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Originally published Monday, October 18, 2010 at 4:10 PM

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NRC Chairman is bending rules in Yucca Mountain proceeding

Nuclear Regulatory Commission Chairman Gregory B. Jaczko directed scientists to stop work on the Yucca Mountain repository even though his licensing board said the Obama administration didn't have the authority to do so. The NRC should let the federal courts decide.

THE shenanigans at the Nuclear Regulatory Commission over shutting down the nation's high-level nuclear waste repository have gone beyond suspicious to downright brazen.

Despite the NRC's own licensing board ruling that says the Obama administration does not have the authority to shut down Yucca Mountain unilaterally, NRC Chairman Gregory B. Jaczko directed scientists to stop work on a nearly finished evaluation of the project. Two of the five commissioners unsuccessfully challenged Jaczko's tactic late last week.

In 1987, Congress designated Yucca Mountain as the geological repository for the nation's commercial nuclear waste, not to mention tons of Cold War-era nuclear defense waste that otherwise would be marooned at sites like Hanford in Southeast Washington.

Jaczko is shutting Yucca down despite:

• The NRC's Atomic Licensing and Safety Board ruling that the Obama administration does not have the authority to flout the will of Congress and withdraw the two-year-old license application for the project;

• A letter signed by more than 90 members of Congress from both parties, including Sen. Patty Murray, D-Wash., and other key appropriators, saying the same thing;

• Pending litigation by Washington, South Carolina and others before the D.C. Circuit Court of Appeals. In good faith, the court said it would wait until the NRC ruled, but Jaczko sits on the serious quasi-judicial question before the commission while he shuts down Yucca.

Oh, but then there is that Nevada election where Jaczko's former boss, Sen. Harry Reid, is in the fight of his life with a Republican who has drawn dead even in the polls. No, wouldn't look good for Reid to lose his fight to stop Yucca now.

Jaczko's opposition to Yucca Mountain is so well-known that at his confirmation hearing in 2005 he pledged not to vote on the issue for at least a year. Probably wasn't long enough.

Three of his NRC colleagues at their February Senate confirmation hearing affirmed they would not second-guess the Obama administration's unilateral decision. All three and Jaczko should have recused themselves from the decision, but only one did.

Jaczko's inaction is particularly confounding because of the NRC's earlier urgency on the matter. In a rush last spring, the NRC told the Atomic Licensing Safety Board to hurry its ruling on the question of whether the Obama administration could unilaterally kill Yucca Mountain.

The board returned its decision, including briefings and oral arguments, in less than two months. But three months later, plaintiffs and their lawyers are still waiting while Jaczko shuts Yucca down.

The NRC's conduct on this issue has been suspect from the beginning, and Jaczko's apparent reticence to issue a ruling makes it more so. At the very least, the agency's inspector general should review Jaczko's conduct, as a former commissioner has requested.

The federal court put its proceedings on hold while the NRC deliberated. But the NRC has abused that deferral. Regardless of whether Jaczko gets around to issuing a ruling, the Circuit Court should take up the issue right away.

About $10 billion and 30 years of work are about to be squandered and a credible legal proceeding in the federal courts awaits.

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