and an adequate remedy were not already available to it, Nevadas claim would still warrant dismissal because it did not identify in its request for recusal to Commissioner Wright any provision of the U.S. Constitution that it contends was violated. Although Nevada cited to due process of law as a general principle supporting recusal and referred to case law supporting the fundamental requirements of fairness, Exh. 1 at 3, 7, it premised its argument on its assertion that the standards to be employed by Commissioner Wright are the statutory standards governing disqualification of federal judges, as set forth at 28 U.S.C.

§ 455, Exh. 1 at 3. And while Nevada cited to a Supreme Court case suggesting that there might be an unconstitutional risk of actual bias in a criminal case in which the judge had made a decision relating to the prosecutions decision to seek the death penalty, it did so to support its assertion that the result in that case is in accord with [its] discussion of 28 U.S.C. § 455. Exh. 1 at 7.

It is axiomatic that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). Exhaustion, in 17 (Page 17 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 18 of 24 other words, is the default process. It is presumptively required, whether an underlying statute provides for exhaustion or not. See, e.g., Assn of Flight Attendants v. Chao, 493 F.3d 155, 158 (D.C. Cir. 2007); Boivin v. U.S. Airways, 446 F.3d 148, 153-54 (D.C. Cir. 2006). And NRC regulations require hearing participants not only to exhaust agency remedies before seeking judicial review, 10 C.F.R. § 2.341(b)(1), but also to demonstrate that the issues either were raised at the proceeding or that they could not have been raised, 10 C.F.R. § 2.341(b)(2).

Where, as here, an agencys regulations . . . require issue exhaustion in administrative appeals, the Supreme Court has noted that courts generally ensure against the bypassing of that requirement by refusing to consider unexhausted issues. Sims v. Apfel, 530 U.S. 103, 108 (2000).

The requirement to exhaust administrative remedies is a matter of simple fairness. Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011); see also United States. v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952) (stating the general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice). This requirement gives agencies and other interested parties an opportunity to address particular claims before they are presented in court and is sound judicial policy. Requiring review within the

[agency] gives the [agency] the opportunity to correct its own errors, and thereby 18 (Page 18 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 19 of 24 avoid unnecessary litigation. Benoit v. U.S. Dept. of Ag., 608 F.3d 17, 23 (D.C.

Cir. 2010) (citation and quotation marks omitted).

Here, Nevada, at best, has vaguely asserted that the Commissioners decision violates the U.S. Constitution. But Nevada cannot simply identify due process as a general principle, with no case law or analysis indicating that the conduct ascribed to Commissioner Wright rises to the level of a constitutional violation. Having failed to exhaust its remedies as to its constitutional claim, Nevada is barred from raising that issue here. 7 III. Regardless of whether it is presented as a petition for review or for a writ of mandamus, Nevadas claim is not ripe for review.

The ripeness requirement is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.

Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18 (1993). When a dispute is not ripe, it is not justiciable and should not be considered by a court. Toca Producers

v. FERC, 411 F.3d 262, 265-67 (D.C. Cir. 2005).

Ripeness has particular significance in the context of challenges to federal agency decisions. The Supreme Court has explained that the ripeness doctrine protects both courts and agencies:

7 And to the extent that Nevada is deemed to have raised its constitutional arguments below, its arguments before this Court must necessarily be confined to the same general principles it raised before Commissioner Wright.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 20 of 24 Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) (footnote omitted).

As this Court has stated, [w]hen [it] appl[ies] the ripeness doctrine to review of agency actions, [it] balance[s] the interests of the court and the agency in delaying review against the petitioners interest in prompt consideration of allegedly unlawful agency action. In re Aiken County, 645 F.3d 428, 434 (D.C.

Cir. 2011) (Aiken I) (quoting Toca Producers, 411 F.3d at 265). [W]hen an agency decision may never have its effects felt in a concrete way by the challenging parties, the prospect of [the Court] entangling [itself] in a challenge to such a decision is an element of the fitness determination as well. Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir. 2007) (citation and quotation marks omitted).

Hence, a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. Id. at 425 (quotation marks omitted).

The Court applied these principles in Aiken I. There, the Court deemed unripe a challenge brought under the NWPA to DOEs attempt to withdraw its application to construct the Yucca Mountain repository. The Court noted that the 20 (Page 20 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 21 of 24 entire controversy could be mooted if the Commission were to decline to review or affirm a prior decision of the NRCs Licensing Board denying the motion to withdraw. 645 F.3d at 435. Moreover, the Court emphasized that the Board had not completed its review of the license application and that the possibility remained that the repository might not be licensed (and that such a determination could eventually be challenged in court). Id. And the Court ultimately determined that any delays associated with having to await a final outcome of the licensing process would not substantially prejudice the petitioners rights. Id.

So too here. Even assuming that jurisdiction exists, there are compelling reasons not to take review of this case now. Nevada has challenged the license application and may ultimately prevail in the proceeding, eliminating the need for subsequent review. Indeed, that is one reason thatabsent some rare or extraordinary event demonstrating that parties clearly cannot receive a fair hearingcourts do not review recusal decisions before a final decision has been issued. Moreover, it is the principal reason underlying the Congressional mandate that appellate review of agency action be limited to final orders. As this Court determined when confronted with the identical scenario in Nye County, Nevadas challenge here is not ripe for review in light of the pendency of the construction authorization application. Nye County v. NRC, No. 13-1260 (D.C. Cir. Feb. 21, 2014) (per curiam) (Document #1462418). Thus, regardless of whether Nevadas 21 (Page 21 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 22 of 24 petition arises under 42 U.S.C. § 10139(a)(1)(A) or (a)(1)(C), dismissal is warranted for this reason alone.

CONCLUSION For the foregoing reasons, this Court should dismiss the petition for review.

Respectfully submitted,

/s/ Andrew P. Averbach _

ANDREW P. AVERBACH Solicitor (301) 415-1956 andrew.averbach@nrc.gov

/s/ Charles E. Mullins__

CHARLES E. MULLINS Senior Attorney

/s/ Julie G. Ezell____

JULIE G. EZELL Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 October 15, 2018 22 (Page 22 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 23 of 24 CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(g)(1) of the Federal Rules of Appellate Procedure and Circuit Rule 32(e)(2)(C), I hereby certify:

This document complies with the type-volume limit of Fed. R. App. P.

32(a)(7)(B) and Circuit Rule 32(e) because, excluding the caption, signature block, and certificates, it contains 4,783 words, as calculated by Microsoft Word 2013.

This document complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) because it was prepared 14-point Times New Roman font.

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (Page 23 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 24 of 24 CERTIFICATE OF SERVICE I certify under penalty of perjury that on October 15, 2018, I filed Respondents Motion to Dismiss with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Courts CM/ECF system. That method is calculated to serve:

Martin G. Malsch Egan, Fitzpatrick, Malsch & Lawrence, PLLC 1776 K Street, N.W., Suite 200 Washington, DC 20006

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (Page 24 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 1 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici The Parties are the State of Nevada, the United States Nuclear Regulatory Commission, and, in his official capacity, Commissioner David A. Wright.

B. Ruling Under Review The ruling under review is the Decision on the Motion of the State of Nevada for Recusal of Commissioner David A. Wight, dated July 2, 2018. It is attached as Exhibit 2 to this motion.

C. Related Cases There are no related cases.

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (Page 25 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 89 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Commissioner David A. Wright In the Matter of )

)

U.S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW

)

(High Level Waste Repository) )

NEVADA REQUEST THAT COMMISSIONER WRIGHT BE RECUSED I. Introduction The State of Nevada respectfully requests that you recuse (disqualify) yourself from participating in any Commission decision pertaining to the Yucca Mountain repository licensing process, including the formal adjudicatory licensing proceeding (should it be restarted). As explained below, your participation in the Yucca Mountain licensing process would violate Nevadas due process right to a neutral and unbiased decision-maker, violate established judicial, statutory, and administrative standards requiring your recusal, and constitute an extraordinary and unwarranted departure from the past practice of NRC Commissioners. In fact, given your past actions and expressions of opinion about the merits of the proposed Yucca Mountain repository, your participation would flout established norms that have been followed throughout the Commissions 43-year history.

Nevada has participated as a party-intervenor in the Yucca Mountain licensing process for over eight years and has never sought the recusal of any Commissioner or administrative judge. It does not take such an action lightly, without careful consideration. However, it must do so now in the extraordinary circumstances that apply, which include your role as an advisor to a party in the Yucca Mountain adjudicatory proceeding, your frequent and long-standing (Page 26 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 2 of 89 2

expressions of opinion that a repository at Yucca Mountain is necessary and will be safe, your criticism of Nevada for daring to oppose the Yucca Mountain repository, and your formation of, and active participation in, at least one organization whose sole focus was the advancement and completion of the Yucca Mountain repository. These circumstances are described in detail below and are supported by the attached affidavit.

II. Timing Nevada is aware that the adjudicatory proceeding is currently suspended and that it might be argued that the instant request should await the restart of that proceeding, if that ever occurs.

However, long-standing Commission precedent holds that recusal requests must be filed promptly after the grounds for recusal become known. See e.g., Commonwealth Edison Co.

(Zion Station Units 1 and 2), ALAB-226, 8 AEC 381 (1974). Moreover Nevada might be prejudiced by your participation in Commission decisions before or simultaneous with a restart decision, including a restart decision itself. Finally, Chairman Macfarlane considered and decided a motion for her recusal while the adjudicatory proceeding was suspended. See recusal decision dated September 9, 2013 (ML13252A418). Therefore, Nevada believes that filing the instant request now is consistent with Commission practice, prudent and timely. 1 III. Basis for Recusal A. General Principles Due process of law requires a neutral and unbiased decision-maker. Indeed, courts consistently characterize provision of a neutral and unbiased decision-maker as one of the core 1

A hypothetical (but, in Nevadas opinion, unnecessary) motion to the Commission to lift the suspension for the limited purpose of enabling Nevada to file the instant recusal request would be contrary to long-standing Commission practice whereby recusal matters are addressed to and decided by the individual commissioner, not the Commission itself. A Commission decision whether to lift the suspension could determine whether the recusal request should be denied on procedural grounds.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 3 of 89 3

requirements of a system of fair adjudicatory decision-making. See e.g., Arnett v. Kennedy, 416 U.S. 134, 171 (1974) (White, J., concurring and dissenting); the principle dates back at least as far as seventeenth century England (Dr. Bonhams Case, 77 Eng. Rep. 646, 652 (1610)) and was incorporated into the judicial philosophy of the Founding Fathers (see e.g., The Federalist No. 10 (James Madison) - No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.

The applicable standards for recusal 2 of NRC Commissioners are set forth in long-standing Commission case law. The essential point of this case law is that the standards governing recusal of members of the Commission (and administrative judges) are the same as those that apply to federal judges. Houston Lighting & Power Company (South Texas Project, Units 1 and 2), CLI_82-9, 15 NRC 1363, 1365-67) 1982); Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 21 (1984). These standards are set forth in 28 U.S.C. § 455, authoritative Commission interpretation of 28 U.S.C.

§ 455, and judicial and NRC adjudicatory decisions. These are explained and applied below.

B. Your Participation on Behalf of a Party in the Yucca Mountain Adjudicatory Proceeding (1) 28 U.S.C. §455 Section 455 of Title 28 of the United States Code includes a provision (28 U.S.C. § 455 (b) (3)) that requires recusal of a Federal judge whenever he has served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy. As explained below, you have done precisely this when you not only served as a 2

The terms recusal and disqualification mean the same thing.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 4 of 89 4

governmental advisor to the National Association of Regulatory Utility Commissioners (NARUC) concerning its participation as a party in the Yucca Mountain adjudicatory proceeding but also, and in doing so, offered an opinion concerning the merits of an admitted contention.

On March 15, 2010, NARUC filed a petition to intervene as a party in the Yucca Mountain adjudicatory proceeding (ML100740714). That petition, which was subsequently granted by the presiding Construction Authorization Board, was supported by an affidavit you signed in your capacity as a government employee, specifically as Commissioner on the South Carolina Public Service Commission. See Wright affidavit (Exhibit 1) and U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 NRC 609, 636-644 (2010). You thereby advised (and supported) NARUC concerning its participation in the Yucca Mountain adjudicatory proceeding in your capacity as a government employee. This requires your recusal under 28 U.S.C. § 455 (b) (3).3 In addition your affidavit supported NARUCs standing to intervene by arguing that the citizens you represent as a member of the South Carolina Public Service Commission would suffer injuries (widespread contamination of the seventy-two commercial and five DOE sites across the United States, with resulting human health impacts) if the Yucca Mountain repository is not built. See Exhibit 1 at page 5; see also NARUC Petition at page 9. Both your affidavit, and NARUCs petition which you supported, cite to and rely on the critical conclusion in DOEs analysis of the NEPA No-Action Alternative that not licensing Yucca Mountain would (assuming that no effective institutional controls are in place after 100 years) lead to a situation where spent nuclear fuel and high-level radioactive waste storage facilities sites would begin to 3

The definition of proceeding in 28 U.S.C. § 455 (d) (1) makes clear that participation as an advisor in any stage of the litigation would be disqualifying. As applied to the NRC, this means that participation as an advisor in a stage of a proceeding when petitions to intervene are considered would be disqualifying.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 5 of 89 5

deteriorate and radioactive material would be released into the environment, contaminating the local atmosphere, soil, surface water, and groundwater. See NARUCs Petition at page 10, quoting with approval from DOEs analysis of the No-Action Alternative in its Final Environmental Impact Statement on Yucca Mountain; see also Exhibit 1 at page 6, citing with your apparent approval DOEs analysis of the No-Action Alternative in its 2002 Final Environmental Impact Statement on Yucca Mountain.4 Your testimony (affidavit) in this regard contests the merits of Nevadas admitted contention NEV-NEPA-22, which challenges DOEs No-Action Alternative as reliant on scenarios that are not available, appropriate, [or] reasonable. In particular, NEV-NEPA-22 alleges that the loss of institutional control after 100 years assumed by you in your affidavit (and by DOE in its environmental impact statement) is remote and speculative. See Nevada Petition to Intervene at page 1132 (ML083540096). NEV-NEPA-22 is an especially important NEPA contention because DOEs conclusion that the preferred action under NEPA is construction and operation of the Yucca Mountain repository would be fatally undermined if it is sustained. You thereby not only participated as a material witness and advisor in support of NARUCs intervention but also, in doing so, expressed an opinion concerning the merits of one specific and very important matter in controversy, NEV-NEPA-22. This also requires your recusal under 28 U.S.C. § 455 (b) (3).

4 The correct cite for your quote in your affidavit is to page S-83 of the Readers Guide and Summary, where DOE states that [t]here could be large public health and environmental consequences under the No-Action Alternative if there were no effective institutional control, causing storage facilities and containers to deteriorate and radioactive contaminants from the spent nuclear fuel and high-level radioactive waste to enter the environment. In such circumstances, there would be widespread contamination at the 72 commercial and 5 DOE sites across the Unites States, with resulting human health impacts. The conclusion here refers to DOEs analysis of No-Action Alternative Scenario 2 which assumes a loss of institutional control after 100 years. See page S-75 of the Readers Guide and Summary.

(Page 30 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 6 of 89 6

(2) 28 U.S.C. § 455 (b) (2)

Section 455 of Title 28 of the United States Code also includes a provision (28 U.S.C. § 455 (b) (2)) that requires recusal of a Federal judge where in private practice he served as a lawyer in the matter in controversy. . . . In Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 23 (1984), the Atomic Safety and Licensing Appeal Board held in regard to 28 U.S.C. § 455 (b) (2) that we encounter no difficulty in . . . concluding that, in the instance of an adjudicator versed in a scientific discipline rather than in the law, disqualification is required if he previously provided technical services to one of the parties in connection with the matter in controversy.5 Therefore a non-lawyer Commissioner is subject to disqualification under 28 U.S.C. § 455 (b) (2) whenever a lawyer would be disqualified under that same provision. Accordingly, former NRC Commissioner Apostolakis recused himself from the Yucca Mountain proceeding because of his prior involvement with Sandia Laboratories, DOEs lead laboratory for repository systems. See Notice of Recusal dated July 15, 2010 (ML101960556).

As established above, you provided advice to NARUC in preparing and filing its contested petition to intervene and, in doing so, also advised and took a position on an admitted contention. Therefore you would be disqualified by 28 U.S.C. § 455 (b) (2) and Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1), 19 NRC 13, supra, even if your advice to NARUC had been provided in your capacity as a private citizen.

5 The Appeal Board, which issued decisions denoted by an ALAB number, exercised final NRC adjudicatory decision authority until 1991 when it was abolished and its appellate function was assumed by the Commission itself. Its decisions still carry full precedential weight.

Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 59 note 2 (1994).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 7 of 89 7

(3) Federal Case Law In Williams v. Pennsylvania, 579 U.S. ___, 136 S.Ct. 1899 (2016), the U.S. Supreme Court held that there was an unconstitutional risk of actual bias when a judge had a prior significant, personal involvement in a partys participation in the case. In Williams, the judge was disqualified notwithstanding that he never actually appeared on behalf of any party in the criminal proceeding because, in his capacity as a supervisory prosecutor, he had been personally involved in prosecutorial strategy (authorizing the prosecutor in the case to seek the death penalty).

This result is in accord with the above discussion of 28 U.S.C. § 455. Moreover the case law is clear that simply signing an affidavit is disqualifying. TWA v. CAB, 254 F.2d 90, 91 (D.C.

Cir. 1958) (The fundamental requirements of fairness in the performance of such [adjudicatory]

functions require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleadings or briefs, take no part in the decision of that case by any tribunal on which he may thereafter sit).6 C. Your Frequent and Long-standing Expressions of Opinion that Yucca Mountain is Safe, Your Unqualified Advocacy in Favor of Yucca Mountain, and Your Criticism of Nevadas Myopic Opposition to Yucca Mountain Section 455 of Title 28 of the United States Code also includes a provision (28 U.S.C. § 455 (a)) that requires recusal of a Federal judge whenever his impartiality might reasonably be questioned. This requires a showing that would cause an objective, disinterested observer fully informed of the underlying facts [to] entertain significant doubt that justice would be done absent recusal. See Entergy Nuclear Operations (Pilgrim Nuclear Power Station), CLI-10-22, 6

TWA v. CAB was cited with approval in Am. Cyanamid Co. v. FTC, 363 F.2d 757,767 (6th Cir.

1966), American General Ins. Co. v. FTC, 589 F.2d 462, 463-464 (9th Cir. 1989), and Amos Treat & Co. v. SEC, 306 F.2d 260, 264-265 (D.C. Cir. 1962).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 8 of 89 8

72 NRC 202, 206 (2010). Nevada submits that a disinterested observer, fully informed of your frequent and long-standing expressions of opinion that a Yucca Mountain repository is necessary and will be safe, of your unqualified advocacy in favor of a Yucca Mountain repository, and of your characterization of Nevadas opposition to a Yucca Mountain repository as myopic, would certainly entertain significant doubt that justice would be done absent your recusal.

On or about April 26, 2005, you announced the formation of The Yucca Mountain Task Force. See Exhibit 2. You became the National Co-chairman of this Yucca Mountain Task Force and apparently remained so until 2010. Your 2010 affidavit on behalf of NARUCs intervention states that the Task Force was focused on promoting the expeditious opening of the Yucca Mountain repository in Nevada. See Exhibit 1 at page 1 (emphasis added).

Your announcement of the Task Force made passing reference to the need for safety but then you explained that one key activity of the Task Force would be [p]roviding a fresh new voice to the critical importance of expeditious implementation of the Yucca Mountain program given vital economic, energy and national security considerations - as well as the importance of progress on Yucca Mountain to new nuclear energy plant operation. You also stated similarly that there are compelling national security, energy security and economic considerations that strongly warrant expeditious completion of the Yucca Mountain project as mandated by the Nuclear Waste Policy Act. You stated further that I am optimistic about the future of the Yucca Mountain project. Then, in a comment that could only be referring to Nevada, you stated that I am confident that the National interest is larger than one states myopic resistance to moving this project forward - and I look forward to bringing this project closer to the goal line in the days and weeks to come. See Exhibit 2.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 9 of 89 9

Your Task Force also promptly followed up with a letter to the Chairman of the House Energy and Commerce Committee, dated June 10, 2005, where you stated (as co-sponsor) that we believe the best candidate for an interim storage or early receipt facility is Yucca Mountain.

Clearly this highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface facilities at Yucca Mountain. See Exhibit 3. A Joint Statement by you and the Honorable Charles Pray, dated May 25, 2005, says the same. See Exhibit 4.

Then, in 2008, when DOE finally submitted the Yucca Mountain license application to the NRC, you issued a statement on behalf of your Task Force which included the unqualified conclusion that the application represented three decades of sound science and common sense outlasting politics and rhetoric and an observation that the fact is that all roads eventually lead to the need for a national repository like Yucca Mountain if were going to continue to operate current plants and build a new generation of nuclear energy plants. In sharp contrast to your previous criticism of Nevada for its myopic opposition to a repository at Yucca Mountain, you commended various DOE officials and personnel for setting a schedule and meeting it while surmounting extraordinarily difficult political, fiscal, and legal roadblocks. See Exhibit 5.7 Your advocacy for Yucca Mountain did not end with the Yucca Mountain Task Force.

Beginning in 2006 you also served as the National Chairman of the Nuclear Waste Strategy 7

These legal roadblocks almost certainly included Nevadas successful judicial challenge to NRCs and EPAs licensing standards for Yucca Mountain and Nevadas successful challenge to DOEs initial LSN certification. See NEI v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) and U.S.

Department of Energy (High-Level Waste Repository) Pre-Application Matters, LBP-04-20, 60 NRC 300 (2004). Only a committed and zealous advocate for Yucca Mountain would characterize Nevadas successful endeavors to hold DOE and NRC accountable for compliance with legal requirements as an erection of legal roadblocks.

(Page 34 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 10 of 89 10 Coalition. See Exhibit 1 at page 1.8 On July 27, 2010, you testified on behalf of the Coalition (and others) before the House of Representatives Committee on the Budget, stating that we believe that the license application shows that Yucca Mountain will meet the requirements of the NWPA and regulations. See Exhibit 8 at pp. 44, 46. And, on September 10, 2012, in a formal statement you submitted to the Senate Committee on Energy and Natural Resources, you opined on behalf of the Coalition (and others) that the proposed Yucca Mountain repository remains the nations best hope for promptly developing geologic disposal. See Exhibit 9 at p. 70. It is quite apparent that your testimony and statement reflected your personal opinions as well as those of the Coalition.

Earlier, on February 1, 2012, you testified for NARUC before the Subcommittee on Environment and the Economy of the House Committee on Energy and Commerce, noting that NARUC then represented a pro Yucca position. See Exhibit 10 at p. 137.

It is true that an adjudicatory official like yourself is presumed objective and capable of judging a particular controversy fairly. E.g., Nuclear Information and Resource Service v. NRC, 509 F.3d 562 (D.C. Cir. 2007). And it is also true that a casual and isolated public expression of opinion about party, or a partys expert witness, or an issue in dispute, is not necessarily 8

The Nuclear Waste Strategy Coalition was no stranger to Yucca Mountain. Earlier, on December 7, 2005, the Coalition commented to NRC that [t]he geologic structure of YM, as the DOE studies have shown, provides more than adequate protection for storage of spent nuclear fuel and high-level radioactive waste. We believe more than 20 years of in-depth scientific research has covered every facet of Yucca Mountain, from hydrology to geology to seismology.

ML053410361. See Exhibit 6. And, on April 16, 2008, during your term as Coalition Chairman, the Coalition supported an application for an NTSB certificate of public convenience and necessity, stating that [t]aking into account DOEs transportation safety record and its extensive analyses and consideration of safety factors during the studies of the proposed Caliente railroad, the NWSC encourages the Board to grant DOE the Certificate of Public Convenience and Necessity. See Exhibit 7.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 11 of 89 11 disqualifying. Id. at 571. But your behavior described above is altogether different and rebuts any presumption of objectivity and fairness.

As indicated above, from 2005 through 2012 you offered no less than six separate public statements of support for the Yucca Mountain repository, including two unqualified opinions that DOEs license application represented sound science and demonstrated compliance with the NWPA and NRC regulations, and a gratuitous insult to Nevada for its myopic resistance to a Yucca Mountain repository.9 Some of these statements and opinions - for example, your testimony that the license application shows that Yucca Mountain will meet the requirements of the NWPA and regulations were not offered in a casual or offhand manner, but in very formal proceedings before Congress. See Ex. 8 at p. 48. Not once did you acknowledge that legitimate safety and environmental issues had been raised and remained unresolved, as the CAB so found in admitting nearly 300 contentions in the adjudicatory proceeding. Not once did you concede that Nevadas opposition may be based on a good faith concerns for safety and the environment.

Moreover you established and then supported a task force focused on promoting the expeditious opening of the Yucca Mountain repository in Nevada. See Ex. 1 at p. 2, supra. It takes extraordinary initiative, careful deliberation, and even passion to establish a task force to advocate for particular cause. This kind of advocacy is wholly inconsistent with your new role as a neutral adjudicatory decision-maker. An objective, disinterested observer fully informed of the facts set forth above would surely entertain significant doubt that justice would be done absent your recusal.

9 The number of statements of support would be ten if multiple statements of support in a single Exhibit are counted separately.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 12 of 89 12 IV. Conclusion Nevada respectfully requests that you recuse (disqualify) yourself from participating in any Commission decision in the Yucca Mountain licensing process, including the formal adjudicatory licensing proceeding (should it be restarted).

V. Consultation Nevadas counsel certifies that he has made a sincere effort to contact other parties in the proceeding and resolve the issue raised in this request, as required by 10 C.F.R. § 2.323(b), and that the movant's efforts to resolve the issue have been unsuccessful. The responses to counsels outreach efforts were as follows: Eureka County advised that it does not plan to take a position; Nye County advised that it respectfully declines to support the request; NARUC advised that its participation was limited to opposing DOEs withdrawal motion but that it believes Nevadas request on its face provides no legal basis for recusal under the applicable standards; Aiken County advised that it does not support the planned request; the NRC Staff advised that it takes no position on the proposed filing; South Carolina advised that it does not support the planned request; the Nuclear Energy Institute advised that it takes no position on the proposed filing; the County of Inyo will join Nevada in its request; and California takes no position on Nevadas proposed request.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 13 of 89 13 Respectfully submitted, (signed electronically)

Martin G. Malsch

• Charles J. Fitzpatrick

• John W. Lawrence

• Egan, Fitzpatrick, Malsch & Lawrence, PLLC 7500 Rialto Boulevard, Building 1, Suite 250 Austin, TX 78735 Tel: 210.496.5001 Toll-Free Fax: 855.427.6554 mmalsch@nuclearlawyer.com cfitzpatrick@nuclearlawyer.com jlawrence@nuclearlawyer.com

• Special Deputy Attorneys General Dated: June 7, 2018 (Page 38 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 14 of 89 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Atomic Safety and Licensing Board In the Matter of )

)

U.S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW

)

(High Level Waste Repository) )

CERTIFICATE OF SERVICE I hereby certify that the foregoing The State of Nevadas Request that Commissioner Wright be Recused, has been served upon the following persons by email this 7th day of June, 2018:

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of Commission Appellate Mail Stop T-3F23 Adjudication Washington, DC 20555-0001 Mail Stop O-7H4M Construction Authorization Board 04 Washington, DC 20555-0001 (CAB04) OCAA Mail Center Thomas S. Moore, Chair ocaamail@nrc.gov Administrative Judge thomas.moore@nrc.gov U.S. Nuclear Regulatory Commission Paul S. Ryerson Office of the Secretary of the Commission Administrative Judge Mail Stop O-4F00 paul.ryerson@nrc.gov Washington, DC 20555-0001 Richard E. Wardwell Hearing Docket Administrative Judge hearingdocket@nrc.gov richard.wardwell@nrc.gov U.S. Department of Energy U.S. Nuclear Regulatory Commission Office of General Counsel Office of the General Counsel 1000 Independence Avenue S.W.

Mail Stop O-14A44 Washington, DC 20585 Washington, DC 20555-0001 Martha S. Crosland, Esq.

Carrie Safford, Esq. martha.crosland@hq.doe.gov carrie.saffod@nrc.gov Nicholas P. DiNunzio, Esq.

Jessica Bielecki, Esq. nick.dinunzio@rw.doe.gov jessica.bielecki@nrc.gov James Bennett McRae Adam Gendelman, Esq. ben.mcrae@hq.doe.gov adam.gendelman@nrc.gov Cyrus Nezhad, Esq.

OGC Mail Center cyrus.nezhad@hq.doe.gov OGCMailCenter@nrc.gov Christina C. Pak, Esq.

christina.pak@hq.doe.gov (Page 39 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 15 of 89 15 Office of Counsel, Naval Sea Systems Counsel for State of Nevada Command Egan Fitzpatrick Malsch & Lawrence, PLLC Nuclear Propulsion Program 7500 Rialto Boulevard 1333 Isaac Hull Avenue, SE, Building 197 Building 1, Suite 250 Washington, DC 20376 Austin, TX 78735 Frank A. Putzu, Esq. Charles J. Fitzpatrick, Esq.

frank.putzu@navy.mil cfitzpatrick@nuclearlawyer.com John W. Lawrence, Esq.

For U.S. Department of Energy jlawrence@nuclearlawyer.com Talisman International, LLC Laurie Borski, Paralegal 1000 Potomac St., NW, Suite 300 lborski@nuclearlawyer.com Washington, DC 20007 Patricia Larimore, Senior Paralegal Bureau of Government Affairs plarimore@talisman-intl.com Nevada Attorney General 100 N. Carson Street Counsel for U.S. Department of Energy Carson City, NV 89701 Morgan, Lewis & Bockius LLP Belinda Suwe, Deputy Attorney General 1111 Pennsylvania Ave., NW bsuwe@ag.nv.gov Washington, DC 20004 Marta Adams, Special Deputy Attorney Lewis M. Csedrik, Esq. General lcsedrik@morganlewis.com adamsnaturalresourcesllc@gmail.com Thomas D. Poindexter, Esq.

tpoindexter@morganlewis.com Nevada Agency for Nuclear Projects Alex S. Polonsky, Esq. Nuclear Waste Project Office apolonsky@morganlewis.com 1761 East College Parkway, Suite 118 Thomas A. Schmutz, Esq. Carson City, NV 89706 tschmutz@morganlewis.com Robert J. Halstead, Executive Director Paul J. Zaffuts, Esq. bhalstead@nuc.state.nv.us pzaffuts@morganlewis.com Steve Frishman, Tech. Policy Coordinator Andrea Preate-Regni, Esq. steve.fr@hotmail.com apreate-regni@morganlewis.com Shannon Staton, Legal Secretary Nye County Regulatory/Licensing Advisor sstaton@morganlewis.com 18160 Cottonwood Rd. #265 Elaine M. Hirsch, Legal Secretary Sunriver, OR 97707 ehirsch@morganlewis.com Malachy Murphy, Esq.

mrmurphy@chamberscable.com Counsel for State of Nevada Egan Fitzpatrick Malsch & Lawrence, PLLC Nye Co. Nuclear Waste Repository Project 1750 K Street, NW, Suite 350 Office Washington, DC 20006 2101 E. Calvada Boulevard, Suite 100 Martin G. Malsch, Esq. Pahrump, NV 89048 mmalsch@nuclearlawyer.com Celeste Sandoval, Quality Assurance Susan Montesi: Records Spec.

smontesi@nuclearlawyer.com csandoval@co.nye.nv.us (Page 40 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 16 of 89 16 Counsel for Lincoln County, Nevada Counsel for Eureka County, Nevada Whipple Law Firm Harmon, Curran, Speilberg & Eisenberg, 1100 S. Tenth Street LLP Las Vegas, NV 89017 1726 M Street N.W., Suite 600 Annie Bailey, Legal Assistant Washington, DC 20036 baileys@lcturbonet.com Diane Curran, Esq.

Adam L. Gill, Esq. dcurran@harmoncurran.com adam.whipplelaw@yahoo.com Eric Hinckley, Law Clerk Eureka County, Nevada erichinckley@yahoo.com Office of the District Attorney Bret Whipple, Esq. 701 S. Main Street, Box 190 bretwhipple@nomademail.com Eureka, NV 89316-0190 Theodore Beutel, District Attorney Lincoln County District Attorney tbeutel.ecda@eurekanv.org P. O. Box 60 Pioche, NV 89403 Nuclear Waste Advisory for Eureka Gregory Barlow, Esq. County, Nevada lcda@lcturbonet.com 1983 Maison Way Carson City, NV 89703 Lincoln County Nuclear Oversight Program Abigail Johnson, Consultant P.O. Box 1068 eurekanrc@gmail.com Caliente, NV 89008 Connie Simkins, Coordinator For White Pine County, Nevada connie@lcnop.com Intertech Services Corporation PO Box 2008 For Lincoln County, Nevada Carson City, NV 89702 Intertech Services Corporation Mike Baughman, Consultant PO Box 2008 mikebaughman@charter.net Carson City, NV 89702 Mike Baughman, Consultant For Eureka County, Nevada mikebaughman@charter.net NWOP Consulting, Inc.

1705 Wildcat Lane Counsel for Nye, County, Nevada Ogden, UT 84403 601 Pennsylvania Avenue NW Loreen Pitchford, Consultant North Building, Suite 1000 nwop@comcast.net Washington, DC 20004 Robert Andersen, Esq. Eureka County Public Works randersen@clarkhill.com PO Box 714 Christopher Clare, Esq. Eureka, NV 89316 cclare@clarkhill.com Ronald Damele, Director rdamele@eurekanv.org Clark County, Nevada 500 S. Grand Central Parkway Las Vegas, NV 98155 Phil Klevorick, Sr. Mgmt Analyst klevorick@clarkcountynv.gov Elizabeth A. Vibert, Deputy District Attorney Elizabeth.Vibert@ClarkCountyDA.com (Page 41 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 17 of 89 17 Counsel for Churchill, Esmeralda, Lander, Counsel for Inyo County, California and Mineral Counties, Nevada Gregory L. James, Attorney at Law Armstrong Teasdale, LLP 712 Owens Gorge Road 3770 Howard Hughes Parkway HC 79, Box Suite 200 Mammoth Lakes, CA 93546 Las Vegas, NV 89169 gljames@earthlink.net Tara Baugh tbaugh@armstrongteasdale.com Counsel for Inyo County, California Law Office of Michael Berger Kolesar & Leatham 479 El Sueno Road 400 S. Rampart Boulevard Santa Barbara, CA 93110 Suite 400 Michael Berger, Esq.

Las Vegas, NV 89145 michael@lawofficeofmichaelberger.com Robert F. List, Esq. Robert Hanna, Esq.

rlist@klnevada.com robert@lawofficeofmichaelberger.com Esmeralda County Repository Oversight Inyo Co Yucca Mountain Repository Program- Assessment Office Yucca Mountain Project P. O. Box 367 PO Box 490 Independence, CA 93526-0367 Goldfield, NV 89013 Cathreen Richards, Associate Planner Edwin Mueller, Director crichards@inyocounty.us muellered@msn.com Counsel for State of Washington Mineral County Nuclear Projects Office Office of the Attorney General P.O. Box 1600 P. O. Box 40117 Hawthorne, NV 89415 Olympia, WA 98504-0117 Linda Mathias, Director Todd R. Bowers, Esq.

yuccainfo@mineralcountynv.org toddb@atg.wa.gov Andrew A. Fitz, Esq.

For Lincoln and White Pine County, Nevada andyf@atg.wa.gov Jason Pitts, LSN Administrator Michael L. Dunning, Esq.

P.O. Box 126 michaeld@atg.wa.gov Caliente, NV 89008 H. Lee Overton, Esq.

jayson@idtservices.com leeo1@atg.wa.gov Danielle French, Esq.

For White Pine County, Nevada daniellef@atg.wa.gov Michael Wheable, District Attorney Teresa Trippel, Esq.

801 Clark Street, Suite 3 teresat@atg.wa.gov Ely, NV 89301 mwheable@whitepinecountynv.gov California Energy Commission 1516 Ninth Street White Pine Co. Nuclear Waste Project Ofc Sacramento, CA 95814 959 Campton Street Kirk C. Oliver, Esq.

Ely, NV 89301 Senior Staff Counsel Mike Simon, Director kirk.oliver@energy.ca.gov wpnucwst1@mwpower.net (Page 42 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 18 of 89 18 California Department of Justice Counsel for Native Community Action Office of the Attorney General Council 1515 Clay Street, 20th Fl, PO Box 70550 Alexander, Berkey, Williams & Weathers Oakland, CA 94612-0550 LLP Timothy E. Sullivan, Deputy Attorney 2030 Addison Street, Suite 410 General Berkeley, CA 94704 timothy.Sullivan@doj.ca.gov Curtis G. Berkey, Esq.

cberkey@abwwlaw.com California Department of Justice Rovianne A. Leigh, Esq.

Office of the Attorney General rleigh@berkeywilliams.com 300 S. Spring Street, Suite 1702 Scott W. Williams, Esq.

Los Angeles, CA 90013 swilliams@abwwlaw.com Megan Hey, Esq.

megan.hey@doj.ca.gov Native Community Action Council P.O. Box 140 Counsel for State of South Carolina Baker, NV 89311 Davidson & Lindemann, P.A. Ian Zabarte, Member of Board of Directors 1611 Devonshire Drive mrizabarte@gmail.com P.O. Box 8568 Columbia, SC 29202 Counsel for Prairie Island Indian Kenneth P. Woodington, Esq. Community kwoodington@dml-law.com Public Law Resource Center PLLC 505 N. Capitol Avenue Counsel for Aiken County, SC Lansing, MI 48933 Haynsworth Sinkler Boyd, PA Don L. Keskey, Esq.

1201 Main Street, Suite 2200 donkeskey@publiclawresourcecenter.com P. O. Box 11889 Columbia, SC 29211-1889 Prairie Island Indian Community Legal Thomas R. Gottshall, Esq. Department tgottshall@hsblawfirm.com 5636 Sturgeon Lake Road Ross Shealy, Esq. Welch, MN 55089 rshealy@hsblawfirm.com Philip R. Mahowald, Esq.

pmahowald@piic.org Florida Public Service Commission Office of the General Counsel Nuclear Energy Institute 2540 Shumard Oak Boulevard Office of the General Counsel Tallahassee, FL 32303 1776 I Street, NW Suite 400 Samantha M. Cibula, Esq. Washington, DC 20006-3708 scibula@psc.state.fl.us Jerry Bonanno, Esq.

jxb@nei.org Anne W. Cottingham, Esq.

awc@nei.org Ellen C. Ginsberg, Esq.

ecg@nei.org (Page 43 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 19 of 89 19 Counsel for Nuclear Energy Institute Counsel for Joint Timbisha Shoshone Tribal Pillsbury Winthrop Shaw Pittman LLP Group 1200 Seventeenth Street NW Fredericks, Peebles, & Morgan LLP Washington, DC 20036 1001 Second St.

Jay E. Silberg, Esq. Sacramento, CA 95814 jay.silberg@pillsburylaw.com Felicia M. Brooks, Data Administrator Timothy J.V. Walsh, Esq. fbrooks@ndnlaw.com timothy.walsh@pillsburylaw.com Ross D. Colburn, Law Clerk rcolburn@ndnlaw.com Counsel for Nuclear Energy Institute Sally Eredia, Legal Secretary Winston & Strawn LLP seredia@ndnlaw.com 1700 K Street, N.W. Darcie L. Houck, Esq.

Washington, DC 20006-3817 dhouck@ndnlaw.com William A. Horin, Esq. Brian Niegemann, Office Manager whorin@winston.com bniegemann@ndnlaw.com David A. Repka, Esq. John M. Peebles, Esq.

drepka@winston.com jpeebles@ndnlaw.com Carlos L. Sisco, Senior Paralegal Robert Rhoan, Esq.

csisco@winston.com rrhoan@ndnlaw.com Counsel for National Association of Via Email To:

Regulatory Utility Commissioners Dan Schinhofen (NARUC) Nye County Commissioner 1101 Vermont Avenue NW, Suite 200 dschinhofen@co.nye.nv.us Washington, DC 20005 James Ramsay, Esq.

jramsay@naruc.org Robin Lunt, Esq.

rlunt@naruc.org Fredericks, Peebles, & Morgan LLP 3610 North 163rd Plaza Omaha, NE 68116 Shane Thin Elk, Esq.

sthinelk@ndnlaw.com For Joint Timbisha Shoshone Tribal Group Indian Village Road, P.O. Box 206 Death Valley, CA 92328-0206 Joe Kennedy, Executive Director joekennedy08@live.com Tameka Vazquez, Bookkeeper purpose_driven12@yahoo.com (signed electronically)

Susan Montesi (Page 44 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 20 of 89 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Commissioner David A. Wright In the Matter of )

)

U.S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW

)

(High Level Waste Repository) )

AFFIDAVIT OF LAURIE BORSKI UNDER PENALTY OF PERJURY REGARDING EXHIBITS TO NEVADA REQUEST THATCOMMISSIONER WRIGHT BE RECUSED

1. My name is Laurie Borski. I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge.

2. I am Paralegal at Egan Fitzpatrick Malsch & Lawrence PLLC, Special Deputy Attorneys General for the State of Nevada in the referenced action. As part of my regular job duties as a paralegal, I was tasked with, and was solely responsible for, correctly identifying and compiling the exhibits attached to Nevadas Motion for Recusal of Commissioner Wright.

3. The exhibits attached thereto were obtained from credible resources that I located, and then downloaded and compiled by me in the course of a regularly conducted business activity of Egan Fitzpatrick Malsch & Lawrence PLLC. The attached exhibits are exact duplicates of records downloaded by me and are true and correct. I did not redact or otherwise alter any of the exhibits.

4. I created the excerpts that constitute Exhibits 1, 8, 9 and 10 from exact duplicates of pleadings and congressional testimony obtained from credible resources, downloaded and (Page 45 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 21 of 89 2

compiled by me in the course of a regularly conducted business activity of Egan Fitzpatrick Maisch & Lawrence PLLC. The excerpts are true and correct copies and were made by me in the course of a regularly conducted activity of Egan Fitzpatrick Maisch & Lawrence PLLC. I did not redact or otherwise alter any of the extracts or the original exhibits from which the extracts were created.

5. I declare under penalty of perjury that the foregoing statements are true and correct.

Further, Affiant says not.

LAURIE BORSKI STATE OF TEXAS )

)

COUNTY OF GUADALUPE )

SWORN TO, and SUBSCRIBED before me by LAURIE BORSKI on the 3CJ day of May, 2018.

DEANNA WAITE Notary Public OJ ruulf11Ll£uJa otary Public, State of Texas State of Texas My Comm. Exp. 01-23-2019 oll23}1oJCJ My Commission Expires:

(Page 46 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 22 of 89 Exhibit 1 (Page 47 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 23 of 89 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Docket No. 63-001-HLW U.S. DEPARTMENT OF ASLBP NO. 09-892-HLW-CAB04 ENERGY (High Level Waste Repository) March 15, 2010 NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS PETITION TO INTERVENE James Bradford Ramsay GENERAL COUNSEL Robin J. Lunt ASSISTANT GENERAL COUNSEL 1101 Vermont Avenue, Suite 200 Washington, DC 20005 Telephone: 202-898-2200 Attorneys for Proposed Intervenor, National Association of Regulatory Utility Commissioners (Page 48 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 24 of 89 Attachment 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Docket No. 63-001-HLW U.S. DEPARTMENT OF ASLBP NO. 09-892-HLW-CAB04 ENERGY (High Level Waste Repository) March 15, 2010 AFFIDAVIT OF THE HONORABLE DAVID WRIGHT, NARUC MEMBER COMMISSIONER, IN SUPPORT OF THE STANDING OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS David Wright, being duly sworn, states as follows:

1. My name is David Wright. I have been a Commissioner on the South Carolina Public Service Commission and a voting member of the National Association of Regulatory Utility Commissioners (NARUC) since March 3, 2004. I am also currently the Chairman of the NARUCs Nuclear Issues-Waste Management Disposal Subcommittee, as well as, NARUCs Washington Action and Electricity Committees. In 2005, I became a National Co-Chairman of the Yucca Mountain Task Force, a national group of commissioners, businesses, and independent organizations focused on promoting the expeditious opening of the Yucca Mountain repository in Nevada. In December 2006, I became National Chairman of the Nuclear Waste Strategy Coalition (NWSC). I have served as a representative and board member of NWSC since becoming a commissioner. I have also served as the President of the Southeastern Association of Regulatory Utility Commissioners. I receive official mail at: South Carolina Public Service Commission, 101 Executive Center Drive, Columbia, SC 29210.

NARUC PETITION TO INTERVENE 1 (Page 49 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 25 of 89

2. NARUC, founded in 1889, includes as members commissioners at regulatory agencies in the fifty States, the District of Columbia, Puerto Rico, and the Virgin Islands. These State employees are charged with regulating the rates and conditions of service associated with the intrastate operations of electric, natural gas, water, and phone utilities.

3. In February 2010, at its recent winter meetings held in Washington, D.C., NARUC passed a Resolution on National Policy for Management and Disposal of Spent Fuel from Commercial Nuclear Power Plants. A copy of the resolution is attached. That resolution [1]

instructs NARUC to call upon the Secretary of Energy not to withdraw the Yucca Mountain license application from the review process underway at the NRC, [2] points out that NARUC and State utility commissions as stakeholders in the disposal policy on behalf of ratepayers who continue to bear the ultimate cost of the fee payments to the Fundshould play an active role in representing their views to the Blue Ribbon Commission, drawing upon the multiple NARUC nuclear waste policy resolutions adopted over the past 25 years, and [3] specifically instructs NARUC to convey to the (Nuclear Regulatory) Commission that any alternative that leaves the spent nuclear fuel at present storage sites indefinitely, whether managed by the owners or by the government, is inconsistent with the NWPA findings of 1982 and would break faith with the communities which host those reactors with the understanding that the spent fuel would be removed by the government.

4. Like almost all of my fellow NARUC State Commissioners, I am charged by State statute with overseeing the operations of electric utilities operating in my State. For example, this past February, my Commission unanimously approved a request by our States largest utility, South NARUC PETITION TO INTERVENE 2 (Page 50 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 26 of 89 Carolina Electric & Gas (SCE&G), to join with a State-owned utility to build two new nuclear reactors. We approved rate increases to finance SCE&Gs $5.4 billion dollar investment in the new nuclear plant, which will be located just 30 miles north of our States capital in Columbia.

Order No. 2009-104(A) (March 2, 2009) (Docket No. 2008-196-E) Like many of my NARUC colleagues, limiting both the expense and the risks1 of on-site storage of spent nuclear fuel is a part of my broader regulatory responsibilities under the laws of my State.

5. The Nuclear Waste Policy Act (NWPA), enacted in 1982, made the federal government responsible for safe and final disposal of such waste. Under the Act, utilities pay fees for disposal through the Nuclear Waste Fund (NWF). Those fees are passed through to ratepayers. Although 1

Safe operation of electric facilities, including nuclear plants, is a key focus of my Commissions oversight.

See, e.g., CHAPTER 103 South Carolina Code of Regulations, ARTICLE 3. ELECTRIC SYSTEMS: 26 S.C. Code Ann. Regs. 103-312(2)(D)(e). The electrical utility shall advise the commission . . . of the name, address and telephone number of the . . . persons, to be contacted in connection with . . . c. Engineering and/or Operations. . . . e.

Emergencies during non-office hours.; 26 S.C. Code Ann. Regs. 103-313. Inspection of Utility Plant. - A. Each utility shall . . . provide . . . a statement regarding the condition and adequacy of its plant, equipment, facilities and service . . . [and] . . . keep sufficient records to give evidence of compliance with its inspection programs.; 26 S.C.

Code Ann. Regs. 103-315. A. Each electrical utility shall . . . report . . . each material incident [to] the operation of the electrical utility's property, facilities, or service including, but not limited to: (a) serious injury or death of any person; (b) evacuation; and (c) damage to a customer's or third party's property . . . Such first report shall later be supplemented . . . by a statement of the cause . . . and the measures, if any . . . taken to reduce the risk of similar incidents . . . B. Each electrical utility shall establish . . . procedures for analyzing, reporting, and minimizing the possibilities of any future incidents. 26 S.C. Code Ann. Regs. 103-347. Each electrical utility . . . shall operate and maintain in a safe, efficient and proper condition all of the facilities and equipment. 26 S.C. Code Ann. Regs.

103-360. The electric plant . . . shall be constructed, installed, maintained and operated in accordance with good engineering practice to assure, as far as reasonably possible, continuity of service . . . and the safety of persons and property. SubArticle 8 SAFETY 26 S.C. Code Ann. Regs. 103-390. As criteria of accepted good safety practice of the electrical utility, the commission shall use the applicable provisions of the standards listed in regulation 103-361. 26 S.C. Code Ann. Regs. 103-391. A. Each electrical utility shall exercise reasonable care to reduce the hazards to which its employees, its customers and the general public may be subjected. B. The electrical utility shall give reasonable assistance to the ORS in the investigation of the cause of incidents and shall give reasonable assistance to the commission . . . in the determination of suitable means of preventing incidents. C. Each electrical utility shall maintain a summary of all reportable incidents. 26 S.C. Code Ann. Regs. 103-392. Safety Program.

Each electrical utility shall adopt and execute a safety program, fitted to the size and type of its operations. As a minimum, the safety program should: a. Require employees to use suitable . . . equipment in order that they may perform their work in a safe manner. b. Instruct employees in safe methods of performing their work. . . . d.

Establish liaison with appropriate public officials . . . in anticipation of a potential emergency. e. Establish an educational program to enable customers and the general public to recognize and report an electrical emergency.(emphasis added) These regulations are available online at:

http://www.scstatehouse.gov/coderegs/c103.htm#103-305 NARUC PETITION TO INTERVENE 3 (Page 51 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 27 of 89 utilities and their ratepayers continue to pay these charges, the United States Department of Energy (DOE), which manages the disposal program, failed to meet its statutory and contractual obligation to begin waste acceptance in 1998. To date, South Carolinas ratepayers have paid about $1.2 billion dollars in fees levied pursuant to the NWPA to develop a permanent storage site and effectively bear both the increased costs and risks of onsite storage. Cumulatively, ratepayers across the country, protected by my fellow NARUC Commissioners in other States, have contributed about $17 billion in fees.

6. Nuclear power supplies electricity to one out of every two homes and businesses in South Carolina. It accounts for 51.2 percent of the State's electricity according to the U.S. Energy Information Administration. There are seven nuclear power plants in South Carolina along with a DOE site near Aiken, South Carolina that houses foreign spent fuel as well as defense high level nuclear waste.2

7. Because nuclear power fuels about 20 percent of the nations electricity supply, it raises both cost and safety issues for NARUC member State Commissioners across the country, especially for those where nuclear plants are located, i.e., in Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. See, U.S. Energy 2

See, State Profiles, U.S. Energy Information Administration (Independent Statistics and Analysis) at:

<http://www.eia.doe.gov/cneaf/nuclear/page/at_a_glance/reactors/states.html> (last accessed March 15, 2010)

(Lists 31 states that have commercial nuclear reactors, the generation and capacity trends, general locations, and State emissions levels. Profiles updated with 2007 emissions data on November 6, 2009.)

NARUC PETITION TO INTERVENE 4 (Page 52 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 28 of 89 Information Administration, Independent Statistics and Analysis, States with Commercial Nuclear Industries, available online at:

http://www.eia.doe.gov/cneaf/nuclear/page/at_a_glance/reactors/states.html (Accessed March 12, 2010).

8. DOEs Final Environmental Impact Statement for the Yucca Mountain Geological Repository concludes that not building the repository could result in widespread contamination of the seventy-two commercial and five DOE sites across the United States, with resulting human health impacts. (DOE/EIS0250, Section 2.12).3

9. Continued operation of existing nuclear plants requires some safe and secure method of disposing of the high level radioactive waste and spent nuclear fuel generated. Effective management and permanent disposal of nuclear waste is essential to minimize the life cycle costs of these facilities. The rising expenses of expanding on-site storage while simultaneously funding reactor decommissioning accounts and the long promised DOE centralized waste repository continues to increase the costs of nuclear energy.

10. Many of NARUCs State commission members scrutinize these costs of electric utilities to ensure ratepayers pay only for expenses that are reasonable and prudent. Utility plans for interim on-site storage involve large sums and raise significant financial issues.

3 See, generally, Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 105-6 (1976) (Zone of interests created by the AEA is avoidance of a threat to health and safety of the public). Cf. footnote 1 supra.

NARUC PETITION TO INTERVENE 5 (Page 53 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 29 of 89

11. Spent fuel continues to pile up at 73 locations in 35 States at sites that were never intended for long-term storage, and State-regulated utilities (along with numerous State commissions) expend significant resources on related protracted litigation over DOEs non-performance. Ratepayers ultimately bear not only the cost of utility payments to DOE intended to cover the cost of the disposal program and the costs of the additional on-site storage required by DOEs refusal to take that waste, but also the costs of the associated protracted litigation over DOEs refusal to take the waste, as well as litigation to block new plants exacerbated by DOEs delay in approving a repository.

12. Delays in the repository program, such as the Department of Energys (DOE) recent motion to scrap the application for the Yucca Mountain facility that sparked the need for this NARUC intervention, necessarily results in the owners and operators of nuclear power plants having to store greater quantities of used nuclear fuel for longer periods of time, increasing both costs and risks associated with interim storage and also providing additional reasons to delay construction of new plants. Ratepayers in my State (and many other NARUC member States) continue to pay for a national storage solution, enhanced litigation costs, and the increased costs of interim storage. History suggests if the DOE withdrawal motion is successful, it will effectively set the date the Federal government can finally begin to accept waste back at least 25 years. As State Commissioners, my NARUC colleagues across the country and I have an obvious interest in this proceeding - protecting ratepayers - an interest no other party will adequately represent. There is no question that our respective statutory duties to protect ratepayers are impacted by whatever action the NRC takes on the motion to withdraw.

NARUC PETITION TO INTERVENE 6 (Page 54 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 30 of 89 NARUC PETITION TO INTERVENE 7 (Page 55 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 31 of 89 Resolution on National Policy for Management and Disposal of Spent Fuel from Commercial Nuclear Power Plants WHEREAS, The Nuclear Waste Policy Act (NWPA) of 1982 sets national policy that the federal government is responsible for safe, permanent disposal of all government and commercial high-level radioactive waste, including spent nuclear fuel, in a geologic repository beginning in 1998; and WHEREAS, Those who have benefitted from nuclear-generated electricityreactor owners and ratepayersunder the NWPA were to pay for the commercial share of disposal costs through fees paid to the Nuclear Waste Fund; and WHEREAS, Reactor owners and ratepayers made fee payments since 1983 totaling over $16 billion to the Fund, which earned another $13.5 billion in interest, to more than meet the needs of the repository development program, which encountered numerous managerial, financial, legal and political difficulties resulting in failure to meet the 1998 date set in statute and contracts with the reactor owners; and WHEREAS, When the Department of Energy, as disposal program manager, failed to begin waste acceptance in 1998, the reactor owners sued for partial breach of contract for which the Federal Court of Appeals found the government liable; and WHEREAS, DOE and the Justice Department estimate the liability for court-awarded damages and settlements could be as much as $12.3 billionif the waste were to be accepted for disposal by 2020; and WHEREAS, The Obama Administration declared its intent to terminate the Yucca Mountain repository development program and instead has appointed the Blue Ribbon Commission on Americas Nuclear Future to evaluate alternative disposal strategies and recommend a new direction that does not involve Yucca Mountain; and WHEREAS, NARUC believes current law regarding Yucca Mountain development must be followed, however the Association must prepare itself for the possibility that the Administration may succeed in canceling the repository project; now, therefore be it RESOLVED, That the Board of Directors of the National Association of Regulatory Utility Commissioners, convened at its 2010 Winter Committee Meetings in Washington, D.C.,

expresses its disappointment at having the federal government take 25 years and expend over

$10 billion on Yucca Mountain as the repository site only to have the repository project be proposed to be cancelled before the Nuclear Regulatory Commission made a safety and technical decision on the license application submitted in 2008; and be it further RESOLVED, That NARUC call upon the Secretary of Energy not to withdraw the Yucca Mountain license application from the review process underway at the NRC; and be it further NARUC PETITION TO INTERVENE 8 (Page 56 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 32 of 89 RESOLVED, That NARUC and State utility commissions as stakeholders in the disposal policy on behalf of ratepayerswho continue to bear the ultimate cost of the fee payments to the Fundshould play an active role in representing their views to the Blue Ribbon Commission, drawing upon the multiple NARUC nuclear waste policy resolutions adopted over the past 25 years; and be it further RESOLVED, That NARUC convey to the Commission that any alternative that leaves the spent nuclear fuel at present storage sites indefinitely, whether managed by the owners or by the government, is inconsistent with the NWPA findings of 1982 and would break faith with the communities which host those reactors with the understanding that the spent fuel would be removed by the government; and be it further RESOLVED, That the Commission should seek to determine if there is something about a geological repository generally or Yucca Mountain specifically that makes either a poor choice, suggesting a search should begin for a new repository site; and be it further RESOLVED, That if a new repository program is to be recommended, then a new, more transparent site selection process should be considered, a new organization might be better suited for managing it and a reformed financing means be established that more reliably supports the new disposal strategy instead of subsidizing unrelated government activities; and be it further RESOLVED, That NARUC pro-actively inform the Commission, DOE and the Congress that there are benefits in taking an initial near-term action to provide government or industry-run central interim storage of used nuclear fuel from the nine shutdown reactor sites, since it seems that whatever new disposal or reprocessing strategy is pursued, it will be unlikely to be in operation for another twenty or more years; and be it further RESOLVED, That the federal government and owners of spent nuclear fuel should be encouraged to simplify and make equitable settlements over the ongoing litigation that provides payment for past expenses that the owners should not have to have incurred had DOE provided the disposal services agreed in the Standard Contracts; and to develop a regime for forecasting future payments without court-ordered judgments including suspension of Nuclear Waste Fund fee payments unless and until a revised program is agreed upon or the Yucca Mountain Project is fully restarted.

Sponsored by the Committees on Electricity and Energy Resources and the Environment Adopted by the NARUC Board of Directors February 17, 2010 NARUC PETITION TO INTERVENE 9 (Page 57 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 33 of 89 Exhibit 2 (Page 58 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 34 of 89 Statement by David A. Wright Commissioner South Carolina Public Service Commission

& Chairman Yucca Mountain Task Force We are announcing today the formation of The Yucca Mountain Task Force. The Task Force is a joint bipartisan national grassroots initiative of the Nuclear Waste Strategy Coalition, U.S.

Transport Council, Nuclear Energy Institute, Prairie Island Community Council, Decommissioning Plant Coalition and other organizations that collectively represent state regulatory authorities, U.S. nuclear utilities and hundreds of businesses with principal operations throughout the United States.

The overriding objective of the Task Force is to accomplish the construction and operation of a safe Federal facility for spent nuclear fuel and high-level radioactive waste at Yucca Mountain, Nevada, within the shortest time frame possible-- consistent with public health and safety.

Our principal goals are to galvanize national grassroots support for:

1. Obtaining a comprehensive funding solution for Yucca Mountain licensing and development that ensures both necessary funding and full appropriation of the more than $750M collected annually from nuclear energy consumers.

2. Facilitating timely development of a final Yucca Mountain radiation standard either administratively or legislatively.

3. Encouraging the DOE to submit a high-quality licensing application to the Nuclear Regulatory Commission in a timely manner.

4. Fostering and encouraging exemplary standards of quality assurance, accountability and integrity in the activities of the Yucca Mountain program.

5. Facilitating a national Yucca Mountain transportation and waste acceptance system.

The key activities of the Task Force will include:

• Re-energizing the national coalition that successfully achieved overwhelming approval in the U.S. House of Representatives and U.S. Senate to proceed with licensing and development of Yucca Mountain consistent with the Nuclear Waste Policy Act, amended.

• Recruiting Task Force Chairs in 41 states whose ratepayers pay into the Nuclear Waste Fund.

• Resolving the longstanding impasse between U.S. House and Senate leaders over fundamental funding and programmatic Yucca Mountain project issues.

• Serving as a national clearinghouse for other like-minded national and state organizations and elected officials.

• Providing a fresh new voice to the critical importance of expeditious implementation of the Yucca Mountain program given vital economic, energy and national security considerations -- as well as the importance of progress on Yucca Mountain to new nuclear energy plant operation.

I am pleased to chair the Task Force, along with Chairman LeRoy Koppendrayer, of the (Page 59 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 35 of 89 Minnesota Public Utilities Commission, and Commissioner Robert Garvin of the Wisconsin Public Utility Commission as our vice-chairmen.

It is clear that there are compelling national security, energy security and economic considerations that strongly warrant expeditious completion of the Yucca Mountain project as mandated by the Nuclear Waste Policy Act. Electric utility consumers have invested billions of dollars to this end.

Time and time again - in 1982, 1987, 1992 and in 2002 - the Congress has overwhelming reafl"Irmed its commitment to a national federal facility for spent fuel and high-level radioactive waste.

I am optimistic about the future of the Yucca Mountain project. I believe there is both the collective will and the leadership at the White House, the Department and Energy and the Congress for the enactment of a comprehensive funding fix, promulgation of a final radiation protection standard and successful implementation oflicensing and development requirements for this Project. I am confident that the National interest is larger than one state's myopic resistance to moving this project forward- and I look forward to bringing this project closer to the goal line in the days and weeks to come.

(Page 60 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 36 of 89 Exhibit 3 (Page 61 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 37 of 89 YMTF Yucca Mountain Task Force 1666 Connecticut Ave., N.W.

Suite 201 Washington, D.C. 20009 Tel: (202) 332-8155 Fax:(202)332-8845 June 10, 2005 The Honorable Joe Barton Chairman House Energy and Commerce Committee U.S. House ofRepresentatives 2125 Rayburn House Office Building Washington, DC 20515

Dear Mr. Chairman:

On behalf of the Yucca Mountain Task Force, we are writing to strongly urge expeditious action by the House Committee on Energy and Commerce to pass legislation to provide a comprehensive funding solution for Yucca Mountain licensing and development that ensures both necessary funding and full appropriation of the more than $750M collected annually from nuclear energy consumers.

The Task Force is a joint initiative of the Nuclear Waste Strategy Coalition, U.S. Transport Council, U.S.

Chamber of Commerce, Prairie Island Community Council, Decommissioning Plant Coalition and other organizations that collectively represent state regulatory authorities, hundreds of businesses, and nuclear utilities in the United States.

While the Yucca Mountain program faces complex challenges, there is no more compelling need for the program than long overdue action to provide a fundamental "funding fix" for the program. Chronic under-funding of Executive Branch requests, which characterized the program until recently, have led to more than a billion dollars in under-fpnding for the program, unnecessarily protracting key licensing and infrastructure development activities. With the program facing significant funding demands in the near future for licensing and construction activities, failure to provide for full appropriation of the more than $750M collected annually for the Nuclear Waste Fund from nuclear energy consumers, as well as necessary funding from the Defense Nuclear Waste Fund, the program will continue facing multi-year delays, resulting in continued escalating costs for taxpayers.

These considerations are all the more important in light of the House Energy and Water Appropriations report passed by the House on May 24, which directs the Secretary to begin accepting commercial spent fuel for interim storage in fiscal year 2006. While we welcome the focus on the concept of early receipt of spent fuel at a government site given growing national security, energy security and economic considerations, we believe the best candidate for an interim storage or early receipt facility is Yucca Mountain. Clearly this highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface facilities at Yucca Mountain. It also confiitlls the importance of initiatives and investment furthering accelerated transportation and waste acceptance initiatives.

(Page 62 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 38 of 89 As a longtime advocate of a national solution for spent fuel and high-level waste disposition, we know you share and understand the urgent need for program funding reform. We greatly appreciate the Committee's support in the past Congress for H.R. 3971 to reclassify fees paid into the Nuclear Waste Fund as offsetting collections and your continuing focus in the current Congress on the need to address this critical national energy security priority, which is pivotal to any new generation of nuclear energy plants. It is our hope that your committee will mark-up legislation to address comprehensive funding reform for the program and seek full House consideration of this measure prior to the August recess.

We look forward to working with you to address this important initiative to provide funding surety for the Congressionally directed, national repository program in the Yucca Mountain program.

Sincerely, Charles P. Pray David A. Wright Co-Chairman, YMTF Co-Chairman, YMTF State of Main, Nuclear Safety Advisor Commissioner, South Carolina Public Service Committee Cc:

The Honorable Ralph Hall Chairman House Subcommittee on Energy and Power The Honorable David Hobson Chairman House Appropriations Subcommittee on Energy and Water Development (Page 63 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 39 of 89 Exhibit 4 (Page 64 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 40 of 89 YUCCA MOUNTAIN TASK FORCE May 25,2005 Joint Statement by Hon. David Wright Commissioner, South Carolina Public Service Commission and Hon. Charles Pray Nuclear Safety Advisor, State ofMaine & Co-Chairman, Yucca Mountain Task Force Regarding May 12 House Subcommittee on Energy & Water Appropriations action allocating $661 million for the Yucca Mountain program in FY06, including $10 million for transporting of spent fuel to an "interim DOE storage facility" and for development of a recycling (reprocessing) "initiative."

We are encouraged that Chairman Hobson and his Committee have appropriated the full funding for Yucca Mountain requested by the President and shown their continuing confidence in a national solution for spent fuel and high-level waste disposition.

Nonetheless, this funding level -- which is well short of the approximately $770 million collected annually by the federal government from electricity consumers -- also underscores the urgent need for program funding reform, particularly with billion dollar outlays contemplated in the near future.

We also welcome the Committee's focus on the concept of early receipt of spent fuel at a government site given growing national security, energy security and economic considerations. We believe the best candidate for an interim storage or early receipt facility is Yucca Mountain. Clearly, this highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface facilities at Yucca Mountain. It also confirms the importance of initiatives and investment furthering accelerated transportation and waste acceptance readiness.

(Page 65 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 41 of 89 Exhibit 5 (Page 66 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 42 of 89 STATEMENT BY THE HONORABLE DAVID WRIGHT COMMISSIONER SOUTH CAROLINA PUBLIC SERVICE COMMISSION CO-CHAIR, YUCCA MOUNTAIN TASK FORCE The submittal of the Yucca Mountain license application to the Nuclear Regulatory Commission clears a long-awaited, crucial hurdle for the Yucca Mountain project It is certainly a welcome development for South Carolina electricity consumers and their counterparts in over 40 states who have contributed to the Nuclear Waste Fund and the 39 states, including South Carolina, which shoulder the burden of storing spent fuel and high-level waste indefinitely.

By any measure, the LA represents a significant milestone for energy self-reliance, economic competitiveness and environmental progress, as well as national security, given the importance of nuclear energy to the United States and the need to address both our ongoing Nuclear Navy requirements and the Cold War legacy.

This is a classic case of the tortoise prevailing over the hare - and three decades of sound science and common sense outlasting politics and rhetoric.

Regardless of whether you favor continued on-site interim storage, central storage or recycling, the fact is that all roads eventually lead to the need for a national repository like Yucca Mountain if we're going to continue to operate current plants and build a new generation of nuclear energy plants.

Given the significance of the LA submittal - and the progress that it represents - we hope the Congress will work to ensure full funding for the programs FY09 request and take action to enact long overdue and needed appropriations reform to facilitate DOEs licensing defense and development of long-lead, non-license-related infrastructure such as the Nevada rail line.

Energy Secretary Bodman, OCRWM Director Ward Sproat and his team is to be commended for setting a schedule and meeting it while surmounting extraordinarily difficult political, fiscal and legal roadblocks.

June 4, 2008 (Page 67 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 43 of 89 Exhibit 6 (Page 68 of Total)

FAX NO. 910 295 0344 Dec. 06 2005 06:34PM P1 FROM JIMUSCA& MARTEZ CaseNORRIS#18-1232 Document #1755212 Filed: 10/15/2018 Page 44 of 89 r,.: ~

Jte,.zo llocl<loma, Vice Cludr

• Dlremr of FedoraI Alfaln, DTE Encrw b:&vlol Wrizhl, M""'benldp Commissioner. SC Publlc Se~lce CoanDIWon Robcrr Capslick, F1aaace ~

r Director o1 Coverument Aft.alrs, Yankee Atomlc:ICoiiJiecrlcul a11kee J. T.rry .,..,.on. Commaalcaliollll .  !

Ccuruaissiooer, FL Public Servloe c ..mmlulon i USNRC BEFORE THE December 7, 2005 (7:28am)

U.Si NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY '

i WASmNGTON, D.C. RULEMAKINGS AND

! ADJUDICATIONS STAFF INmEMATTERO F i )

l )

IMPLEMENTATIO N OF A DOSE STAND~RD ) RIN 31SO..AH68 AFTER 10,000 YEARS. I )

REPLY TO COM~NTS OF THE NUCLEAR WASTE STRATEGY COALITION I

ABOUT THE NWSC '

The Nuclear Waste Strategy Coalitioh (NWSC) is an ad hoc group of state utility regulators, state attorneys general, electric utilities and associate ;members representing 46 member organizations in 26 states. The NWS_C was formed in 1993 out of frustratiop at the lack of progress the Department of Energy (DOE) had made m developing a permanent repositocy for:. spent nuclear fuel and high..level radioactive waste, as well as Congress's failure to sufficiently fund. the nuclear waste disposal program (Program). The mission and purpose of the NWSC is to seek on behalf of the rate~ayers of the United States:

1) The removal of commercial spent nuclear fuel from temporary dry cask storage facilities scattered across the nation. i

2) 'fhe authorization of a temporary, ~entralized commercial spent nuclear fuel storage facility.

3) The ~classification of the annual f,imds paid by the nation's ratepayers into the Nuclear Waste Fund (NWF) as offsetting coJiections so that the DOE fulfills its statutory and contractual obligations.

4) The augmentation oftransportatio~ planning andregulations to facilitate transportation systems.

S) The capping of the NWF payment' at the present one-tenth of a cent per kilowatt-hour by the U.S.

Congress.  ;

6) The operation of the permanent repository as soon as feasibly possible.

• I DISCUSSION Yucca Mountain (YM) is probably ~e most scientifically studied piece of real estate in history. The DOE's efforts to evaluate other sites over the years and the process leading to a decision supporting YM, as the desired site has been painstaking. Nine sites:in six states were studied as potential repository sites: Vacherie Dome, LA; Cypress Creek Dome, MS; Rich~n Dome, MS; Yucca Mountain, NV; Deaf Smith County, TX; Swisher County, TX; Davis Canyon, UT; Lavender Canyon. UT; and the Hanford Site, W A. In 1986, DOE chose five sites for further study. Yucca Moun~ was named as the first choice. In 1987, Congress amended the Nuclear j

P.O. Box 5233

• Pinehurst, NC 28374-6718

• Tel: 910.295.6658

• Fax: 910.293.0344 * 'Email: tbenwsc@nc.rr.com

• ! www.thenMc.org (Page 69 of Total)

FROM : J 1M USCA CaseHORR

8. MARTEZ 1S

1. 18-1232 FAX HO.

Document 910 295 0344

1. 1755212 Filed: 10/15/2018 45 of 89 P2 Page06:35PM Dec. 06 2005 NWSC Reply Comments to the N~C l Page Two - December 7, 2005 . .  !

Waste Policy Act of 1982 (NWP A) Jd directed the DOE to focus on Yucca Mountain. In the Energy Policy Act of 1992 (EnP A). Congress rein;forced its intent that YM remain the exclusive focus of the nation's repository program. This Act also directed the U.S. Environmental Protection Agency (EPA) to issue new public health and safety standards for: the protection of the public from releases of radioactive materials stored or disposed of in a repository at the .YM site. The Nuclear Regulatory Commission (NRC) was directed to modify its technical requirements to ~e consistent with the EPA's new standard and the National Academy of Sciences (NAS) findings and recornrnendations. The EPA issued radiation standards in 2001 to protect the public health from hazardous material:for 10,000 years.

I Responding to legal challenges by tile State of Nevada, environmental and public groups, the U.S. Court of Appeals for the D.C. Circuit, ruled ~t the EPAts original standard did not conform to those recommendations made by the NAS as Congress mandated in the EnPA. In July 2004, the Court upheld most of the challenges to the EPA's Part 197 rules, but the Court found that the 10,000-ycar compliance period selected by the EPA Violated Section 801 of the EnPA, becauSe it was not "based upon and consistent with" the 1995 recommendations made by the NAS ih its report, "Technical Bases for Yucca Mountain Standards. " The NAS recommended that compliance with ~c standard be measured at the peak risk, "within the limits imposed by the long-term stability of the geologic enwonm.ent, which is on the order of one miiJion years." The Academy also noted, calculations for YM show that "peak risks might occur tens-to-hundreds-of-thousands of years or even farther into the future." Consequently, on August 9, 2005, the EPA proposed a draft rule, 40 CFR Part 197, to amend it's public health and envirorubental radiation protection standard for YM, Nevada, extending protection to one million-years for the permanept repository at YM. Under the new one million years standard people living close to the facility would not feceive total radiation higher than natural levels people live with routinely in other areas of the country. 1 I

Fnr the first 10,000 year~.. the pmpn,~;efi Jttandard:

Retain the original IS millirem o~ radiation exposure per year individual protection standard.

I

• Ensure that people living near YM are protected to the same level as those living near the-Waste Isolation Pilot Project, New Mexico, curre~tly the only facility that stores materials that are toxic forever.

I Retains the 4-millirem ground wa;ter protection standard to be consistent with the Agency's national policy.

I From 10,000 years up to one million *ears, the.proposed standard:

I Set the indiVidual protection stanCjlard at a dose limit of350 millirems per year.

• Limit the maximum radiation from the permanent facility so that people living close to YM for a lifetime during the one million year time frame will not receive total radiation any higher than natural levels people currently receive in other areas of the country.

\

The r~vision of~~ EPA radiation stap.dard for the permanent repository requires the DOE to conduct analyses covermg one million years to assess;the potential effects of natural processes or disruptive events that could affect the YM operations. Some of these include:

lI

• Earthquake that could affect the facility tunnels and breakdown of the waste containers.

• Vol~c activity that could affept the waste containers directly or cause releases of radionuclides to the env.tronment. .

(Page 70 of Total)

FROM : JIM & MARTEZ USCA Case NORRIS

1. 18-1232 Document FAX #1755212 NO. 910 295 0344 Filed: 10/15/2018 Dec. 06 Page 46 of 89 P3 2005 06:35PM

. I NWSC Reply Comments to the NRC l Page Three -December 7, 2005 Climate change that could cause iPcreased water flow through the facility.

Corrosion process that could caus~ breakdown of the waste containers.

IMPACTOFFU RTHERDELAY i Based on a site-suitability criteria sp~cific to YM. in a final environmental impact statement, the Secretary of Energy concluded that the YM facilitf is, "likely to meet appl_ica~on radiation ~rotection standards." Based on these findings, the Secretary recommended the Yucca Mountam s1te to the Pres1dent for the development of the nation's deep geological repository. 6n February 15, 2002, President Bush made a reCommendation to the U.S.

Congress to develop the Yucca Mo~tain site as the nation's geologic repositoi)' for high-level radioactive waste and spent nuclear fuel. In July 2002, Congress overwhelmingly passed a joint Resolution that overrode the State ofNevada's objections and *pproved the YM site.

. I The YM permanent repository has s"4-ccessfully met numerous challenges in the Courts by the State of Nevada and environmental groups to delay ~e Program. These delays are annually costing the nation's ratepayers tens of millions of dollars in their electridbill. Since 1983, the nation's electric consumers have paid more than $25 bilUon, including interest, into the N]NF, that now contains an unused balance ofrnore than $17 billion for the DOE to license, construct, operate a~d monitor a repository for spent nuclear fuel and high-level nuclear waste from commercial nuclear power pl~ts across the nation. The nation's ratepayers pay annually $750 million into the NWF and only a portion of the annual funding is allocated to the Program. A DOE contractor has estimated that continued delays wouM escalate costs by approximately $1 billion per year for the civilian and defen.se nuclear waste disposal proFJrams. Consequently, the prompt establishment of a reasonable and safe radiation protection standard is extremely important to members of the NWSC.

CONCLUSION As the EPA stated in its July propo~ed ruling, it is difficult to accurately predict what conditions will be like beyond 10,000 years. The geologi~ structure of YM, as the DOE studies have shown, provides more than adequate protection for storage of sp~nt nuclear fuel and high-level radioactive waste. We believe more than 20 years of in-depth scientific research ~as covered every facet of Yucca Mountain. from hydrology to geology to seismology. The one million-year EPA proposed rule is unprecedented since other hazardous disposal facilities such as the Waste Isolation Pilot Project and other sites, are regulated to a lO,OOO.;year radiation standard.

The NWSC believes the revised EPi radiation standard has adequately met the Court's ruling and protects the public health and safety. Therefore, iwe encourage the Nuclear Regulatory Commission to expeditiously amend its rule to 10 CFR Part 63 to coinc~de with the EPA's proposed radiation standard for doses that could occur after the 10,000 years but within the period of geologic stability.

LeRoy Koppcndrayer, Chainnan, Minnesota Public Utilities Commission, and Chairman, Nuclear Waste Strategy Coalition December 7, 2005 f (Page 71 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 47 of 89 Exhibit 7 (Page 72 of Total)

USCA Case #18-1232 *Document #1755212 Filed: 10/15/2018 Page 48 of 89

,lhecutl\-e Comaurtn Ollken O.nd Wn&ht. nwrman

(.ommWJoner, SC Pubbc Stn1ce f'omm1111011 Henze Hoeksema, Va l."h11rman Dll'n:lar of llcdtnl Afl'an... DTI. Eneru l.voy Kopptlldn)'er, Member*p Cha1nnan, \f'i' PubliC 1'bllhn l OIDIDIDIOR Roblorr Capshck. fmaDCe-Du'fCtot of Covt'rdment Afl'a1n, \o an- A.IOmiCIC'ORDtCIICIII \'aalrft h.atnaa Me\'lurnan. CHI*IIIIICIIIHml

(.omm..*oner, FL Public Mna:e Comm11110n Apnl 16, 2008

\

The Secretary \ (Jllloe£~~

Surtilce Transportation Board 395 E Street, S W Washmgton, DC. 20423-0001

"'R ~ .la 100~

Re Fmance Docket No 35106 ~

\

Dear Madam or S1r

\

The members of the Nuclear Waste Strategy Coaht1on (NWSC) thank the Surface Transportation Board (Board) for the opportumty to prov1de comments on the above referenced docket regardmg the Department of Energy's (DOE) apphcauon for a Certificate of Pubhc Convemence and Ncccss1ty to construct and operate approxunately 300 m1les of new ratl hne connectmg existing rail line near Caliente, Nevada, to a proposed geologic repository at Yucca Mountain, Nevada The NWSC believes the extens1vc documentation and analyses that DOE provtded m tis application will allow the Board to conduct a thorough rcv1ew and make a tnnely deciSIOn, and we encourage the Board to grant DOE the Certificate ofPubhc Convemcnce and Necesstty In October 2007, the DOE, wtth the Board as a cooperatmg agency, prepared the Draft Supplemental Envmmmentallmpacl Statement for a Geologrc Repo.wory.for the Drsposal of Spent Nuclear Fuel and Hrgh Level Radroac11ve Waste at Yucca Mountam, Nye County, Nevada - Nevada Rarl Transportatwn Comdor, DOEIEIS-0250F-S2D ("Draft Nevada Ratl Comdor SEIS"') and Draft Envrronmentallmpact Statement for a Rarl Alignment fur the Construct ron and Opera/ron of a Ra1lroad m Nevada to a Geologrc Repasrtory at Yucca Moun/am, Nye County. Nevada, DOEIEIS-0369D (Draft Ratl Ahgnment EIS") Thts two-part document assess1.-d the environmental tmpacts of the proposed nul lme m accordance wtth DOE's obligations under the National Environmental Pohcy Act regardmg the transportation of spent nuclear fuel (SNF) and htgh-lcvcl radtoactive waste (HLRW) m Nevada 'lbe DOE also analyzed a number of opt1ons conccmmg the transport of SNF and HLRW to the proposed reposttory at Yucca Mountam, one ofwh1ch IS the Shared-Used Option that allows commcrctal sh1ppers the use of the rail hne to shtp general frctght P 0. Bo* 5233

• Pmebunt, NC 28374

• Tel: 918.295.6658

• F.. 910 295 0344

• Em11l thenwsc@nc rr com www.thenwsc.org (Page 73 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 49 of 89 NWSC Letter to the Surface Transportation Board Page Two - Apnl 16, 2008 The NWSC does not object to the Shared-Use Opt1on, smce commercial l'llllcars would be hauled With trams that are separate from trams carrymg SNF and HLRW, but could be hauled With trams carrymg other repos1tory-related matenals such as constructiOn materials, water and fuel Based on a study of potenual commercial users, DOE cstunates that approximately e1ght one-way commerc1al trams could run per week along the Cal1ente 1'1111 ahgnment. Further, trams carrymg SNF and HLRW would have pnonty over trams carrymg commercJal matenal dunng the operations phase. A Shared-Use Opt10n could also prov1de economic benefits to the commumty and surroundmg area. Other countnes such as France successfully use the shared-use system' without any incidents DOE also considered several suggestions to new alternative segments, added some alternative segments and adjusted or ehmmated some alternative segments to the proposed ra1l line due to comments receiVed dunng Its scopmg penod between Apnl and June 2004. Some commcnters expressed concern over the environment, land use issues, a1r quality, socioeconomics, health and safety Consequently, extensive analyses were conducted to encompass these issues Some commenters expressed support. while others expressed oppositiOn, for pubhc or commercJal usc of the proposed ralllme DOE therefore analyzed a Shared-Use Opt1on Vanous commenters suggested best management practices and m1t1gat*on of 1mpacts associated w1th the construction and operation of the railroad on livestock, waterways and washes, and mmmg, for example Consequently. DOE developed a senes of m*t*gauon measures to avmd, mm1m1ze, rectify, reduce and/or compensate for potential impacts. such as hmltlng fencmg on public lands to those areas where grazmg permittees m1ght reque~t It for hvestock safety, temporary p1pehnes, local mmmg and other aspects dunng the construction penod. The DOE analyses further mdicated that there would be no disproportionately h1gh and adverse human health or environmental impacts to minonty or low-mcome populations from ra1lroad constructiOn and operations along the Cahente rail alignment The Oral\ Ra1l Ahgnment EIS also took mto consideratiOn other scenanos such as Impacts to the environment m case of acc1dents rangmg from small to large m scale, land use and ownersh1p, a1r quahty and chmate, groundwater resources, socJoeconomJcs m relation to population, housmg, employment and mcome, and sabotage m case of tcrronst attacks.

Inc Department has an exemplary safety record m the sh1ppmg of commercial and naval nuclear fuel, and It has proven that It can safely transport SNF and HLRW from DOE research facll1t1es and nuclear plant sites across the nat1on For instance, more than 3,000 sh1pments of SNF from nuclear power plants. government research facilities, universities and industnal facilities have crossed the Umted 1

States, "Without a smglc death or mjury due to the rad10act1ve nature of the cargo " Shipments mcludc 719 contamers from the Naval Nuclear PropulsiOn program between 1957 and 1999, and 2,426 h1ghway shipments and 301 l'llllway sh1pments from the US nuclear industry between 1964 and 1997 Smce 1996, sh1~ments ofSNF have been safely transported to the United States from 41 countnes to the DOE facJhtJes; agam, w1thout a smgle death or injury. Furthermore, the DOE has safely and successfully rcce1ved 6,432 transuran1c waste sh1pments at the Waste Isolation P1lot Plant m New Mexico as of Apnl 14,2008 3 (Page 74 of Total)

'\

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 50 of 89

' NWSC Letter to the Surface Transportation Board Page Three - Apnl 16, 2008 Takmg mto account DOE's transportatiOn safety record and Its extensive analyses and cons1deratmn of safety factors dunng the studies of the proposed Cahente railroad, the NWSC encourages the Board to grant DOE the Certificate of Public Convenience and Necessity The NWSC IS compnsed of state regulators, state attorneys general, nuclear electric utiht1es and assoc1atc members working together to hold the Federal government accountable for ns statutory and contractual obhgatlon to move spent nuclear fuel and high-level rad1o radioactive waste from active and decomm1ss1oned nuclear power plants across the nation to a permanent repository. The NWSC has part1c1pants from 46 orgamzatlons m 26 states.

Respectfully submitted,

• _-~~D-U-ibl Dav1d Wnght CommiSSIOner, South Carohna Public Serv1ce Comm1ss1on, and Cha1rman, Nuclear Waste Strategy Coaht1on C Mr Ward Sproat, D1rcctor, DOEIOCRWM Mr Gary Lanthrum, D1rector, DOE/Office ofLog1st1cs Management Bradley Lcvme, Esq., Ass1stant General Counsel for Civilian Nuclear Program, DOE 1National ConfL'I'ence of State Lcg1slatures' Report, January 2000

' U S Department of Energy Report to the Committees on Appropr1at1ons, January 200 I

' U S OOE/Wa~te Isolation Pilot Plant Sh1pment F1gures, March 2007 (Page 75 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 51 of 89 Exhibit 8 (Page 76 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 52 of 89 BUDGET IMPLICATIONS OF CLOSING YUCCA MOUNTAIN HEARING BEFORE THE COMMITTEE ON THE BUDGET HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION HEARING HELD IN WASHINGTON, DC, JULY 27, 2010 Serial No. 111-30 Printed for the use of the Committee on the Budget

(

Available on the Internet:

http://www.gpoaccess.gov/congress/house/budget/index.html U.S. GOVERNMENT PRINTING OFFICE 57-736 PDF WASHINGTON  : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 (Page 77 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 53 of 89 COMMITTEE ON THE BUDGET JOHN M. SPRATT, JR., South Carolina, Chairman ALLYSON Y. SCHWARTZ, Pennsylvania PAUL RYAN, Wisconsin, MARCY KAPTUR, Ohio Ranking Minority Member XAVIER BECERRA, California JEB HENSARLING, Texas LLOYD DOGGETT, Texas SCOTT GARRETT, New Jersey EARL BLUMENAUER, Oregon MARIO DIAZ-BALART, Florida MARION BERRY, Arkansas MICHAEL K. SIMPSON, Idaho ALLEN BOYD, Florida PATRICK T. MCHENRY, North Carolina JAMES P. MCGOVERN, Massachusetts CONNIE MACK, Florida NIKI TSONGAS, Massachusetts JOHN CAMPBELL, California BOB ETHERIDGE, North Carolina JIM JORDAN, Ohio BETTY MCCOLLUM, Minnesota CYNTHIA M. LUMMIS, Wyoming JOHN A. YARMUTH, Kentucky STEVE AUSTRIA, Ohio ROBERT E. ANDREWS, New Jersey ROBERT B. ADERHOLT, Alabama ROSA L. DELAURO, Connecticut, DEVIN NUNES, California CHET EDWARDS, Texas GREGG HARPER, Mississippi ROBERT C. BOBBY SCOTT, Virginia CHARLES K. DJOU, Hawaii JAMES R. LANGEVIN, Rhode Island RICK LARSEN, Washington TIMOTHY H. BISHOP, New York GWEN MOORE, Wisconsin GERALD E. CONNOLLY, Virginia KURT SCHRADER, Oregon DENNIS MOORE, Kansas PROFESSIONAL STAFF THOMAS S. KAHN, Staff Director and Chief Counsel AUSTIN SMYTHE, Minority Staff Director (II)

(Page 78 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 54 of 89 CONTENTS Page Hearing held in Washington, DC, July 27, 2010 .................................................. 1 Hon. John M. Spratt, Jr., Chairman, Committee on the Budget ................. 1 Prepared statement of ............................................................................... 6 Additional submission:

Kim Cawley, Chief, Natural and Physical Resources, Cost Esti-mates Unit, Congressional Budget Office, prepared statement of ...................................................................................................... 3 Hon. Paul Ryan, Ranking Minority Member, Committee on the Budget .... 7 Dr. Kristina M. Johnson, Under Secretary of Energy, U.S. Department of Energy ....................................................................................................... 8 Prepared statement of ............................................................................... 9 Michael F. Hertz, Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice .......................................................................... 11 Prepared statement of ............................................................................... 13 Hon. Rick Larsen, a Representative in Congress from the State of Wash-ington, submission for the record:

Congressional letter dated July 6, 2010, to Hon. Steven Chu, Sec-retary, U.S. Department of Energy ...................................................... 33 David Wright, South Carolina Public Service Commissioner ....................... 43 Prepared statement of ............................................................................... 46 Hon. Gerald E. Connolly, a Representative in Congress from the State of Virginia, prepared statement of .............................................................. 53 (III)

(Page 79 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 55 of 89 42 Ms. JOHNSON. Stepping back again, you know, I understand what you are saying about, well, forty years from now we have a different view of what is going on. You know, let me see if I can put it in the way that there has been extraordinary progress over the last thirty years with regard to computation. With regard to our knowledge about the basic materials, and with regard to trans-uranic waste, high level waste, low level waste. And I think given that right now, when we are considering restarting, and we are re-starting, and this administration has signaled its strong interest in restarting the civilian nuclear energy program, that it gives us a chance to take a year and six months from now to step back and say, Let us find a better solution with broad support.

Mr. SIMPSON. That will end up in a geological repository?

Ms. JOHNSON. Again, I do not want to preclude what the Blue Ribbon Commission might recommend.

Mr. SIMPSON. Well, if they can find something else, that would be wonderful. But nobody believes they will, and nobody believes that is possible. That ultimately there is going to be a pile of gunk that has to go somewhere.

Chairman SPRATT. Mr. Scott has a further question.

Mr. SCOTT. Just to follow up on the time table for the Blue Rib-bon Commission, you said in a year to year and a half you would get a recommendation. And then I guess at that point we will, they are not a siting committee, so at that point we will start looking for a site? As the gentleman from Idaho just mentioned. It has taken us, what, twenty or thirty years to get to this point with Yucca Mountain. Once we start, why would we not expect it to take twenty or thirty years with whatever site is picked, fighting tooth and nail against it, delaying, and doing everything they can, filing suit? Why should we think it would not take another thirty years to get to where we are now?

Ms. JOHNSON. Right. Thank you very much for the question. In the charter 3-E, the Blue Ribbon Commission is being asked to rec-ommend not only methods and ways to manage the back end of the fuel cycle but also for options for decision making processes and management of disposal. So, there is also a process they will be recommending as well as recommendations for how to manage the back end of the fuel cycle. And I have full confidence in the Blue Ribbon Commission to recommend processes and procedures that can be accomplished in a reasonable period of time.

Mr. SCOTT. Thank you.

Chairman SPRATT. Thank you. And to our panel, Dr. Johnson, Mr. Harris, Mr. Hertz, thank you very much for your patience, your forbearance, and for your forthright answers to our questions.

We appreciate your coming here to participate in this hearing.

Ms. JOHNSON. Thank you.

Chairman SPRATT. Thank you very much indeed.

Mr. HERTZ. Thank you, Mr. Chairman.

Chairman SPRATT. Our next witness is Mr. David A. Wright, who is the Vice Chairman of the Public Service Commission of South Carolina. Mr. Wright, welcome indeed. Thank you very much for your participation in this hearing. As you may have noted, we have made your statement and the other statements part of the record so that you can summarize them as you see fit. But you may also (Page 80 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 56 of 89 43 take your time and review thoroughly what you have presented for us. And we very much appreciate your coming. The floor is yours.

STATEMENT OF DAVID A. WRIGHT, VICE CHAIRMAN, PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA Mr. WRIGHT. Good morning, Mr. Chairman. I guess it is still morning. And members of the Committee, my name is David Wright, and I am Vice Chairman of the South Carolina Public Service Commission. In addition to that, I am past Chairman and current member of the Subcommittee on Nuclear Issues and Waste Disposal, and a member of the Full Electricity Committee of the National Association of Regulatory Utility Commissioners. And I also serve as Chairman of the Nuclear Waste Strategy Coalition.

The issues that you are addressing today are very important to South Carolina and any state that is home to commercial spent nu-clear fuel or the nations defense waste. I am grateful to have this opportunity to represent and share our views concerning the dis-position of spent nuclear fuel, currently stored at nuclear power plant sites that is intended for ultimate disposal at the Yucca Mountain Geological Repository.

By way of the Nuclear Waste Policy Act of 1982, the federal gov-ernment became responsible for disposal of high level radioactive waste, including spent or used nuclear fuel from commercial reac-tors. Utilities, ratepayers, and regulators had the expectation from the NWPA that the Department of Energy would begin initial waste acceptance and disposal in the properly licensed and con-structed repository by January 31, 1998. Utility ratepayers have paid and continue to pay for the disposal cost of the material. To date, ratepayers in states that receive power from commercial nu-clear utilities have paid over $17 billion into the Nuclear Waste Fund. Including allocated interest, the Nuclear Waste Fund today totals almost $35 billion, but only a fraction of the money collected from ratepayers has actually been spent on the developing of the Yucca Mountain repository. The ratepayers in South Carolina, Mr.

Chairman, have paid nearly $1.3 billion into the Nuclear Waste Fund, or more than $2.3 billion when interest is included.

State public utility commissions, like mine, are one of the stake-holders on the disposition of used nuclear fuel from commercial re-actors because the fees paid to the Nuclear Waste Fund by the cur-rent caretakers of the used fuel, that would be electric utilities, are passed onto ratepayers who are supplied with electricity from nu-clear power generation.

When the Director of the Office of Civilian Radioactive Waste Management within the Department of Energy submitted the Yucca Mountain repository license application in June of 2008, it was a comprehensive document. The eight thousand page docu-ment was the culmination of over twenty-five years of exhaustive investigation of the site. Like others, I expected the NRC to con-duct a rigorous review and conduct an open, fair, and inclusive ad-judicatory process. The filing of the license application was an im-portant step, because it appeared to take the application out of the political arena and put it under a full blown court review that would be based on science, not politics.

(Page 81 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 57 of 89 44 Since 1998, when DOE failed to meet its obligation to begin waste acceptance for disposal, organizations that I and my state are a part of have simply asked that the government fulfill its part of the bargain and remove the spent fuel per the standard contract, since the utilities and ratepayers continue to pay for services not performed. That remains our position, as we believe that the li-cense application shows that Yucca Mountain will meet the re-quirements of the NWPA and regulations. If Yucca Mountain can-not be licensed through the NRC process, or is licensed but not built, we interpret NWPA as still requiring DOE to develop and dispose of spent nuclear fuel in a geologic repository. Therefore, un-less the law is repealed or amended to direct otherwise, Congress is the only body that can authorize DOE to conduct a site search for another suitable repository site.

This is particularly costly, and most locations where the fuel pool cooling storage capacity at the reactor sites has long since been filled. In addition, the older fuel in the spent fuel pools is being re-moved and placed in concrete and steel containers called dry cask that are stored outside in concrete vaults. More than 62,000 metric tons of uranium is currently stored in pools or dry cask storage at nuclear plant sites in the United States. This amount increases with each refueling cycle, which generally occurs about every eight-een months. License applications for at least twenty-four new nu-clear units have been submitted to the Nuclear Regulatory Com-mission. The amount of spent nuclear fuel to be stored will increase as new units are constructed and old units are relicensed, usually for an additional twenty years, as is happening with numerous re-actors.

Nearly 3,800 metric tons of uranium is stored at four nuclear plant sites in South Carolina, Mr. Chairman, which are home to seven reactors as you know. Two nuclear units at the V.C. Summer Nuclear Station in Jenkinsville, South Carolina, have been ap-proved by the South Carolina Public Service Commission and are awaiting license approval by the NRC. License applications for an-other two units near Gaffney, South Carolina, have been submitted to the NRC but not to the South Carolina Public Service Commis-sion.

This nation will need more base load electric generation as the population grows and the economy recovers. Some areas, such as the Southeast in general, and South Carolina in particular, need for base load generation is needed in the near future. Renewable energy, conservation, and efficiency help to lessen the amount of base load generation needed but cannot entirely eliminate that need. The climate and health impacts of burning coal have forced utilities to depend upon gas fired and nuclear plants to meet the need for new base load generation. Without a solution to the stor-age of spent nuclear fuel, meaning a permanent repository, state regulators may be hesitant to approve the construction of new nu-clear units, and utilities may be hesitant to construct new nuclear units, even if the NRC approves the license applications. Such cir-cumstances could result in reduced electric reliability, brown outs, and increased costs of electricity as gas fired generation would be the only option, and its price would increase as the demand for nat-ural gas increases, all else being equal.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 58 of 89 45 Federal courts have already ruled that the federal government is liable for the added storage costs past the dates agreed in original contracts with spent fuel utilities. The Department of Energy al-ready faces at least $1.5 billion in court judgments and legal ex-penses resulting from failure to meet the governments obligations.

In 2009, when DOE had a plan to begin waste acceptance and dis-posal at Yucca Mountain by 2017, DOE officials estimated that the liability for sixty-five cases could reach $12.3 billion, growing fur-ther by at least $500 million for each additional year of delay. DOE pays these court determined liabilities from the Judgment Fund.

What is really happening is this: because of the federal govern-ments failure to construct a permanent repository, ratepayers are paying up to four times for ongoing spent fuel storage and future disposal. And that does not include decommissioning funds. First ratepayers are paying into the Nuclear Waste Fund for storage at the deep geologic repository at Yucca Mountain. Second, because of the initial delay, ratepayers have to pay through rates to expand and rerack their existing cooling pools in order to accommodate more waste. Third, ratepayers are continuing to pay through rates to keep the waste stored at the existing plant sites in dry cask stor-age. And finally, all taxpayers, not just ratepayers, are paying through taxes for judgments and settlements through the Judg-ment Fund.

Congress should suspend collection of the nuclear waste fees until further notice and refund the Nuclear Waste Fund money to ratepayers if Yucca is not built. Not counting defense waste, over 62,000 metric tons of spent fuel is stored in seventy-two operating and shut down reactor sites in thirty-four states. Individuals and organizations opposed to nuclear power will raise questions or even voice fears over safety and security at some of these storage facili-ties. Although the utilities and NRC contend that storage is safe and secure, it still costs ratepayers big money to implement indi-vidualized security programs for each of these locations around the country. How can this be more efficient, safe, secure, or cost effec-tive than having all spent nuclear fuel and defense waste at one secure deep geologic location?

Recently, there has been great interest in reprocessing, or recy-cling as some call it, of spent nuclear fuel. The organizations that I am a member of, including NARUC, have supported research into reprocessing and recycling and share the views that, if there will be substantial global nuclear power expansion, there will probably become a time when uranium becomes more scarce and expensive, and closing the fuel cycle will become necessary. But no matter the future course of this country, whether we reprocess, or recycle, or maintain the status quo, a geologic repository is still needed for de-fense related, high level radioactive waste that has already been reprocessed, or cannot be reprocessed, and the residue from any fu-ture reprocessing program.

Finally, the states of Idaho and South Carolina, and maybe Washington as was mentioned a while ago, all have agreements with the federal government with a date certain to move defense waste out of their respective states. There are penalties, they are substantial, for the governments failure to comply. And that is just (Page 83 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 59 of 89 46 another way that the taxpayer, all taxpayers not just ratepayers, are going to pay for the governments failure.

Thank you for the time today, and I appreciate being here. And I will answer any questions that you may have.

[The prepared statement of David A. Wright follows:]

PREPARED STATEMENT OF DAVID WRIGHT, SOUTH CAROLINA PUBLIC SERVICE COMMISSIONER Good Morning, Mr. Chairman and Members of the Committee.

My name is David Wright and I am a legislatively elected commissioner and cur-rent Vice-Chairman of the South Carolina Public Service Commission. In addition to that, I am the past Chairman and current member of the Subcommittee on Nu-clear Issues and Waste Disposal, and a member of the full Electricity Committee of the National Association of Regulatory Utility Commissioners, most often referred to as NARUC. I also serve as Chairman of the Nuclear Waste Strategy Coalition (NWSC).

The issues that you are addressing in this hearing are very important to South Carolina and any other state that is the home to commercial spent nuclear fuel, or the nations defense waste. I am grateful to have this opportunity to represent and share our views concerning the disposition of spent nuclear fuel currently stored at nuclear power plant sites that is intended for ultimate disposal at the Yucca Moun-tain geologic repository.

I believe its important to know how we got to where we are today, because it has led to the positions the organizations I represent currently hold.

By way of the Nuclear Waste Policy Act of 1982 (NWPA), the federal government became responsible for disposal of high-level radioactive wasteincluding spent or used nuclear fuel from commercial reactors. Utilities, ratepayers and regulators had the expectation from the NWPA that the Department of Energy (DOE) would begin initial waste acceptance and disposal in the properly licensed and constructed repos-itory by January 31, 1998, as the law and contracts signed with owners of spent fuel required.

Utility ratepayers have paid, and continue to pay, for the disposal costs of the ma-terial. To date, ratepayers in states that receive power from commercial nuclear util-ities have paid over $17 billion dollars into the Nuclear Waste Fund (NWF). Includ-ing allocated interest, the NWF today totals almost $35 billion, but only a fraction of the money collected from ratepayers has actually been spent on developing the Yucca Mountain repository. The ratepayers in South Carolina have paid nearly $1.3 billion into the NWF, or more than $2.3 billion when interest is included.

State public utilities commissions, like mine, are one of the stakeholders on the disposition of used nuclear fuel from commercial reactors because the fees paid to the Nuclear Waste Fund by the current caretakers of the used fuel, the electric utili-ties, are passed on to the ratepayers who are supplied with electricity from nuclear power generation.

When the Director of the Office of Civilian Radioactive Waste Management (OCRWM) within the Department of Energy (DOE) submitted the Yucca Mountain repository license application (LA) in June 2008 it was a comprehensive document.

The 8,000-page document was the culmination of over 25 years of exhaustive inves-tigation of the site.

Like others, I expected the NRC to conduct a rigorous review and conduct an open, fair and inclusive adjudicatory process. The filing of the license application was an important step, because it appeared to take the application out of the polit-ical arena and put it under a full-blown court review that would be based on science, not politics.

Since 1998, when DOE failed to meet its statutory and contractual obligation to begin waste acceptance for disposal, organizations that I and my state are a part of have simply asked that the government fulfill its part of the NWPA disposal bar-gain and remove the spent fuel per the Standard Contract since the utilities and ratepayers continue to pay for services not performed. That remains our position, as we believe that the license application shows that Yucca Mountain will meet the requirements of the NWPA and regulations.

If Yucca Mountain cannot be licensed through the NRC process, or is licensed but not built, we interpret NWPA as still requiring DOE to develop and dispose of spent nuclear fuel in a geologic repository. Therefore, unless the law is repealed or amend-ed to direct otherwise, Congress is the only body that can authorize DOE to conduct a site search for another suitable repository site.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 60 of 89 47 This is particularly costly in most locations where the fuel pool cooling storage capacity at the reactor sites has long since been filled. In addition, the older fuel in the spent fuel pools is being removed and placed in concrete and steel con-tainerscalled dry casksthat are stored outside in concrete vaults.

More than 62,000 metric tons of uranium is currently stored in pools or dry cask storage at nuclear plant sites in the United States. This amount increases with each refueling cycle, which generally occurs about every 18 months. License applications for at least 24 new nuclear units have been submitted to the Nuclear Regulatory Commission (NRC). The amount of spent nuclear fuel to be stored will increase as new units are constructed and old units are re-licensed, usually for an additional 20 years, as is happening with numerous reactors.

Nearly 3,800 metric tons of Uranium is stored at four nuclear plant sites in South Carolina, which are home to seven reactors. Two new nuclear units at the VC Sum-mer Nuclear Station in Jenkinsville, SC have been approved by the South Carolina Public Service Commission and are awaiting license approval by the NRC. License applications for another two nuclear units near Gaffney, SC have been submitted to the NRC, but not to the South Carolina Public Service Commission.

This nation will need more base load electric generation as the population grows and the economy recovers. Some areas, such as the southeast in general and South Carolina in particular, need more base load generation in the near future. Renew-able energy, conservation, and efficiency help to lessen the amount of base load gen-eration needed, but cannot entirely eliminate that need. The climate and health im-pacts of burning coal have forced utilities to depend upon gas-fired and nuclear plants to meet the need for new base load generation. Without a solution to the stor-age of spent nuclear fuel, meaning a permanent repository, state regulators may be hesitant to approve the construction of new nuclear units and utilities may be hesi-tant to construct new nuclear units even if the NRC approves the license applica-tions. Such circumstances could result in reduced electric reliability, brown outs, and increased cost of electricity as gas-fired generation would be the only option and its price would increase as the demand for natural gas increases, all else being equal.

Federal courts have already ruled that the federal government is liable for the added storage costs past the dates agreed in original contracts with spent fuel utili-ties. The Department of Energy already faces at least $1.5 billion in court judg-ments and legal expenses resulting from failure to meet the governments obliga-tions. In 2009when DOE had a plan to begin waste acceptance and disposal at Yucca Mountain by 2017DOE officials estimated that the liability for 65 cases could reach $12.3 billion, growing further by at least $500 million for each addi-tional year of delay. DOE pays these court-determined liabilities from the Judgment Fund.

What is really happening is thisBecause of the federal governments failure to construct a permanent repository, ratepayers are paying up to four times for ongo-ing spent fuel storage and future disposaland that does not include decommis-sioning funds. First, ratepayers are paying into the NWF for storage at the deep geologic repository at Yucca Mountain; second, because of the initial delay, rate-payers have to pay through rates to expand and re-rack their existing cooling pools in order to accommodate more waste; third, ratepayers are continuing to pay through rates to keep the waste stored at the existing plant sites in dry cast stor-age; and finally, all taxpayersnot just ratepayersare paying through taxes for judgments and settlements through the Judgment Fund.

Not counting defense waste, over 62 thousand metric tones of spent fuel is stored in 72 operating and shutdown reactor sites in 34 States. Individuals or organiza-tions opposed to nuclear power will raise questions, or even voice fears, over safety and security at some of these storage facilities. Although the utilities and the NRC contend that storage is safe and secure, it still costs ratepayers big money to imple-ment individualized security programs for each of these locations around the coun-try. As the Office of Homeland Security increases security requirements, the cost for security programs at the plant sites will increase.

How can this be more efficient, safe, secure or cost effective than having all spent nuclear fuel and defense waste at one secure, deep, geologic location?

Recently, there has been great interest in the reprocessing, or recycling as some call it, of spent nuclear fuel. The organizations I am a member of, including NARUC, have supported research into reprocessing and recycling and shares the view that, if there will be substantial global nuclear power expansion, there will probably come a time when uranium becomes more scarce and expensive and closing the fuel cycle will become necessary.

No matter the future course of this countrywhether we reprocess, recycle, or maintain the status quoa geologic repository is still going to be needed for de-(Page 85 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 61 of 89 48 fense-related high-level radioactive waste that has already been reprocessed or can-not be reprocessed, and, the residue from any future reprocessing program for com-mercial spent nuclear fuel.

Finally, the states of Idaho and South Carolina, and maybe Washington, as well, have agreements with the federal government with a date certain to move defense waste out of their respective states. There are significant financial penalties to the federal government in the agreements for failure to complywhich is yet another way that all taxpayers, not just ratepayers, will have to pay compensation for the governments failure to build the site at Yucca Mountain.

Thank you for the opportunity to testify before you today. I look forward to your questions. I will also be happy to provide written answers to further questions, should you have any I am unable to answer today or for which you would like me to provide answers at a later date.

Chairman SPRATT. South Carolina has a particular interest in this because we have defense waste generated at the Savannah River Site as well as bomb grade materials that are being brought onto site to be processed into a fuel that can be burned in commer-cial reactors.

Mr. WRIGHT. Yes, sir.

Chairman SPRATT. Are you comfortable with the, would you ex-plain to the Committee the liquidated damages which we have in law in the event that the waste accepted in South Carolina is not timely processed and removed from the site?

Mr. WRIGHT. Are you talking about from Savannah River Site?

Chairman SPRATT. Yes, sir.

Mr. WRIGHT. Well, the South Carolina Commission, Mr. Chair-man, does not regulate or control SRS. So, I am not really, I guess, confident or comfortable answering the question because I do not know exactly how much that would be. But I would be more than happy to go home and get that answer for you, and get that written and submit that.

Chairman SPRATT. If you do that, submit it for the record. Before we agreed to accept the bomb grade material in particular for re-processing into fuel we stipulated with the Department of Energy that if they failed to perform this in a reasonable period of time, and we provided more than what was anticipated, then there would be damages payable to the State of South Carolina for the delay.

Rather than having to prove the actual damages, we would be enti-tled to liquidated damages in a very substantial amount.

Mr. WRIGHT. Yes, sir.

Chairman SPRATT. The purpose being to encourage the Depart-ment of Energy to do what it was telling us it was going to do.

Mr. WRIGHT. Yes, sir. And my understanding, just from the pe-riphery of things where the defense waste in those states are con-cerned, I believe that Idahos date is the closest date. And using that as a model, I know that, I believe they are substantial, almost per day costs.

Chairman SPRATT. Does the State have concerns that the dry cask storage and the alternative expedients that are being consid-ered are adequate from a safety standpoint?

Mr. WRIGHT. Mr. Chairman, it is my understanding and belief, because we are told and nobody really has disputed it in pro-ceedings, that in order to get a license for a nuclear reactor you have got to prove that the fuel can be safely stored on site. But having said that, the deal that was cut with the federal govern-ment, and the utilities, and the ratepayers of this country were, we (Page 86 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 62 of 89 49 are going to charge you one-tenth of a cent per kilowatt hour, and we are going to dispose of your waste in return for that. And it has been twenty-eight years, and that has not happened yet.

Chairman SPRATT. I have a few more questions, but let me turn to the members who are here now and let me give them an oppor-tunity. Mr. Simpson?

Mr. SIMPSON. Thank you, Mr. Chairman. And thank you, Mr.

Wright, for being here. Do not hold me to this, but it seems like Idahos agreement with the federal government, the penalty is like

$60,000 a day.

Mr. WRIGHT. That is the number that comes to mind.

Mr. SIMPSON. And I think we were fairly cheap. I think South Carolina did a lot better job of negotiating. I think they were up-wards of a million bucks a day or something for Mr. WRIGHT. It very well could be. But I would like to research that for the Chairman to be accurate.

Mr. SIMPSON. Yeah. But you mentioned waste confidence. In order to build a new reactor, we have to have waste confidence.

They have to show that there is going to be a path forward to dis-posal of the waste. How are we going to do that? How are we going to license any new reactors, or power plants, nuclear power plants, if we cannot meet that waste confidence rule of where the waste is going to go?

Mr. WRIGHT. Well, I do believe it is going to become issues in proceedings. Because the proceedings that have gone forward so far have been with the understanding that there was going to be a re-pository built. You know, that change has just been a recent an-nouncement, as things go, especially in the Yucca Mountain proc-ess.

Mr. SIMPSON. Yeah. As I understand, it may fall on Congress to have to legislate waste confidence. Which I do not think was the original intent, but that is what they are talking about now.

Mr. WRIGHT. Well, and that is my understanding, that Congress.

I think under any scenario Congress has to take the lead and has to act on this.

Mr. SIMPSON. Right. Should we suspend the taxes being paid by the ratepayers that use nuclear power? The tenth of a cent per kil-owatt hour that they are paying? I was looking at the amounts.

Most people look at that and say, What is a tenth of a cent? I think in New York it was, like, $81 million a year the ratepayers pay there that could stay in their economy. And at least suspend it until we decide where we are headed with this? Because we have got $24 billion, I think it is, sitting in that fund right now.

Mr. WRIGHT. Well, there is, quite honestly, and my personal opinion is I think it ought to be considered and done, yes, sir. But there is litigation that is going forward now where that very issue is concerned. And NARUC is involved in that.

Mr. SIMPSON. Could you tell me in general, what are the, what is the status of the storage pools, the capacity that currently exists at nuclear power plants around the country? Are they getting full, or Mr. WRIGHT. Yes, sir. And I believe, and I have that document I think with me. But the Nuclear Energy Institute does have a doc-ument that I can supply to the Committee that does show the reac-(Page 87 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 63 of 89 50 tors, and who is, whose pools are full and are now in dry cask, and those that are nearing being full and considering dry cask storage.

Mr. SIMPSON. Okay. I thank you for being here. This is a di-lemma that we are going to have to face somehow.

Mr. WRIGHT. Yes, sir.

Mr. SIMPSON. But it is a problem we need to address and solve.

Mr. WRIGHT. Yes, sir.

Mr. SIMPSON. I appreciate it. Thank you.

Chairman SPRATT. Mr. Scott, do you have questions?

Mr. SCOTT. Yes?

Chairman SPRATT. Do you have questions?

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Wright, the federal government has made a motion to withdraw its application for Yucca Mountain. What do public service commissioners outside of Nevada think of that?

Mr. WRIGHT. Well, they are not real happy about it, I can tell you that. I mean, a lot of us, and I can speak specifically to my committee, the Subcommittee on Nuclear Issues and Waste Dis-posal, which is made up of commissioners. And then, you know, not just my committee, but those that have defense waste in the states around the country, or even get power from across state lines. They may not have a reactor but they do pay into the fund. They do not understand the with prejudice thing at all. And one, we feel, com-missioners do feel, especially the ones that have been involved in this issue, feel like there was a knife taken to us. Because we were encouraging working alongside the Department of Energy and pushing forward trying to get a license application submitted so that we could move forward and get the process started, and con-sider the science of Yucca Mountain. If science proves it is not workable, then it is not, and then the Congress can do what they want. But the commissioners, we were supportive of that and we were all working toward encouraging Congress to move forward with funding to make sure the license app could be defended, and then it is like they turned on us.

Mr. SCOTT. Have the commissioners expressed an opinion as to whether or not the federal government has the legal authority to withdraw the application?

Mr. WRIGHT. We do not believe that they do. And I can tell you, you know, in South Carolina we are part of that lawsuit process.

You know, the bottom line is, you know, we have your waste, and you have our money.

Mr. SCOTT. Now, there is a concept of total life cycle costs, when you try to charge for electricity, for example, charge for power, that you want to charge the total life cycle costs, not just the annual lit-tle costs. Because if there is a balloon, like disposal costs at the end, you want to have collected that going through. If you do not know what you are going to do for disposal, how do you set a rea-sonable cost for consumers for their electricity?

Mr. WRIGHT. Well, I mean, one-tenth of a cent is one-tenth of a cent. That is what we are, that is what we are Mr. SCOTT. That is what you Mr. WRIGHT. The utilities are obligated to charge that to the ratepayer.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 64 of 89 51 Mr. SCOTT. And the federal government is obligated to take the disposed waste, so that is your end cost?

Mr. WRIGHT. That is what you would think, yes.

Mr. SCOTT. Okay. Now, if they Mr. WRIGHT. But, but, taxpayers are having to pay, and rate-payers, through the Judgment Fund to settle these suits, too.

Mr. SCOTT. And if they are paying to settle these lawsuits and have this ongoing expense of litigation, is that cost of litigation, is that cost passed on to the ratepayers in South Carolina? I mean, somebody has got to pay the cost of the litigation, if Mr. WRIGHT. Well, and in our State it is the State of South Caro-lina, the City of Aiken, that are involved in the litigation, so rate-payers would not be involved in that. There is not a utility in my state that is suing. Now, they are suing for the Judgment Fund for failure, and there have been settlements, I believe with Duke and with SCE&G. So, there have been settlements out of the Judgment Fund, but that does not come from the Nuclear Waste Fund.

Mr. SCOTT. If we are not going to use Yucca Mountain, if Yucca Mountain is as we heard off the table, when would you expect us to have a site designated, open, and working?

Mr. WRIGHT. Well, it is my position personally, and others too, but I am going to speak for myself right now. The Nuclear Waste Policy Act is pretty clear on that. Congress selected the site and went through a long process, and Yucca was selected at the end.

And that is the law of the land.

Mr. SCOTT. And if we start Mr. WRIGHT. And Congress has to change that.

Mr. SCOTT. If we start from scratch, and start looking all over from scratch, how long do you think it would take to get to where we are now?

Mr. WRIGHT. I would probably, my son would probably have great-grandchildren. I really have no idea.

Mr. SCOTT. Thank you, Mr. Chairman.

Chairman SPRATT. Mr. Etheridge?

Mr. ETHERIDGE. Thank you, Mr. Chairman. Thank you, Commis-sioner Wright, for being here today. I guess just like our southern neighbor, North Carolina taxpayers are, they have invested signifi-cantly in nuclear plants, are in the process of adding to that.

Mr. WRIGHT. Yes, sir.

Mr. ETHERIDGE. Or in the process of trying to do that. And we have been paying, trying to move toward building a more sustain-able energy future, as I said earlier. And we rank, I think, probably fifth, or certainly in the top five, in the money invested in the Nu-clear Waste Fund, somewhere in the neighborhood of, short of $900 million. You stated in your testimony that ratepayers pay four times Mr. WRIGHT. Yes, sir.

Mr. ETHERIDGE [continuing]. For waste Mr. WRIGHT. Not counting decommissioning funds.

Mr. ETHERIDGE [continuing]. Yeah, for waste disposal. I would be interested in you expanding for the record how that affects the av-erage homeowners bill each month, or a business consumer each month.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 65 of 89 52 Mr. WRIGHT. Well, every utility, nuclear utility, has to come be-fore commissioners for a rate proceeding, especially when they are looking at raising rates. Not too many of them will come to reduce rates, but you know, we welcome that when they do. But people are becoming more and more aware about the cost that they are having to pay for, whether it is to store the waste on site, the Nuclear Waste Fund fee, the security for the location where the waste is stored. And so, they see the multiple hits and they are starting to catch onto it, okay? For a long time they did not catch onto it. A lot of times even the staff of members of Congress did not know about it. But they are becoming more educated about it. And so, the more that it is talked about and they see it, I think, and espe-cially in tough economic times. And it is more aggravated now be-cause the cost of commodities, coal, natural gas, all those things that we are looking for, base load needs, are going up. And so at some point, along with taxes. So, at some point the customer and the consumer, ratepayer, taxpayer, they are all at some point a ratepayer and a taxpayer for sure, enough is enough. And they will, you know, it is going to get more difficult.

Mr. ETHERIDGE. So, but what are the four times they pay?

Mr. WRIGHT. The four times they pay?

Mr. ETHERIDGE. Yes.

Mr. WRIGHT. They pay to the Nuclear Waste Fund.

Mr. ETHERIDGE. Right.

Mr. WRIGHT. Okay? The one-tenth of a cent. Then they are pay-ing into the fund, or through rates they are paying to enlarge their cooling pools to rerack, to expand to keep more waste. Then they are taking the waste that has filled the pool, okay? And they have got it, and it has been there for five years or longer. They are tak-ing it out of the pool so they can put other waste in there to cool it. And then they are putting that in dry cask storage, and they are having to pay to store that on site. And then the fourth time that they are paying is, again is not just a ratepayer but a tax-payer, through the Judgment Fund to settle these lawsuits.

Mr. ETHERIDGE. Thank you, Mr. Chairman. I yield back.

Chairman SPRATT. And for all of these additional steps, the re-racking and so forth, is that cost being sought and recovered in the litigation against the Department of Energy?

Mr. WRIGHT. I am not exactly sure how that is all, I heard Mr.

Harris try to explain that. Or maybe it was the gentleman over here, Mr. Hertz, and I was a little bit confused about that. But I do know that when the expansions are made at the nuclear facili-ties, that the ratepayer is paying that recovery cost there. I know that.

Chairman SPRATT. And if this issue is not resolved within, say, the next ten years, will it be necessary for the nuclear plants in South Carolina to expand their pools for the placement of the casks with nuclear waste?

Mr. WRIGHT. That is a good question, Mr. Chairman. I know that if they are full, they just continue to put it in dry cask storage. I do not know that they would enlarge the pools anywhere. But the new, you know, you have got the new plants that are going to be coming on line, two of them for sure, in, I think in 2016 and 2017, something like that, at the (Page 90 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 66 of 89 53 Chairman SPRATT. That is my next question. Despite this issue, Duke, Progress Energy, and SCANA, three of Carolinas utilities, are still pushing forward with plans for new reactors.

Mr. WRIGHT. Well, the only two that have been through a rate proceeding, have been approved, are the two at V.C. Summer that are through SCANA, through SCE&G. The other plants have not come before us, but there has been paperwork filed at the NRC.

But there has not been a proceeding before the State. So what they are going to do, I could not tell you what the utilities future for Duke or Progress are. But SCANA moved forward. But when SCANA moved forward, Yucca was still the end site, the geologic repository.

Chairman SPRATT. We have several different engineering groups that have kind of merged efforts for several different providers, several different power companies. In order not to reinvent the wheel, they are working together on technology and design of new facilities. And in addition, of course, we have others in the State working on the creation of MOX fuel out of bomb grade materials.

Mr. WRIGHT. Yes, sir.

Chairman SPRATT. Have we had any layoffs or significant job losses as a result of the decisions by DOE to close Yucca Mountain?

Mr. WRIGHT. I believe there has been some impact at SRS. I am not, I can get that for you. But I believe there has been some im-pact, but how much I do not have knowledge of that.

Chairman SPRATT. It was my information that one group in par-ticular in the Fort Mill area of the State, near Charlotte, closed down an office due to the fact that this decision Mr. WRIGHT. Yes, sir. I am sure that has happened. But to quan-tify it, I could not tell you how many people or, you know, what the economic impact is. Although I can certainly get that, because the City of Aiken would give me that information.

Chairman SPRATT. If you get it and submit it for the record, we would appreciate it.

Mr. WRIGHT. Yes, sir. I would be glad to do that.

Chairman SPRATT. Any other questions of the witness? Thank you very much, Mr. Wright, for coming today. And I would ask unanimous consent that members who did not have the oppor-tunity to ask questions be given seven days in order to submit questions for the record. Thank you very much, Mr. Wright, and the hearing is adjourned.

[The prepared statement of Mr. Connolly follows:]

PREPARED STATEMENT OF HON. GERALD E. CONNOLLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA Mr. Chairman, thank you for holding this hearing on the budgetary implications of the plan to close Yucca Mountain as a nuclear waste repository. I look forward to a discussion of the financial issues surrounding the storage of our nations grow-ing stock of spent nuclear fuel and other radioactive waste.

Nuclear and radioactive waste is an unfortunate byproduct of our nations 104 nu-clear reactors and power plants, hospital waste, industrial waste, federal nuclear weapons programs, and other domestic sources. Nuclear power currently generates roughly 20 percent of the nations electricity. Most of the waste from these reactors is stored on the individual sites at this time. There is more than 56,000 metric tons of waste stored around the country at 121 different sites. In my own state of Vir-ginia, more than 30 percent of our electricity is generated by two plants at North Ana and Surry. More than 2,000 metric tons of waste from the four reactors at those plants is stored on site in the Commonwealth.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 67 of 89 Exhibit 9 (Page 92 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 68 of 89 S. HRG. 112-598 THE NUCLEAR WASTE ADMINISTRATION ACT HEARING BEFORE THE COMMITTEE ON ENERGY AND NATURAL RESOURCES UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION TO RECEIVE TESTIMONY ON S. 3469, THE NUCLEAR WASTE ADMINISTRATION ACT OF 2012 SEPTEMBER 12, 2012

(

Printed for the use of the Committee on Energy and Natural Resources U.S. GOVERNMENT PRINTING OFFICE 76-685 PDF WASHINGTON  : 2013 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 (Page 93 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 69 of 89 COMMITTEE ON ENERGY AND NATURAL RESOURCES JEFF BINGAMAN, New Mexico, Chairman RON WYDEN, Oregon LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming MARY L. LANDRIEU, Louisiana JAMES E. RISCH, Idaho MARIA CANTWELL, Washington MIKE LEE, Utah BERNARD SANDERS, Vermont RAND PAUL, Kentucky DEBBIE STABENOW, Michigan DANIEL COATS, Indiana MARK UDALL, Colorado ROB PORTMAN, Ohio JEANNE SHAHEEN, New Hampshire JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota DEAN HELLER, Nevada JOE MANCHIN, III, West Virginia BOB CORKER, Tennessee CHRISTOPHER A. COONS, Delaware ROBERT M. SIMON, Staff Director SAM E. FOWLER, Chief Counsel MCKIE CAMPBELL, Republican Staff Director KAREN K. BILLUPS, Republican Chief Counsel (II)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 70 of 89 CONTENTS STATEMENTS Page Barron, Henry B., President and Chief Executive Officer, Constellation En-ergy Nuclear Group, LLC, Baltimore, MD ......................................................... 27 Bingaman, Hon. Jeff, U.S. Senator From New Mexico ........................................ 1 Fettus, Geoffrey H., Senior Attorney, Nuclear Program, Natural Resources Defense Council .................................................................................................... 33 Heller, Hon. Dean, U.S. Senator From Nevada .................................................... 2 Lyons, Peter B., Assistant Secretary for Nuclear Energy, Department of En-ergy ........................................................................................................................ 10 Meserve, Richard A., President, Carnegie Institution for Science ...................... 7 Murkowski, Hon. Lisa, U.S. Senator From Alaska ............................................... 2 Scowcroft, General Brent, Co-Chairman, Blue Ribbon Commission on Amer-icas Nuclear Future ............................................................................................. 4 APPENDIXES APPENDIX I Responses to additional questions .......................................................................... 47 APPENDIX II Additional material submitted for the record ........................................................ 63 (III)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 71 of 89 APPENDIX II Additional Material Submitted for the Record NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, September 10, 2012.

Hon. JEFF BINGAMAN, Chair, Committee on Energy and Natural Resources, U.S. Senate, Washington, DC.

Hon. LISA MURKOWSKI, Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, Wash-ington, DC.

DEAR CHAIRMAN BINGAMAN AND RANKING MEMBER MURKOWSKI:

The National Association of Regulatory Utility Commissioners (NARUC) would like to submit the following comments regarding the proposed Nuclear Waste Ad-ministration Act of 2012, S. 3469.

NARUC and our member State public utility commissioners have been actively engaged in the issue of nuclear waste disposal since the Nuclear Waste Policy Act was enacted in 1983. We followed closely and participated in the work of the Blue Ribbon Commission on Americas Nuclear Future and we want to contribute to im-plementing its recommendations so that the troubled program can get on track.

Our interest in this issue centers around the consumers of nuclear utilities who have been bearing the ultimate cost of fees paid by their utilities for the electricity that is produced from the Nations 104 nuclear reactors. Those fee payments rep-resent the grand bargain set in the Nuclear Waste Policy Act. Under the Act, the federal government is responsible for the safe disposal of both government and com-mercial nuclear waste, and those who have benefit (i.e. consumers of nuclear power) shall pay for the cost of disposal of waste products. Unfortunately, history has prov-en that the collection of fees has been the only aspect of the nuclear waste program that began on time and has functioned as designed.

We should note for the record that NARUC is a party to litigation before the Court of Appeals District of Columbia Circuit seeking to require that the Nuclear Regulatory Commission resume the Yucca Mountain license application review and come to a final determination of whether a repository at Yucca Mountain meets reg-ulatory requirements or not.

The Blue Ribbon Commission on Americas Nuclear Future in its January Report to the Secretary of Energy said all of its recommendations can and should be imple-mented regardless of what happens to Yucca Mountain. We had expected that the Administration would have provided some indication of whether and how it will im-plement those recommendations or how it intends to fulfill the Federal Govern-ments obligations for managing and ultimately disposing of spent nuclear fuel and high-level radioactive waste as it pledged in 2009.

We commend the leadership of this Committee for your collaborative efforts with members of the Energy and Water Appropriations Subcommittee to produce the pro-posed Nuclear Waste Administration Act of 2012, S. 3469, as a legislative vehicle to incorporate key provisions of the BRC Report into a modified Nuclear Waste Pol-icy Act. We have some comments from the standpoint of ratepayers and in some in-stances in comparison with the BRC recommendations.

You will not be surprised that our primary interest is on fixing the Nuclear Waste Fund. The BRC said it believed that the success of a revitalized waste management program will depend on making the revenues by the nuclear waste fee and the bal-ance in the NWF available when needed and in the amounts needed to implement the program. The Commission called for reform in two stages:

• Near Term, within existing administrative authority: Modifying existing con-tracts with utilities such that total fees paid to the Treasury would match the amount appropriated from the NWF in the same year. The balance would be placed in irrevocable trust accounts (escrow) for future payments. The fee rev-(63)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 72 of 89 64 enue would be reclassified as offsetting receipts, subject to concurrence by the Congressional Budget Office and the Budget Committees.

• Congressional action required: The BRC recommended budget autonomy for the new nuclear waste management organization that would require legislation (such as S. 3469) to establish. Specifically, the BRC recommended the legisla-tion include a defined schedule of payments to transfer the balance of the Fund (the corpus) to the new organization over a reasonable future time period start-ing 10 years after the organization is established.

We are deeply disappointed that the Administration chose not to move ahead on the near-term action which was so carefully researched by the Blue Ribbon Commis-sion and placed in their hands. We are not experts in federal fiscal rules, but given the importance of resolving this issue, we expected a better effort. This lack of ac-tion reminds us of a baseball sayingYou will never get a hit if you dont take a swing.

Thankfully, as it relates to the actions requiring congressional action, , S. 3469 steps up to the plate. The legislation creates an independent agency called the Nu-clear Waste Administration that would be given most of the duties and authorities under the NWPA that are presently assigned to the Secretary of Energy. Still, we are concerned about how the program will be managed before legislation is enacted and how transition to the NWA is implemented. For the past two years, about $770 million in fees have been paid into the Nuclear Waste Fund annually and no money was appropriated for waste disposal. It appears, however, that the money was spent for other purposes and more IOUs were added to the Fund. We are anxious to see if FY 2014 is any different.

Regarding the organizational form and function, we thought the federal corpora-tion proposed by the BRC was well considered. We found the various oversight mechanisms ample, including a role for State utility commissioners to serve in the review of fee adequacy determination.

Having seen extended vacancies in the senior DOE waste program managers po-sition caused by lengthy confirmation delays in the Senate during the Yucca period, we find the BRC federal corporation a well suited approach. This is because having presidentially appointed directors select the CEO better protects the position and provides greater program stability than the politically-appointed Administrator/Dep-uty Administrator positions the NWA legislation would.

Moreover, the bill does not heed the clear call for financial reform made by the BRC and it may impede the startup of the new organization. The Administration (so far) chooses to avoid a rejection of the near-term fee reclassification, so let us express some apprehension over how a Nuclear Waste Administration might be dif-ficult to form if it cannot attract top-tier talent because of concerns over its financial stability. Potential applicants for the NWA Administrator position do want to see a secure financial foundation underlying the NWA or other organization.

Additionally, we are puzzled by the appearance of different degrees of financial autonomy for the new Administration:

• In Sec. 301 the NWA is given authority for the collection, adjustment, deposi-tion and use of fees to accomplish waste functions, yet

• Sec. 401 (c) says funds deposited in the Working Capital Account shall be im-mediately be available. to carry out the functions of the Administrator, except to the extent limited in annual authorization or appropriation Acts.

The Working Capital Fund seems to offer improved access to the fee revenue, which should be an improvement over the present arrangement. An even better strengthening of the NWA financial support, though, would have the interest earned on the balance in the Nuclear Waste Fund deposited in the Working Capital Fund.

In recent years, that interest has been over $1 billion a year.

The bill gives no indication on any disposition schedule like the BRC suggested; leaving some doubt about when and under what conditions the corpus, reportedly over $26 billion now, will be made available for the purpose it was collected. No one is saying there is a need to use that money now, but every calculation of the suffi-ciency of the fees rests on the assumption that 100 percent of past fees paid is avail-able to the waste activities program, including interest. It seems ironic, then, that Section 403 provides direction that the NWA is to assume that sufficient funds will be appropriated to the NWA to cover the cost of defense waste disposal, yet there is no counterpart assurance that past fee revenue collected and supposedly held in the Nuclear Waste Fund will also be appropriated.

We agree with the shift to a more co-equal consent-based approach to siting nu-clear waste facilities. We hope that the implementing organization is given latitude to be adaptive to the circumstances of the States and localities involved. There are (Page 97 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 73 of 89 65 opportunities to employ the principles recommended by the BRC in pursuit of a con-solidated interim storage facility for spent nuclear fuel from the decommissioned re-actor storage sites. Successful development of such a facilitywhether by DOE or a new organizationwould demonstrate that the government can safely transport and store spent nuclear fuel while pursuing a geologic repository. There are a num-ber of cost estimates for building such a facility. One done by DOE in 2007 indicated a facility for the decommissioned sites could be built and operated for 15 years for the same amount of fees paid by all reactors in a single year.

The bill includes many other important elements that we are not addressing here.

Importantly, we want to continue to work with DOE until a new organization is formed and functional. We must be realistic about just how quickly we can move forward, even if Congress passes a bill. Issues such as the radiation standards, siting guidelines and development of a mission plan within a year, will take time.

Indeed, just building a nucleus staff and creating a new organization will take time.

As we stand at the threshold of dramatic sequestration reductions in federal agen-cy budgets, there may be resistance to creating a new federal agency for any pur-pose. We considered it unfortunate that the Administration took credit in the FY 2010 Budget for termination of the Yucca Mountain program, rather than recog-nizing that the Administrationwe believemeant to cancel the Yucca Mountain project and to reset the development of the program at a different site or sites. We regret the disbanding of a residual staff within the Department of Energy that could tend to disposal affairs during the BRC deliberation and to aid in the establishment of a new waste management organization.

In conclusion, NARUC appreciates the leadership in creating this bill-a positive stepalthough we remain apprehensive about limits on annual fees and worried over the corpus.

The best media summation comes from July 4 New York Times: If nuclear power is to have a future in this country, politicians, scientists, and industry leaders need to commit to finding a solution instead of just hoping everything will somehow work out.The BRC expressed much the same appeal in its Report, as its members be-lieve it is long past time for the government to make good on its commitments to the American people to provide for the safe disposal of nuclear waste.

Sincerely, DAVID A. WRIGHT, NARUC President, Vice Chairman, South Carolina Public Service Commission.

STATEMENT OF THE ENERGY COMMUNITIES ALLIANCE Chairman Bingaman, Ranking Member Murkowski and Members of the Com-mittee, we thank you for accepting our written testimony on S.3469, a bill to estab-lish a new organization to manage nuclear waste, provide a consensual process for siting nuclear waste facilities, ensure adequate funding for managing nuclear waste, and for other purposes. We would also like to thank the sponsor of this bill: Senator Jeff Bingaman (D-NM). The Energy Communities Alliance (ECA) is the association of local governments that are adjacent to or impacted by Department of Energy (DOE) nuclear activities. Our members are either neighbors or hosts of DOE and National Nuclear Security Administration (NNSA) sites that currently produce or formerly produced defense nuclear waste, sites that store and process defense nu-clear waste, and the sites that may potentially host a future interim storage facility, reprocessing facility or geologic repository.

Founded in 1992, ECA is the only association to bring together and provide a cen-tral voice for local elected and appointed officials on DOE issues. Our sites are the sender and receiver sites for nuclear waste, and potential hosts for nuclear waste interim storage, recycling and disposal facilities. We believe that local governments have a critical role to play in any waste discussion, and we have stated this position many times in our testimony before the Blue Ribbon Commission on Americas Nu-clear Future (BRC). We applaud the efforts of this legislation to ensure that local governments are involved in waste decisions from the beginning.

Our communities are most interested in the disposal of defense waste currently stored at many of our sites. As you consider this legislation, we ask you to take into account the impact these decisions will have on our communities. We would like to offer the following recommendations and comments on S.3469:

• Congress and the Administration Need to Re-Engage Communities on HLW Issues

• ECA Supports the Inclusion of Local Governments in the Decision-Making Proc-ess (Page 98 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 74 of 89 70 ation. Many states may opt not to view storage as any sort of burden due to incen-tives, road payments and job creation opportunities. If the determination of burden vs. benefit is strictly left up to the individual state, such language could be produc-tive.

However, opponents of a specific storage site may interpret such language to mean that states that currently have nuclear waste facilities would not be eligible for storage because they have already done their share when it comes to the na-tions nuclear waste needs. This is again a determination that should be made by each individual state rather than having the federal government decide. An incen-tive-based interim storage plan could be quite lucrative for an interested statethe federal government should avoid any language that might be somehow used, through misinterpretation, to punish states already involved in the nuclear waste process by making them less eligible for a desired facility.

Furthermore, many of the states with existing nuclear waste facilities (including transuranic) are likely to be some of the nations best locations for future storage due to geographic and geologic considerations, existing trained workforce avail-ability, and regional socio-political understanding of nuclear waste issues. A mis-interpretation of the unduly burden line could be used to eliminate many of the nations best possible locations for interim storage.

Senators, we ask that you look to our nations recent past at some of the mistakes made during the formation of the Nuclear Waste Policy Act (and amendments).

There were unique provisions, for example, placed in the NWPA forbidding certain types of future study of specific types of geology. Those type of misplaced, self-serv-ing laws are still causing our nation legal difficulties today. When in doubt, we be-lieve the best path forward in any legislation aiming to capture the spirit of the BRCs recommendations is to leave interpretations up to individual states and to avoid any federal language that might obstruct this process.

In summary, our recommendations to the proposed bill, as it currently stands, are as follows:

1. Delink interim storage from repository development.

2. Establish language allowing for defense high level waste to be stored in an interim storage facility.

3. Remove the bills unduly burden language as it applies to states with TRU waste or defense waste to avoid probable misinterpretation.

We remain inspired by the bi-partisan, sincere efforts the four of you have dis-played in putting together our nations nuclear plan. We believe this bill, once com-plete, may well create a responsible national stewardship plan that will withstand the test of time. Our organization thanks you all again for your contributions to solving our nations nuclear waste crisis and your decades of service to this great nation.

STATEMENT OF DAVID A. WRIGHT, CHAIRMAN, SOUTH CAROLINA PUBLIC SERVICE COMMISSION, NUCLEAR WASTE STRATEGY COALITION

Dear Chairman Bingaman & Ranking Member Murkowski:

The Nuclear Waste Strategy Coalition (NWSC) thanks the Senate Energy & Nat-ural Resources Committee for convening a hearing on important issues pertaining to nuclear waste disposal and submits the following comments regarding S. 3469, the Nuclear Waste Administration Act of 2012. Described by its sponsor as a bill to implement the recommendations of the Blue Ribbon Commission on Americas Nuclear Future (BRC), S. 3469 and the related September 12th hearing provide an opportunity to begin building a record for future Congressional action on the BRC and other approaches to best meet the needs of our country with respect to nuclear waste policy reform.

The BRC report contained many recommendations that our members have long supported, including funding reform to protect consumers continuing fee payments and the Nuclear Waste Fund (NWF) balance; prompt development of consolidated interim storage and geologic disposal; and an independent waste management orga-nization with the authority and resources to succeed.

Although not addressed by the BRC, the proposed Yucca Mountain repository re-mains the nations best hope for promptly developing geologic disposal. The De-partment of Energy (DOE) and the Nuclear Regulatory Commission (NRC) should resume the Yucca Mountain licensing process both as a requirement of law and as a matter of respect to taxpayers and electricity customers who have invested billions of dollars in the license application. The NWSC supports Yucca Mountain and the BRC recommendations, and we emphasize these are not mutually exclusive posi-(Page 99 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 75 of 89 71 tions. Nothing in the BRC report precludes resumption of work on Yucca Mountain.

In fact, the BRC recommendations may be viewed as complementary steps to ad-dress needs in the interim and over the longer-term. Specifically, consolidated in-terim storage is needed until a repository is opened, and an additional repository perhaps sited using a consent-based processwill be needed under existing law.

With that context, the NWSC provides feedback regarding certain provisions of S. 3469:

Independent Waste Management Organization Following years of budget cuts, management turnover, and missed deadlines, our members wholeheartedly support the BRC recommendation for a new, single-pur-pose organization to develop and implement a focused, integrated program for the transportation, storage, and disposal of nuclear waste. Such an organization could be structured numerous ways. We prefer models that ensure accountability but rea-sonably insulate the organization from political interference and excessive turnover in key positions. Additionally, stakeholders should serve in some type of oversight or advisory capacity. The proposed Nuclear Waste Administration in S. 3469 is lack-ing with respect to some of the key elements noted here. While not endorsing any one model at this point, we prefer the government-owned corporation model as rec-ommended by the BRC over models that set up government agencies with both po-litically-appointed leadership and oversight boards that tend to change with every administration. Finally, regardless of the model chosen for transferring nuclear waste management functions out of DOE, guidance to facilitate a smooth transition would be helpful.

Funding Reform Consistent with the BRC recommendations, the Administration, with Congres-sional support, needs to fix the funding for the nuclear waste program. The BRC eloquently stated the importance of reforming the existing funding mechanism as follows:

The success of a revitalized nuclear waste management program will de-pend on making the revenues generated by the nuclear waste fee and the balance in the NWF available when needed and in the amounts needed to implement the program.

In a letter to the President over a month before their report was issued, the BRC Co-Chairs delineated near-term steps for timely actions that the current unsustainable situation warrants. Unfortunately, those recommendations have not been followed. As for S. 3469s creation of a new Working Capital Fund, we com-mend the effort to stop future raiding of consumer payments intended for the pro-gram. However, access to the Working Capital Fund would be subject to appropria-tions, potentially limiting the Administrators ability to carry out necessary program activities. Also, we support NARUCs suggestion to strengthen financial support of the new organization by transferring the interest earned on the NWF balance to the new Working Capital Fund. Finally, we would like assurance that the balance in the NWF will be made available when program needs dictate.

Consolidated Interim Storage Consolidated interim storage (CIS) should be authorized and funded as a safe, cost-effective option for managing spent nuclear fuel and high-level radioactive waste from decommissioned and operating plants. While a permanent facility is being licensed and constructed, one or more CIS facilities would permit the federal government to begin meeting its obligations and reduce taxpayer liabilities associ-ated with the governments delay. As such, we support the BRC call for prompt ef-forts to develop CIS with used nuclear fuel from the decommissioned reactor sites first in line for transfer. We were delighted to see that approach in the Senate appropriations language introduced earlier this year, and we suggest that com-prehensive reform proposals such as S. 3469 expressly include language to ensure that CIS is authorized.

Although well-intentioned, the linkage between CIS and progress on a permanent disposal facility in S. 3469 prevents site-specific flexibility and does not need to be legislatively mandated. Recognizing a need for disposal under any scenario, the country must promptly site and construct a permanent disposal facility, and we urge Congressional efforts to properly fund the repository program accordingly. That would best ensure that current dry cask storage and future CIS facilities do not be-come de facto permanent disposal facilities. At the same time, we need authoriza-tion and appropriations for CIS that affords as much flexibility as possible. In a con-sent-based siting scenario, potential CIS facility host communities would be empow-(Page 100 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 76 of 89 72 ered to assess and manage the risks of becoming de facto permanent facilities, and they will undoubtedly do so.

Additionally, the bills requirement that utilities settle their lawsuits against the federal government in order to be permitted to use a CIS facility would seem to per-petuate the untenable situation of prolonged on-site dry cask storage and mounting federal government liability. We need not remind Congress about which entity has not met its obligations under the law and per its contracts with utilities. The federal government still has a roadmap for avoiding future liability via performance.

Consent-Based Siting With respect to consent-based siting processes, the NWSC emphasizes the need for flexibility so as not to limit creative and effective solutions that may be proposed by potential host communities. With that in mind, we agree that is important to have an enforceable agreement at some point.

While many of the BRC recommendations require legislative solutions, DOE should take action immediately to advance BRC near-term recommendations under existing authority. Until that happens, DOE should be held accountable to deliver a plan that reflects a sense of urgency, outlines specific actions, and takes owner-ship for the countrys high level radioactive waste. Therefore, we urge you to remind DOE of the Senates interest in receiving the implementation plan.

In addition, it appears likely that the court will soon order the NRC and DOE to resume the Yucca Mountain licensing process. DOE and NRC should have execut-able plans in place to do so. We urge you to request a specific plan, including the resources required for completing the licensing process, from DOE and NRC.

Thank you for your leadership in initiating the dialogue pertaining to certain BRC recommendations. The NWSC stands ready to work with you and your Congres-sional colleagues, the Administration, and DOE to advance meaningful nuclear waste policy reform. Please let us know if you would like to discuss further.

NATIONAL CONFERENCE OF STATE LEGISLATURES, Washington, DC, September 14, 2012.

Hon. JEFF BINGAMAN, Chairman, Committee on Energy and Natural Resources, U.S. Senate, 304 Dirksen Senate Building, Washington, DC.

Hon. LISA MURKOWSKI, Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 304 Dirksen Senate Building, Washington, DC.

Re: Nuclear Waste Administration Act of 2012 (S. 3469)

DEAR CHAIRMAN BINGAMAN AND RANKING MEMBER MURKOWSKI, On behalf of the National Conference of State Legislatures (NCSL), I applaud this committee for moving the debate concerning Americas nuclear energy issues for-ward by building on the recommendations for a new national radioactive waste management strategy made by the Blue Ribbon Commission on Americas Nuclear Future (BRC) in its final report issued on January 26, 2012.

NCSL is the bi-partisan national organization representing the 50 state legisla-tures and the legislatures of our nations commonwealths, territories and the Dis-trict of Columbia. NCSL has a long history of working on nuclear energy issues.

Specifically, NCSLs Nuclear Legislative Working Group, of which I am the chair, is comprised of state legislators from across the country who discuss issues sur-rounding nuclear energy including the safe handling, storage and transportation of waste. This long-standing group meets twice a year and also helps to form NCSL policy directives on this and other topics. I am also a member of NCSLs Executive Committee and serve on NCSLs Energy Supply Task Force. The task force explores current energy policies in the United States and makes recommendations for changes to current NCSL policy related to energy issues.

NCSL has adopted two applicable policies on these topics, Radioactive Waste Management Policy Directive and National Energy Policy Directive, which have been submitted as attachments to these written remarks. These two policies serve as the foundation for these remarks and our support of congressional efforts to find a solution to nuclear waste management in the U.S. including:

• development and licensing of a high-level waste/used nuclear fuel permanent disposal facility;

• establishment of consolidated interim storage facilities at technically and sci-entifically suitable sites; (Page 101 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 77 of 89 Exhibit 10 (Page 102 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 78 of 89 RECOMMENDATIONS OF THE BLUE RIBBON COMMISSION ON AMERICAS NUCLEAR FUTURE HEARING BEFORE THE SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY OF THE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED TWELFTH CONGRESS SECOND SESSION FEBRUARY 1, 2012 Serial No. 112-109

(

Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov U.S. GOVERNMENT PRINTING OFFICE 75-441 PDF WASHINGTON  : 2012 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 (Page 103 of Total)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 79 of 89 COMMITTEE ON ENERGY AND COMMERCE FRED UPTON, Michigan Chairman JOE BARTON, Texas HENRY A. WAXMAN, California Chairman Emeritus Ranking Member CLIFF STEARNS, Florida JOHN D. DINGELL, Michigan ED WHITFIELD, Kentucky Chairman Emeritus JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts JOSEPH R. PITTS, Pennsylvania EDOLPHUS TOWNS, New York MARY BONO MACK, California FRANK PALLONE, JR., New Jersey GREG WALDEN, Oregon BOBBY L. RUSH, Illinois LEE TERRY, Nebraska ANNA G. ESHOO, California MIKE ROGERS, Michigan ELIOT L. ENGEL, New York SUE WILKINS MYRICK, North Carolina GENE GREEN, Texas Vice Chairman DIANA DEGETTE, Colorado JOHN SULLIVAN, Oklahoma LOIS CAPPS, California TIM MURPHY, Pennsylvania MICHAEL F. DOYLE, Pennsylvania MICHAEL C. BURGESS, Texas JANICE D. SCHAKOWSKY, Illinois MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas BRIAN P. BILBRAY, California JAY INSLEE, Washington CHARLES F. BASS, New Hampshire TAMMY BALDWIN, Wisconsin PHIL GINGREY, Georgia MIKE ROSS, Arkansas STEVE SCALISE, Louisiana JIM MATHESON, Utah ROBERT E. LATTA, Ohio G.K. BUTTERFIELD, North Carolina CATHY MCMORRIS RODGERS, Washington JOHN BARROW, Georgia GREGG HARPER, Mississippi DORIS O. MATSUI, California LEONARD LANCE, New Jersey DONNA M. CHRISTENSEN, Virgin Islands BILL CASSIDY, Louisiana KATHY CASTOR, Florida BRETT GUTHRIE, Kentucky PETE OLSON, Texas DAVID B. MCKINLEY, West Virginia CORY GARDNER, Colorado MIKE POMPEO, Kansas ADAM KINZINGER, Illinois H. MORGAN GRIFFITH, Virginia SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY JOHN SHIMKUS, Illinois Chairman TIM MURPHY, Pennsylvania GENE GREEN, Texas Vice Chairman Ranking Member ED WHITFIELD, Kentucky TAMMY BALDWIN, Wisconsin JOSEPH R. PITTS, Pennsylvania G.K. BUTTERFIELD, North Carolina MARY BONO MACK, California JOHN BARROW, Georgia JOHN SULLIVAN, Oklahoma DORIS O. MATSUI, California CHARLES F. BASS, New Hampshire FRANK PALLONE, JR., New Jersey ROBERT E. LATTA, Ohio DIANA DEGETTE, Colorado CATHY MCMORRIS RODGERS, Washington LOIS CAPPS, California GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan BILL CASSIDY, Louisiana HENRY A. WAXMAN, California (ex officio)

CORY GARDNER, Colorado JOE BARTON, Texas FRED UPTON, Michigan (ex officio)

(II)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 80 of 89 C O N T E N T S Page Hon. John Shimkus, a Representative in Congress from the State of Illinois, opening statement ................................................................................................ 1 Prepared statement .......................................................................................... 4 Hon. Gene Green, a Representative in Congress from the State of Texas, opening statement ................................................................................................ 6 Hon. Joe Barton, a Representative in Congress from the State of Texas, opening statement ................................................................................................ 7 Hon. Henry A. Waxman, a Representative in Congress from the State of California, opening statement ............................................................................. 8 WITNESSES Lee Hamilton, Co-Chair, Blue Ribbon Commission on Americas Nuclear Fu-ture ........................................................................................................................ 10 Brent Scowcroft, Co-Chair, Blue Ribbon Commission on Americas Nuclear Future ................................................................................................................... 12 Prepared statement of Mr. Hamilton and Mr. Scowcroft .............................. 16 Lake H. Barrett, President, L. Barrett Consulting ............................................... 65 Prepared statement .......................................................................................... 68 D. Warner North, President and Principal Scientist, NorthWorks, Inc. ............. 73 Prepared statement .......................................................................................... 75 Martin G. Malsch, Partner, Egan, Fitzpatrick, Malsch & Lawrence, PLLC ...... 99 Prepared statement .......................................................................................... 101 Edwin Lyman, Senior Scientist, Global Security Program, Union of Concerned Scientists ............................................................................................................... 113 Prepared statement .......................................................................................... 115 Thomas A. Schatz, President, Citizens Against Government Waste .................. 126 Prepared statement .......................................................................................... 128 David A. Wright, President, National Association of Regulatory Utility Com-missioners ............................................................................................................. 136 Prepared statement .......................................................................................... 138 (III)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 81 of 89 136 Mr. SHIMKUS. And now I would like to recognize Mr. Wright for 5 minutes, sir.

STATEMENT OF DAVID A. WRIGHT Mr. WRIGHT. Thank you. Good afternoon, Chairman, Ranking Member Green.

Mr. SHIMKUS. Your microphone.

Mr. WRIGHT. It is on, I believe, I will pull it closer. My name is David Wright, and I am a commissioner with the South Carolina Public Service Commission, and I serve as president of the Na-tional Association of Regulatory Utility Commissioners on whose behalf I am speaking today. NARUC and State utility commissions in 40 States served by nuclear generated electricity have been in-volved in the troubled history of nuclear waste disposal since 1983.

That is when the utilities, which own the fuel, were required by the Nuclear Waste Policy Act, to enter into contracts with DOE. Those contracts called for payments of fees for nuclear-generated elec-tricity to the Treasury for deposit into the nuclear waste fund to pay for the cost of disposal of used fuel beginning in 1998.

Disposal has not happened, but the fee payments continue to be made. Or as a former Florida utility commissioner summarized the status in 1991, the government has our money, we have their waste. It is now 20-plus years later, and we still have the govern-ments waste.

Utilities passed the cost of the fees to their customers through their electric bill. In addition, and because of the governments fail-ure to open Yucca, customers, through their rates, have had to pay additional amounts to cover the cost of reracking utility spent fuel pools to accommodate more spent fuel. And have had to pay for on-site dry cask storage as well as the increased security required there.

Moreover, all taxpayers, through the judgment fund, have had to pay damages for the lawsuits brought to date as well as those to come. In 2009, the administration pronounced Yucca Mountain not a workable option, and that it intended to terminate the repository development there, a position contrary to the law of the land. In March 2010, DOE asked the NRCs Atomic Safety Licensing Board for permission to withdraw the application with prejudice. In June, the ASLB rejected the request. The decision was appealed to the NRC. While the NRC was disposing of the license matter the Presi-dent directed that the Secretary of Energy appoint the Blue Ribbon Commission on Americas nuclear future to consider and rec-ommended a new strategy, a strategy that soon became evident would be a post-Yucca strategy.

In 2010, NARUC and several other parties petitioned the Court of Appeals under the NWPA, to challenge DOEs authority to with-draw the Yucca Mountain license application, but the case dis-missed because there had been no final agency action by the NRC on the appeal of the boards decision rejecting DOEs request. The NWPA mandates that once the Yucca Mountain license was sub-mitted. The NRC had only 3 years to complete the review pro-ceedings, those 3 years have expired. Currently, the NRC faces a mandamus action to force it to complete the required review in the U.S. Court of Appeals for the District of Columbia circuit. NARUC (Page 106 of Total)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 82 of 89 137 is one of several petitioners in that suit. Our reply briefs were filed last Friday.

Notwithstanding, our pro Yucca position, NARUC was closely in-volved in the work of the BRC, we wrote letters, gave testimony, provided comments to the subcommittee and attended the public meetings. As for the recommendations, we have the following points: 1, reform with nuclear waste fund is, essential; 2, regard-less of Yucca Mountain, we will need another new repository. The lessons of Yucca and others suggest the consent-based siting ap-proach may get better reports but will require patients; 3, we have long favored consolidated and home storage on a parallel track with Yucca, but find the report vague as to quantity, duration and cost as well as what the effect will be on the fee if the nuclear waste fund is to be used to pay for storage; 4, we agree with the concept and benefits of a new Federal corporation that can focus solely on the waste management mission; 5, transportation plan-ning and coordination with States and others cannot begin soon enough.

There are two areas where we disagree with the Commission re-port. A, the report says, Overall we are confident that our waste management recommendations can be implemented using revenue streams already dedicated for this purpose. There are no cost esti-mates to substantiate that belief, which likely also assumes the

$26.7 billion under the nuclear waste fund is assured; B, the report further says, We know what we have to do, we know we have to do it, and we even know how to do it. While we may wish that were true, our assessment is that there were too many people who are content to pass the problem along to future generations and leave the waste where it is. Continuing to kick the dry cask down the road should not be an option.

So yet another study calls for prompt action, yet despite on paper a financing plan, implementation relies on leadership from the ad-ministration and the Congress. NARUC stands ready to assist on behalf of ratepayers who may not even realize it, but they are al-ready paying for safe waste disposition. Thank you for listening.

[The prepared statement of Mr. Wright follows:]

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 83 of 89 138 BEFORE THE UNITED STATES HOUSE OF REPRESENT ATJVES COMMITTEE ON ENERGY AND COMMERCE, SUBCOMMITTEE ON ENERGY AND THE ENVIRONMENT TESTIMONY OF THE HONORABLE DAVID A. WRIGHT PRESIDENT, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS COMMISSIONER, SOUTH CAROLINA PUBLIC SERVICE COMMISSION ON BEHALF OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS ON "Recommendations of the Blue Ribbon Commission on America's Nuclear Future" February 1, 2012 National Association of Regulatory Utility Commissioners 1101 Vermont Ave, N.W., Suite 200 Washington, D.C. 20005 Telephone (202) 898-2200, Facsimile (202) 898-2213 Internet Home Page http://www.naruc.org 75441.072 (Page 108 of Total)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 84 of 89 139 Summary for Testimony of the Honorable David A. Wright On Behalf of The National Association of Regulatory Utility Commissioners

• The NRC has stopped the review of the Yucca Mountain license application. We are currently in litigation challenging the basis for not letting the process run to a conclusive result.

• NARUC welcomes the Blue Ribbon Commission Report.

• We support all of the recommendations.

• We place highest priority on fixing the Nuclear Waste Fund so that fees collected are available for purposes intended-disposing of used nuclear fuel.

• The Commission reaffirmed that we still need a new repository regardless of what happens with Yucca.

• We support consolidated interim storage but find the Report vague as to quantity, duration and cost. We encourage seeking volunteer sites.

• Implementation requires leadership from the Administration and Congress. NARUC stands ready to help and represent ratepayers.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 85 of 89 140 Good Morning, Chairman Shimkus, Ranking Member Green, and Subcommittee Members. Thank you for the opportunity to appear before you today.

My name is David Wright. I am a commissioner with the South Carolina Public Service Commission and I serve as president of the National Association of Regulatory Utility Commissioners (NARUC), on whose behalf I am speaking this morning. I appreciate the opportunity to present NARUC's views on the subject of disposition of spent or used nuclear fuel from commercial nuclear power plants.

NARUC is a quasi-governmental, non-profit organization founded in 1889. Our membership includes the public utility commissions serving all States and territories. NARUC's mission is to serve the public interest by improving the quality and effectiveness of public utility regulation. Our members regulate the retail rates and services of electric, gas. water, and telephone utilities. We are obligated under the laws of our respective States to assure the establishment and maintenance of such utility services as may be required by the public convenience and necessity and to assure that such services are provided under rates and subject to terms and conditions of service that are just. reasonable, and non-discriminatory.

NARUC and State utility commissions in forty States served by nuclear-generated electricity have been involved in the troubled history of nuclear waste disposal since 1983. That is when the utilities, which own the used fuel, were required by the Nuclear Waste Policy Act to enter into contracts with DOE. Those contracts called for payments of fees for nuclear-generated electricity to the Treasury for deposit into the Nuclear Waste Fund to pay for the cost of disposal 75441.074 (Page 110 of Total)

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 86 of 89 141 of the used fuel beginning in 1998. As you know, that disposal has not happened, but the fee payments continue to be made. Or, as a former Florida utility commissioner summarized the status in 1991, "The government has our money-we have their waste." lt is now 20-plus years later and we still have the governmenrs waste. Utility commissioners care because the utilities pass the cost of the fees to their customers through their electric bill. In additi~n, and because of the government's failure to open Yucca, customers, through their rates, have had to pay additional amounts to cover the cost of re-racking of the utility spent fuel pools to accommodate more spent fuel, and have had to pay for on-site dry cask storage as well as the increased security required there. Moreover, all taxpayers, through the Judgment Fund, have had to pay damages for the lawsuits brought to date as well as those to come.

We followed the slow progress of the civilian radioactive waste management program as it met a variety of setbacks and advances, exacerbated by chronic budget cuts even as the illusion of a multi-billion dollar corpus grew in the Nuclear Waste Fund. A significant milestone was met in 2002 when Congress passed the joint resolution approving Yucca Mountain as the site for the geologic repository, subject to the Department of Energy obtaining a construction license from the Nuclear Regulatory Commission. The next setback was the court remand to the Environmental Protection Agency to revise the regulation setting the radiation standard for the facility. Finally, DOE submitted the license application in June 2008. The NRC began its review of the 8,000-page application for the first-of-a-kind facility which was expected to take three to four years.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 87 of 89 142 In 2009, the Administration pronounced Yucca Mountain not to be a "workable option" and that it intended to terminate the repository development there. In March 2010, DOE asked the NRC's Atomic Safety Licensing Board for permission to withdraw the application with prejudice. In June, the ASLB rejected the request, ruling that once a valid license application was submitted under the NWPA, the NRC was required to review and act upon the application.

The decision was appealed to the NRC.

While the NRC was disposing of the license matter, the President directed that the Secretary of Energy appoint the Blue Ribbon Commission on America's Nuclear Future (BRC) to consider and recommend a new strategy; a strategy that soon became evident would be a "post-Yucca., strategy.

In 2010, NARUC, and several other parties, petitioned the Court of Appeals under the NWPA to challenge DOE's authority to withdraw the Yucca Mountain license application, but the case was dismissed because there had been no final agency action by the NRC on the appeal of the Board's decision rejecting DOE's request. After lengthy and unnecessary delays. the NRC Chairman ultimately released a decision. The NWPA mandates that once the Yucca Mountain license was submitted the NRC only had three years to complete the review proceedings. Those three years have expired. Currently, the NRC faces a mandamus action to force it to complete the required review in the United States Court of Appeals for the District of Columbia Circuit.

NARUC is one of several petitioners in that suit. Our reply briefs were just filed last Friday.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 88 of 89 143 Notwithstanding our position on Yucca, NARUC was closely involved in the work of the BRC, We wrote letters, gave testimony, provided comments on the Subcommittee, and attended most of the public meetings. We were impressed with the distinguished members, their approach to the task, the talented professional staff, and the sincere interest in public input We have asked DOE to preserve and maintain access to the Commission website.

As for the recommendations, while we welcome them all, we have the following points:

L Reform of the Nuclear Waste Fund is essential for most of the others to occur,

2. Regardless of Yucca Mountain, we need another repository. The lessons of Yucca and the better lessons of Finland, Sweden and WIPP suggest the "consent-based" siting approach may get better results, but will require patience.

3. We have long favored consolidated interim storage, but find the Report vague as to quantity, duration, and cost We are not sure what the effect will be on the fee if the Nuclear Waste Fund is to be used to pay for storage.

4. Wc agree with the concept and benefits of a new federal corporation that can focus solely on the waste management mission, hopefully with a fresh partnership attitude for encouraging the consent-based approach. We look forward to refining the concept in enabling legislation.

5. Transportation planning and coordination with States and others cannot begin soon enough.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 89 of 89 144 We would add that the time is not right to commit to a reprocessing strategy, although R&D should continue, as the BRC recommends. Also, we encourage DOE to take steps to seek volunteer host communities to step forward in storage siting without waiting to form the new management organization.

There are two areas where we disagree with the Commission Report:

l. The Report says: "Overall, we arc confident that our waste management recommendations can be implemented using revenue streams already dedicated for this purpose." There are no cost estimates to substantiate that belief, which likely also assumes the $26.7 billion in the Nuclear Waste Fund is assured.

2. The Report further says: "We know what we have to do; we know we have to do it. and we even know how to do it." While we may wish that were true, our assessment is that there are too many people who are content to pass the problem along to future generations and "leave the waste where it is." It is fitting for the Commission to call for prompt action developing both consolidated interim storage and beginning the search for a new repository, but we may need public education and outreach to help persuade some who seem to favor the "no action" alternative. Continuing to "kick the dry cask down the road should not be an option.

So, yet another study calls for prompt action, yet despite (on paper) a financing plan, implementation relies on leadership from the Administration and Congress .. NARUC stands ready to assist on behalf of the ratepayers who may not realize that they are paying for safe waste disposition.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONER:

David A. Wright In the Matter of U.S. Department of Energy Docket No. 63-001-HLW (High-Level Waste Repository)

DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT The State of Nevada has requested that I recuse or disqualify myself from any participation in the Commissions decision in the captioned matter, which involves the U.S.

Department of Energys (DOE) application for a construction authorization application at Yucca Mountain, Nevada.1 After careful consideration of the motion and the applicable law on disqualification of quasi-judicial officers, I decline to recuse myself from the Yucca Mountain licensing proceeding. As discussed below, my 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. In short, I have not prejudged the technical, legal, or policy issues in the licensing proceeding.

I. BACKGROUND The Nuclear Waste Policy Act (NWPA) requires DOE to submit to the U.S. Nuclear Regulatory Commission (NRC) a construction authorization permit for a geologic repository for the storage of high-level radioactive waste at Yucca Mountain, Nevada.2 Upon receipt of the 1

Nevada Request That Commissioner Wright Be Recused (June 7, 2018) (Motion).

2 See 42 U.S.C. § 10134(b).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 2 of 22 application, the NWPA requires the NRC to consider and render a decision approving or disapproving the issuance of the permit within three years.3 The NWPA authorizes DOE to construct only one repository.4 In 2008, DOE submitted its application.5 In September of that year, the NRC accepted the application for review, followed by the October 2008 publication of a notice offering members of the public an opportunity to request a hearing.6 In response, several interested parties, including the State of Nevada, requested and were granted a hearing on the application.7 Beginning in 2010, events unrelated to the merits of the application curtailed progress on the litigation. As relevant here, in March 2010, DOE filed a motion to withdraw its application.8 In response, five entities, including the National Association of Regulatory Utility Commissioners (NARUC), sought to intervene in the proceeding for the limited purpose of arguing the legal question whether DOE had authority to withdraw the application; NARUCs petition did not address the merits of any safety or environmental issue.9 The Construction Authorization Board 3

See id. § 10134(d).

4 See id. § 10222(d).

5 See Department of Energy; Notice of Acceptance for Docketing of a License Application for Authority to Construct a Geologic Repository at Geologic Repository Operations Area at Yucca Mountain, NV, 73 Fed. Reg. 53,284 (Sept. 15, 2008).

6 Id.; U.S. Department of Energy (High Level Waste Repository); Notice of Hearing and Opportunity to Petition for Leave to Intervene on an Application for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, 73 Fed.

Reg. 63,029 (Oct. 22, 2008).

7 LBP-09-6, 69 NRC 367, 377-78, 483 (2006), affd in part and revd in part, CLI-09-14, 69 NRC 580, 582 (2009).

8 U.S. Department of Energys Motion to Withdraw (Mar. 3, 2010).

9 See National Association of Regulatory Utility Commissioners Petition to Intervene (Mar. 15, 2010) (NARUC Petition).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 3 of 22 denied DOEs motion to withdraw.10 In September 2011, the Commission announced that it was evenly divided on whether to take the affirmative action of overturning or upholding the Boards decision.11 At that time, recognizing budgetary limitations, the Commission directed the Board to dispose of the matters pending before it.12 Thereafter, the Board suspended the proceeding.13 In 2013, the U.S. Court of Appeals for the District of Columbia Circuit directed the parties to resume the legally mandated process. Specifically, it granted a petition for a writ of mandamus brought by various parties to the proceeding, including NARUC, and ordered the NRC to promptly continue with the legally mandated licensing process for the Yucca Mountain application.14 Following Commission direction in response to that decision, the NRC Staff has since completed the safety evaluation report and a supplemental environmental impact statement, among other things.15 The administrative adjudication remains suspended.

Nevada filed a motion on June 7, 2018, requesting that I recuse myself from participating in any Commission decision pertaining to the Yucca Mountain repository licensing process, including the formal adjudicatory licensing proceeding (should it be restarted).16 Nevada raises several concerns about my ability to be objective and fair in the licensing process.

10 LBP-10-11, 71 NRC 609 (2010). In that decision, the Board also granted the new intervention petitions, including NARUCs. Id. at 636-49. NARUC argued that DOE lacked authority to withdraw. NARUC Petition at 23-27.

11 CLI-11-7, 74 NRC 212, 212 (2011).

12 Id.

13 LBP-11-24, 74 NRC 368, 370 (2011).

14 In re Aiken County, 725 F.3d 255, 267 (D.C. Cir. 2013).

15 See CLI-13-8, 78 NRC 219, 226-27 (2013).

16 Motion at 1.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 4 of 22 II. DISCUSSION A. Legal Standards A Commissioner should disqualify himself or herself only if a reasonable man, cognizant of all the circumstances, would harbor doubts about the judges impartiality.17 Courts have held that [a]dministrative officers are presumed objective and capable of judging a particular controversy fairly on the basis of its own circumstances18 and that [a] party cannot overcome this presumption with a mere showing that an official has taken a public position, or has expressed strong views, or holds an underlying philosophy with respect to an issue in dispute.19 Further, an agency official should be disqualified only where a disinterested observer may conclude that the official has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.20 B. Nevadas Motion Fundamentally, Nevadas concerns relate to my advocacy for the interests of South Carolina ratepayers during my tenure as South Carolina Public Service Commissioner.21 Nevada asserts that my service as a Commissioner on the South Carolina Public Service 17 Joseph J. Macktal, CLI-89-14, 30 NRC 85, 91 (1989) (internal citations and quotation marks omitted). NRC case law draws upon the standards for the federal judiciary. Id. Pursuant to 28 U.S.C. § 455(a), [a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. The U.S.

Supreme Court has observed that a judge should be disqualified under section 455(a) only if it appears to a reasonable, objective observer that he or she harbors an aversion, hostility, or disposition of a kind that a fair-minded person could not set aside when judging the dispute.

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009) (quoting Liteky v. United States, 510 U.S. 540, 558 (1994) (Kennedy, J., concurring)).

18 NIRS v. NRC, 509 F.3d 562, 571 (D.C. Cir. 2007) (quoting United States v. Morgan, 313 U.S.

409, 421 (1941)).

19 Id. (quoting United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1208 (D.C. Cir. 1980)).

20 Id. (quoting Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir.

1970)).

21 See Motion at 4.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 5 of 22 Commission and my related support of NARUC, as well as my public statements regarding the nations nuclear waste disposal policy, require my recusal from participation in the Yucca Mountain licensing proceeding.22 Nevada argues that my prior advocacy is wholly inconsistent with [my] new role as a neutral adjudicatory decision-maker and that [a]n objective, disinterested observer fully informed of the facts set forth [in the motion] would surely entertain significant doubt that justice would be done absent recusal.23 I disagree.

1. NARUC Petition to Intervene As stated above, in 2010 NARUC sought to intervene in the Yucca Mountain application adjudication not to challenge or otherwise engage the merits of construction authorization application, but to raise the limited legal question, which is no longer before the Commission, whether DOE could withdraw the application. As part of its intervention petition, NARUC included an affidavit signed by me for the purpose of establishing representational standing to intervene in the proceeding and solely to convey NARUCs legal position that DOE lacked authority to withdraw the license application.24 Nevada argues that my affidavit compels my recusal pursuant to 28 U.S.C § 455(b)(3).25 Section 455(b)(3) requires judicial disqualification where the judge has served in government employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion 22 See id. at 3-5, 6, 8-10.

23 Id. at 11.

24 NARUC Petition, Attach. 1, Affidavit of the Honorable David Wright, NARUC Member Commissioner, In Support of the Standing of the National Association of Regulatory Utility Commissioners (Mar. 15, 2010) (Affidavit); see NARUC Petition at 8-9; LBP-10-11, 71 NRC at 638-39 (The Commissioner of the South Carolina Public Service Commission is not seeking to be admitted as party to represent the State of South Carolina. Rather, NARUC names the Commission member for the purpose of establishing representational standing, so that NARUC may be admitted as party.). See generally 10 C.F.R. § 2.309(d); Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 258-59 (2008) (describing requirements for representational standing).

25 Motion at 3-4.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 6 of 22 concerning the merits of the particular case in controversy. Nevada contends that as an affiant, I served as an adviser or material witness on the merits of the proceeding.26 Even assuming for the sake of argument that this provision governs recusal motions here,27 I do not believe that my actions are disqualifying because they are not germane to the ultimate question of my impartiality about the issues at stake before the Commission, should the license application adjudication be restarted. As noted above, neither NARUC nor I sought to weigh in on the merits of the application, the suitability of the Yucca Mountain site from a safety and environmental standpoint. Rather, NARUC sought to intervenerelying on my affidavit to establish standingregarding the peripheral issue of whether DOE could withdraw its application. My purpose in providing an affidavit was to advocate adherence to the statutorily mandated process for consideration of the Yucca Mountain site.28 I did not advocate for a particular result of the NRCs evaluation of DOEs application. NARUCs petition, and my affidavit, was intended solely to move along the statutorily mandated process of the NRCs assessment of DOEs application. The affidavit did not speak to any issue that is material to the merits of the NRCs evaluation of the application.

Nevada also contends that my affidavit contested the merits of the proceeding, in violation of section 455(b)(3).29 Specifically, Nevada asserts that my affidavit concerned the 26 Id. at 4-5.

27 See Ctr. for Auto Safety v. FTC, 586 F. Supp. 1245, 1250 (D.D.C. 1984) (If one member of [a regulatory] commission is disqualified or recused, he cannot, under the law, be replaced and the body may thus be left unable to make an effective decision by virtue of an even split. For that reason, there may remain here, unlike in the judicial area, vestiges of a duty to sit. (internal citations and quotation marks omitted)); Washington v. Dept of Interior, 81 M.S.P.R. 101, 104 (1999) (There is no requirement that the [Merit Systems Protection Board] be bound by the federal judicial rule [on judicial disqualification], inasmuch as it is not a court.).

28 See 42 U.S.C. § 10134(b), (d).

29 Motion at 5.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 7 of 22 merits of one of the contentions admitted by the Board, NEV-NEPA-22.30 In NEV-NEPA-22, Nevada argued that DOEs final environmental impact statement should not be adopted by the NRC because its discussion does not adequately describe the no-action alternative.31 Nevada claims that a statement in my affidavit reflects apparent approval of DOEs analysis of the no-action alternative.32 Contrary to Nevadas argument, my affidavit did not vouch for the adequacy of DOEs analysis of the no-action alternative or in any way suggest that the no-action alternative constituted an accurate assessment of what impacts would occur without the licensing of a repository. I included this provision in order to demonstrate the potential harm, sufficient to establish standing, that could result from a continued lack of a long-term nuclear waste storage solution.33 I had not at the time read Nevadas intervention petition (or reviewed any other contention in the case) and was unaware of NEV-NEPA-22. Indeed, aside from reading Nevadas contention for the purpose of responding to this motion, I have not reviewed the adjudicatory record and have formed no views on any of the challenges posed to the application. Accordingly, I see no reason to recuse myself based on 28 U.S.C. § 455(b)(3).

Nevada also argues for my recusal based on 28 U.S.C. § 455(b)(2), which requires recusal of a federal judge where in private practice he served as a lawyer in the matter in controversy. Nevada claims, based on case law from the Atomic Safety and Licensing Appeal 30 Id.

31 See State of Nevadas Petition to Intervene as a Full Party (Dec. 19, 2008), at 1132-35.

32 Nevada cites the affidavit at 6 but appears to be referencing the affidavits paragraph 8, at page 5. Motion at 5; see NARUC Petition, Attach. 1, Affidavit ¶ 8 (citations omitted).

33 This is hardly a controversial proposition, and not one for which DOEs no-action alternative provides the only proof. The Commission itself has acknowledged that storing waste at the site of nuclear power plants on an indefinite basis will have environmental impacts. See Continued Storage of Spent Nuclear Fuel; Final Rule, 79 Fed. Reg. 56,238 (Sept. 19, 2014); Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Final Report),

NUREG-2157, vols. 1 & 2 (Sept. 2014) (ADAMS Accession No. ML14196A105 and ML14196A107).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 8 of 22 Board, that this statutory provision applies to an adjudicator versed in a scientific discipline rather than in the law if that adjudicator previously provided technical services to one of the parties in connection with the matter in controversy.34 Accordingly, Nevada asserts, a non-lawyer Commissioner is subject to disqualification under 28 U.S.C. § 455(b)(2) whenever a lawyer would be disqualified under that same provision.35 Here again, Nevadas inaccurately characterizes my limited role in NARUCs petition. I did not provide technical services to NARUC in connection with the Yucca Mountain adjudicatory proceeding or engage in any way with the substance of the application. As noted above, my involvement related only to the peripheral issue of whether DOE was authorized to withdraw its application. Accordingly, I decline to recuse myself based on 28 U.S.C. § 455(b)(2).

Nevada also argues that I should recuse myself by citing two federal cases.36 First, in Williams v. Pennsylvania, a judge was disqualified from participating in a case in which he previously served as a supervisory prosecutor and had authorized the prosecution to seek the death penalty.37 There, the United States Supreme Court held that there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendants case.38 The Court explained that [n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision such as the decision to seek the death penalty.39 Nevada cites Williams without attempting to explain how those facts relate to my participation. My involvement with NARUCs 34 Motion at 6 (quoting Public Service Electric & Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 23 (1984) (internal quotation marks omitted)).

35 Id.

36 Id. at 7.

37 Id. (citing Williams v. Pennsylvania, 136 S. Ct. 1899 (2016)).

38 Williams, 136 S. Ct. at 1905.

39 Id. at 1906; see id. at 1907.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 9 of 22 petition to intervene is clearly distinguishable from the circumstances described in Williams; as stated previously, I provided an affidavit that helped NARUC establish standing to intervene on a limited issue unrelated to the merits of the application under adjudication and had no significant, personal involvement in the adjudication. Accordingly, Nevada does not demonstrate how Williams would compel me to recuse myself.

Second, Nevada cites TWA v. Civil Aeronautics Board, in which the court stated that

[t]he fundamental requirements of fairness require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleadings or briefs, take no part in the decision of that case by any tribunal on which he may thereafter sit.40 In TWA, the individual sought to be recused had served as the attorney signing the brief on behalf of the government.41 Here again, Nevada cites TWA without attempting to explain how the circumstances of that case relate to my participation in the Yucca mountain proceeding. In my view, providing an affidavit to demonstrate representational standing is not equivalent to the signature of legal counsel representing a party on a brief. Legal counsel is responsible for formulating litigation strategy and advocating for merits positions in a case. The role of counsel is far broader than that of a procedural affiant who participates solely with respect to a limited issue unrelated to the technical merits of the case. Nevadas citation to TWA does not convince me otherwise.

In sum, Nevada does not explain how my limited participation as an affiant for representational standing approaches the circumstances described in Williams and TWA.

Considering the facts and circumstances surrounding my participation in the administrative adjudication (solely with respect to a secondary issue), a reasonable person would not conclude 40 Motion at 7 (quoting TWA v. Civil Aeronautics Bd., 254 F.2d 90, 91 (D.C. Cir. 1958)).

41 See TWA, 254 F.2d at 91.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 10 of 22 that my participation in the NARUC filing demonstrates prejudgment of the issues that would remain before the Commission in the event the adjudication were recommenced.

2. Public Statements Nevada also asserts that my previous public statements with respect to Yucca Mountain warrant my recusal pursuant to 28 U.S.C. § 455(a), which requires recusal of a [f]ederal judge whenever his impartiality might reasonably be questioned.42 Nevada argues that remarks I made prior to and following DOEs submission of its application to the NRC demonstrate bias in favor of the application.43 For example, Nevada objects to my 2005 announcement of the formation of the Yucca Mountain Task Force and my participation on the Task Force;44 it argues that the following statement demonstrates bias:

The key activities of the Task Force will include [p]roviding a fresh new voice to the critical importance of expeditious implementation of the Yucca Mountain program given vital economic, energy and national security considerationsas well as the importance of progress on Yucca Mountain to new nuclear energy plant operation.45 As an initial matter, my role at the time I made the statements to which Nevada objects must be understoodas a public utility commissioner, my general policy views reflected the interests of South Carolina ratepayers, who faced increased costs due to the lack of a long-term nuclear waste storage solution.46 Based on that perspective, I intended those statements to provide 42 Motion at 7 (quoting 28 U.S.C. § 455(a)).

43 Id. at 8-10.

44 Id. at 8.

45 Id., Ex. 2, Statement by David A. Wright, Commr, S.C. Pub. Service Commn & Chairman Yucca Mountain Task Force (Task Force Announcement).

46 See NARUC Petition, Attach. 1, Affidavit ¶ 12 (noting the high cost to ratepayers due to the lack of a high-level waste repository and stating that [a]s State Commissioners, my NARUC colleagues across the country and I have an obvious interest in this proceedingprotecting ratepayers).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 11 of 22 general support for the furtherance of the process set forth in the NWPA. While I advocated for the federal government to follow the process set forth in the NWPA, I had formed no opinions on the suitability of the Yucca Mountain site from a safety or environmental perspective. Moreover, I emphasized that the construction and operation of the facility must comport with NRCs public health and safety standards.47 Nevada suggests that my public statement following DOEs submission of its application for Yucca Mountain to the NRC shows prejudgment of the merits of the application.48 But the very language Nevada quotes demonstrates that I had not presupposed that the facility would be licensed. I stated that all roads eventually lead to the need for a national repository like Yucca Mountain if were going to continue to operate current plants and build a new generation of nuclear energy plants.49 My wording here, a national repository like Yucca Mountain shows that I was expressing my view of the importance of a geologic repositorynot necessarily at Yucca Mountainfor the continued operation of nuclear power plants and the development of new nuclear energy technologies.

Nevada objects to congressional correspondence and testimony commenting favorably on Yucca Mountain as a long-term nuclear waste storage solution.50 Specifically, it points to a letter in which I stated (as co-sponsor) that we believe the best candidate for an interim storage or early receipt facility is Yucca Mountain. Clearly this highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface 47 Motion, Ex. 2, Task Force Announcement at 1.

48 Id. at 9 (quoting id., Ex. 5, Statement of the Honorable David Wright, Commr, S.C. Pub.

Serv. Commn & Co-Chair, Yucca Mountain Task Force (June 4, 2008)).

49 Id. (emphasis added).

50 Id. at 9-10.

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 12 of 22 facilities at Yucca Mountain.51 The context for this remark is important; as stated above, the law requires that DOE apply for a construction authorization permit for a repository at Yucca Mountain and for the NRC to consider DOEs application. I intended my statement to reflect the legal framework surrounding our nations nuclear waste storage policy and to urge that the country move forward with the process for ascertaining whether Yucca Mountain is a suitable site.

Nevada also challenges congressional testimony in which I stated that we believe that the license application shows that Yucca Mountain will meet the requirements of the NWPA and regulations.52 But here again, context for my statement is important. While my first impression of the application was favorable, I had not (and still have not) had the opportunity to consider the various contentions raised with the application and I remain open-minded as to whether or not the record will suggest otherwise.53 And in any case, I acknowledged that a Plan B may be necessary, precisely because it is possible that the Yucca Mountain site may not meet regulatory requirements. I went on to state that [i]f Yucca Mountain cannot be licensed through the NRC process, or is licensed but not built, we interpret NWPA as still requiring DOE to 51 Id. at 9 (quoting id., Ex. 3, Letter from Charles P. Pray and David A. Wright, Yucca Mountain Task Force, to the Honorable Joe Barton, Chairman, House Energy and Commerce Comm.

(June 10, 2005), at 1); see also id. (citing id., Ex. 4, Joint Statement by Hon. David Wright, Commr, S.C. Pub. Serv. Comm. and Hon. Charles Pray, Nuclear Safety Advisor, State of Me. &

Co-Chairman, Yucca Mountain Task Force (May 25, 2005)); id. at 10 (quoting id., Ex. 10, Recommendations of the Blue Ribbon Commission on Americas Nuclear Future, Hearing Before the Subcomm. on Envt and the Econ. of the Comm. on Energy and Commerce, H.R.,

112th Cong. 137 (2012) (statement of David A. Wright, President, National Association of Regulatory Utility Commrs)).

52 Id. at 10 (quoting id., Ex. 8, Budget Implications of Yucca Mountain, Hearing Before the Comm. on the Budget, H.R., 111th Cong. 44, 46 (2010) (statement of David A. Wright, Vice Chairman, Public Service Commission of South Carolina) (2010 Hearing)).

53 See Zen Magnets, LLC v. CPSC, 2018 WL 2938326, 13-14 (D. Colo. 2018) (finding that a Commissioner who had made statements that demonstrated an irrevocably closed mind should be disqualified but noting that disqualification was not required for another Commissioner who [left] open the possibility that her opinion could be swayed).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 13 of 22 develop and dispose of spent nuclear fuel in a geologic repository.54 Indeed, I specifically contemplated the possibility that Yucca Mountain might not meet applicable safety and environmental requirements.55 Nevada further points to my statement to Congress that the proposed Yucca Mountain repository remains the nations best hope for promptly developing geologic disposal.56 My statement reflects that the NWPA designated Yucca Mountain as the only potential repository; given that designation, Yucca Mountain would have to be the promptest geologic repository possible. These remarks were not intended to prejudge the adequacy of DOEs application or the NRC Staffs evaluation of the application but to advocate for continued progress within the framework set forth in the NWPA. My statements were intended to serve as general support for the establishment of a high-level waste repository as a policy matter; they were not the result of review or analysis of the particular technical issues raised by DOEs application in particular.

None of these prior expressions of opinion are grounds for disqualification. And as noted above, I acknowledged that Yucca Mountain must meet regulatory requirements.

As explained previously, agency officials are presumed to be objective and capable of judging a controversy fairly and this presumption cannot be rebutted with a mere showing that an official has taken a public position, or has expressed strong views, or holds an underlying philosophy with respect to an issue in dispute.57 Further, an agency official should be 54 Motion, Ex. 8, 2010 Hearing at 44, 46.

55 Id., Ex. 8, 2010 Hearing at 50 ([W]e were encouraging working alongside the Department of Energy and pushing forward trying to get a license application submitted so that we could move forward and get the process started and consider the science of Yucca Mountain. If science proves it is not workable, then it is not, and then the Congress can do what they want.).

56 Id. at 10 (quoting Ex. 9, The Nuclear Waste Administration Act, Hearing Before the Comm. on Energy and Nat. Res., U.S. S., 112th Cong. 70 (2012) (statement of David A. Wright, Chairman, South Carolina Public Service Commission, Nuclear Waste Strategy Coalition)).

57 NIRS, 509 F.3d at 571 (quoting United Steelworkers of Am., 647 F.2d at 1208).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 14 of 22 disqualified only where a disinterested observer may conclude that the official has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.58 Nevadas motion relies on the mistaken notion that I have somehow prejudged DOEs license application. At the time I made the statements to which Nevada objects, I had notand as of this date still have notconsidered DOEs license application; indeed, several of the statements Nevada references predate the submission of the application to the NRC. I can state without hesitation that I have not prejudged the technical, policy, or legal issues in this licensing proceeding. In fact, I have not considered the merits of the application, looked at the NRC Staffs safety or environmental reviews (neither of which had been issued at the time I made my statements), or considered how to apply the law or NRC regulations to determine the adequacy of the application. I have not made up my mind on any of the issues raised by the application.

Nevada confuses my public statements with regulatory decision-making in an adjudicatory proceeding on a license application. While I previously expressed generalized support for the establishment of a high-level waste repository as a policy matter, this support in no way presupposes my actions on a licensing decision, the details of which I was unaware. In reaching a licensing decision, the Commission is required to review each position advanced by the litigants and determine whether the application satisfies regulatory requirements. I state unequivocally that I have formed no opinions as to the adequacy of DOEs license application or the NRC Staffs safety or environmental review. I understand that the NRC Staff and the Commission will need to consider whether the Yucca Mountain site is suitable from a safety and environmental perspective; if not, a different long-term nuclear waste storage solution will be needed.

58 Id. (quoting Cinderella, 425 F.2d at 591).

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 15 of 22 When exercising the Commissions quasi-judicial role, it is my responsibility to weigh the evidence and arguments impartially, and to render my decision solely on the adjudicatory record and the applicable law, taking into account the views of all parties. I intend to exercise that responsibility consistent with my sworn duty to faithfully execute the laws of the United States, in this matter, and in every matter that comes before me.

III. CONCLUSION I have carefully considered the Motion seeking my disqualification from participating in this proceeding and the applicable legal standards. I find no basis requiring my recusal or disqualification, and therefore deny the motion.

/RA/

David A. Wright Dated at Rockville, Maryland, this 2nd day of July, 2018 (Page 129 of Total)

USCA Case #18-1232 DocumentUNITED STATES OF AMERICA

1. 1755212 Filed: 10/15/2018 Page 16 of 22 NUCLEAR REGULATORY COMMISSION In the Matter of )

)

U.S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW (High-Level Waste Repository) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT have been served upon the following persons by Electronic Information Exchange and by e-mail.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board (ASLBP) Office of the General Counsel Mail Stop T-3F23 Mail Stop O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Carrie Safford, Esq.

Construction Authorization Board 04 (CAB04) carrie.safford@nrc.gov Thomas S. Moore, Chair Jessica Bielecki, Esq.

Administrative Judge jessica.bielecki@nrc.gov thomas.moore@nrc.gov Paul S. Ryerson Administrative Judge OGC Mail Center paul.ryerson@nrc.gov OGCMailCenter@nrc.gov Richard E. Wardwell Administrative Judge U.S. Nuclear Regulatory Commission richard.wardwell@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-7H4M Washington, DC 20555-0001 OCAA Mail Center ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-4F00 Washington, DC 20555-0001 Hearing Docket hearingdocket@nrc.gov (Page 130 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 17 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT U.S. Department of Energy Counsel for U.S. Department of Energy Office of General Counsel Morgan, Lewis & Bockius LLP 1000 Independence Avenue S.W. 1111 Pennsylvania Ave., NW Washington, DC 20585 Washington, DC 20004 Martha S. Crosland, Esq. Lewis M. Csedrik, Esq.

martha.crosland@hq.doe.gov lcsedrik@morganlewis.com Nicholas P. DiNunzio, Esq. Thomas D. Poindexter, Esq.

nick.dinunzio@rw.doe.gov tpoindexter@morganlewis.com James Bennett McRae Alex S. Polonsky, Esq.

ben.mcrae@hq.doe.gov apolonsky@morganlewis.com Cyrus Nezhad, Esq. Thomas A. Schmutz, Esq.

cyrus.nezhad@hq.doe.gov tschmutz@morganlewis.com Christina C. Pak, Esq. Paul J. Zaffuts, Esq.

christina.pak@hq.doe.gov pzaffuts@morganlewis.com Andrea Preate-Regni, Esq.

Office of Counsel, Naval Sea Systems Command apreate-regni@morganlewis.com Nuclear Propulsion Program Shannon Staton, Legal Secretary 1333 Isaac Hull Avenue, SE, Building 197 sstaton@morganlewis.com Washington, DC 20376 Elaine M. Hirsch, Legal Secretary Frank A. Putzu, Esq. ehirsch@morganlewis.com frank.putzu@navy.mil For U.S. Department of Energy Talisman International, LLC 1000 Potomac St., NW, Suite 300 Washington, DC 20007 Patricia Larimore, Senior Paralegal plarimore@talisman-intl.com 2

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 18 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT Counsel for State of Nevada Nye Co. Nuclear Waste Repository Project Office Egan, Fitzpatrick, Malsch & Lawrence, PLLC 2101 E. Calvada Boulevard, Suite 100 1750 K Street, NW, Suite 350 Pahrump, NV 89048 Washington, DC 20006 Celeste Sandoval, Quality Assurance Records Spec.

Martin G. Malsch, Esq. csandoval@co.nye.nv.us mmalsch@nuclearlawyer.com Susan Montesi:

smontesi@nuclearlawyer.com Counsel for Lincoln County, Nevada Whipple Law Firm Counsel for State of Nevada 1100 S. Tenth Street Egan, Fitzpatrick, Malsch & Lawrence, PLLC Las Vegas, NV 89017 7500 Rialto Boulevard Annie Bailey, Legal Assistant Building 1, Suite 250 baileys@lcturbonet.com Austin, TX 78735 Adam L. Gill, Esq.

Charles J. Fitzpatrick, Esq. adam.whipplelaw@yahoo.com cfitzpatrick@nuclearlawyer.com Eric Hinckley, Law Clerk John W. Lawrence, Esq. erichinckley@yahoo.com jlawrence@nuclearlawyer.com Bret Whipple, Esq.

Laurie Borski, Paralegal bretwhipple@nomademail.com lborski@nuclearlawyer.com Lincoln County District Attorney Bureau of Government Affairs P. O. Box 60 Nevada Attorney General Pioche, NV 89403 100 N. Carson Street Gregory Barlow, Esq.

Carson City, NV 89701 lcda@lcturbonet.com Marta Adams, Chief Deputy Attorney General madams@ag.nv.gov Lincoln County Nuclear Oversight Program P.O. Box 1068 Nevada Agency for Nuclear Projects Caliente, NV 89008 Nuclear Waste Project Office Connie Simkins, Coordinator 1761 East College Parkway, Suite 118 connie@lcnop.com Carson City, NV 89706 Steve Frishman, Tech. Policy Coordinator For Lincoln County, Nevada steve.frishman@gmail.com Intertech Services Corporation Susan Lynch, Administrator of Technical Prgms PO Box 2008 szeee@nuc.state.nv.us Carson City, NV 89702 Mike Baughman, Consultant mikebaughman@charter.net Nye County Regulatory/Licensing Advisor 18160 Cottonwood Rd. #265 Counsel for Nye, County, Nevada Sunriver, OR 97707 601 Pennsylvania Avenue NW Malachy Murphy, Esq. North Building, Suite 1000 mrmurphy@chamberscable.com Washington, DC 20004 Robert Andersen, Esq.

randersen@clarkhill.com Christopher Clare, Esq.

cclare@clarkhill.com 3

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 19 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT Clark County, Nevada For Eureka County, Nevada 500 S. Grand Central Parkway NWOP Consulting, Inc.

Las Vegas, NV 98155 1705 Wildcat Lane Phil Klevorick, Sr. Mgmt Analyst Ogden, UT 84403 klevorick@clarkcountynv.gov Loreen Pitchford, Consultant Elizabeth A. Vibert, Deputy District Attorney nwop@comcast.net Elizabeth.Vibert@ClarkCountyDA.com Eureka County Public Works Counsel for Eureka County, Nevada PO Box 714 Harmon, Curran, Speilberg & Eisenberg, LLP Eureka, NV 89316 1726 M Street N.W., Suite 600 Ronald Damele, Director Washington, DC 20036 rdamele@eurekanv.org Diane Curran, Esq.

dcurran@harmoncurran.com Counsel for Churchill, Esmeralda, Lander, and Mineral Counties, Nevada Eureka County, Nevada Office of the District Attorney Armstrong Teasdale, LLP 701 S. Main Street, Box 190 3770 Howard Hughes Parkway Eureka, NV 89316-0190 Suite 200 Theodore Beutel, District Attorney Las Vegas, NV 89169 tbeutel.ecda@eurekanv.org Tara Baugh tbaugh@armstrongteasdale.com Nuclear Waste Advisory for Eureka County, Nevada Kolesar & Leatham 1983 Maison Way 400 S. Rampart Boulevard Carson City, NV 89703 Suite 400 Abigail Johnson, Consultant Las Vegas, NV 89145 eurekanrc@gmail.com Robert F. List, Esq.

rlist@klnevada.com For White Pine County, Nevada Esmeralda County Repository Oversight Program-Intertech Services Corporation Yucca Mountain Project PO Box 2008 PO Box 490 Carson City, NV 89702 Goldfield, NV 89013 Mike Baughman, Consultant Edwin Mueller, Director mikebaughman@charter.net muellered@msn.com Mineral County Nuclear Projects Office P.O. Box 1600 Hawthorne, NV 89415 Linda Mathias, Director yuccainfo@mineralcountynv.org For Lincoln and White Pine County, Nevada Jason Pitts, LSN Administrator P.O. Box 126 Caliente, NV 89008 jayson@idtservices.com 4

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 20 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT For White Pine County, Nevada California Energy Commission Michael Wheable, District Attorney 1516 Ninth Street 801 Clark Street, Suite 3 Sacramento, CA 95814 Ely, NV 89301 Kirk C. Oliver, Esq.

mwheable@whitepinecountynv.gov Senior Staff Counsel kirk.oliver@energy.ca.gov White Pine Co. Nuclear Waste Project Ofc 959 Campton Street California Department of Justice Ely, NV 89301 Office of the Attorney General Mike Simon, Director 1515 Clay Street, 20th Fl, PO Box 70550 wpnucwst1@mwpower.net Oakland, CA 94612-0550 Timothy E. Sullivan, Deputy Attorney General Counsel for Inyo County, California timothy.Sullivan@doj.ca.gov Gregory L. James, Attorney at Law 712 Owens Gorge Road California Department of Justice HC 79, Box Office of the Attorney General Mammoth Lakes, CA 93546 300 S. Spring Street, Suite 1702 E-Mail: gljames@earthlink.net Los Angeles, CA 90013 Megan Hey, Esq.

Counsel for Inyo County, California megan.hey@doj.ca.gov Law Office of Michael Berger 479 El Sueno Road Santa Barbara, CA 93110 Counsel for State of South Carolina Michael Berger, Esq. Davidson & Lindemann, P.A.

michael@lawofficeofmichaelberger.com 1611 Devonshire Drive Robert Hanna, Esq. P.O. Box 8568 robert@lawofficeofmichaelberger.com Columbia, SC 29202 Kenneth P. Woodington, Esq.

Inyo Co Yucca Mtn Repository Assessment Ofc kwoodington@dml-law.com P. O. Box 367 Independence, CA 93526-0367 Cathreen Richards, Associate Planner Counsel for Aiken County, SC crichards@inyocounty.us Haynsworth Sinkler Boyd, PA 1201 Main Street, Suite 2200 P. O. Box 11889 Counsel for State of Washington Columbia, SC 29211-1889 Office of the Attorney General Thomas R. Gottshall, Esq.

P. O. Box 40117 tgottshall@hsblawfirm.com Olympia, WA 98504-0117 Ross Shealy, Esq.

Todd R. Bowers, Esq. rshealy@hsblawfirm.com toddb@atg.wa.gov Andrew A. Fitz, Esq.

andyf@atg.wa.gov Michael L. Dunning, Esq.

michaeld@atg.wa.gov H. Lee Overton, Esq.

leeo1@atg.wa.gov Danielle French, Esq.

daniellef@atg.wa.gov Teresa Trippel, Esq.

teresat@atg.wa.gov 5

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 21 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT Florida Public Service Commission Nuclear Energy Institute Office of the General Counsel Office of the General Counsel 2540 Shumard Oak Boulevard 1776 I Street, NW Suite 400 Tallahassee, FL 32303 Washington, DC 20006-3708 Samantha M. Cibula, Esq. Jerry Bonanno, Esq.

scibula@psc.state.fl.us jxb@nei.org Anne W. Cottingham, Esq.

Counsel for Native Community Action Council awc@nei.org Alexander, Berkey, Williams & Weathers LLP Ellen C. Ginsberg, Esq.

2030 Addison Street, Suite 410 ecg@nei.org Berkeley, CA 94704 Curtis G. Berkey, Esq. Counsel for Nuclear Energy Institute cberkey@abwwlaw.com Pillsbury Winthrop Shaw Pittman LLP Rovianne A. Leigh, Esq. 1200 Seventeenth Street NW rleigh@berkeywilliams.com Washington, DC 20036 Scott W. Williams, Esq. Jay E. Silberg, Esq.

swilliams@abwwlaw.com jay.silberg@pillsburylaw.com Timothy J.V. Walsh, Esq.

Native Community Action Council timothy.walsh@pillsburylaw.com P.O. Box 140 Baker, NV 89311 Counsel for Nuclear Energy Institute Ian Zabarte, Member of Board of Directors Winston & Strawn LLP mrizabarte@gmail.com 1700 K Street, N.W.

Washington, DC 20006-3817 William A. Horin, Esq.

Counsel for Prairie Island Indian Community whorin@winston.com Public Law Resource Center PLLC David A. Repka, Esq.

505 N. Capitol Avenue drepka@winston.com Lansing, MI 48933 Carlos L. Sisco, Senior Paralegal Don L. Keskey, Esq. csisco@winston.com donkeskey@publiclawresourcecenter.com Prairie Island Indian Community Legal Department Counsel for National Association of Regulatory 5636 Sturgeon Lake Road Utility Commissioners (NARUC)

Welch, MN 55089 1101 Vermont Avenue NW, Suite 200 Philip R. Mahowald, Esq. Washington, DC 20005 pmahowald@piic.org James Ramsay, Esq.

jramsay@naruc.org Robin Lunt, Esq.

rlunt@naruc.org 6

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USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 22 of 22 U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW DECISION ON THE MOTION OF THE STATE OF NEVADA FOR RECUSAL OF COMMISSIONER DAVID A. WRIGHT Counsel for Joint Timbisha Shoshone Tribal Group For Joint Timbisha Shoshone Tribal Group Fredericks, Peebles, & Morgan LLP Indian Village Road, P.O. Box 206 1001 Second St. Death Valley, CA 92328-0206 Sacramento, CA 95814 Joe Kennedy, Executive Director Felicia M. Brooks, Data Administrator joekennedy08@live.com fbrooks@ndnlaw.com Tameka Vazquez, Bookkeeper Ross D. Colburn, Law Clerk purpose_driven12@yahoo.com rcolburn@ndnlaw.com Sally Eredia, Legal Secretary seredia@ndnlaw.com Darcie L. Houck, Esq.

dhouck@ndnlaw.com Brian Niegemann, Office Manager bniegemann@ndnlaw.com John M. Peebles, Esq.

jpeebles@ndnlaw.com Robert Rhoan, Esq.

rrhoan@ndnlaw.com Fredericks, Peebles, & Morgan LLP 3610 North 163rd Plaza Omaha, NE 68116 Shane Thin Elk, Esq.

sthinelk@ndnlaw.com

[Original Signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 2nd day of July, 2018 7

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