August 23, 2013
Long-term storage of Hanford's waste victim of Obama, Reid electoral considerations

68 years ago, the brilliant Enrico Fermi and fellow scientists at Hanford successfully produced the site's first plutonium. Their product would soon power Trinity test bombs, the famed "Fat Man" bomb used on Nagasaki, and the bulk of America's nuclear Cold War arsenal.

Washington has paid a dear price for this particular contribution to our nation's World War II and Cold War efforts, with Hanford remaining an incredibly contaminated site. Nearly seven decades later after its first plutonium production, the clean-up at Hanford continues with no end in sight.

Years of delays and technological difficulties have plagued the clean-up effort, but one major stumbling block remaining was placed there very intentionally: America still lacks a permanent site to store nuclear waste, entirely due to electoral politics.

Which isn't to say our nation hasn't chosen a permanent site to store nuclear waste. It's supposed to be held deep inside Yucca Mountain in Nevada, but 26 years after Congress eliminated other options and specifically chose Yucca, and 11 years after Congress gave final approval to move forward with the Yucca project, political maneuverings by Senator Harry Reid and President Barack Obama have kept the project in limbo, not quite killed off but with no progress, no funding, and no future.

That Nevada's Harry Reid sees killing the Yucca project as necessary to his political survival is no surprise. Supporters in tourism-dependent Las Vegas, especially, don't want a nuclear waste storage site 100 miles away. In 2004, he successfully placed a former staffer, Gregory Jaczko, on the Nuclear Regulatory Commission (NRC). In 2007, Reid's elevation as Majority Leader afforded him the power to thwart Yucca at every chance.

Barack Obama in 2008, desirous of Nevada's electoral votes, said that efforts to build Yucca "have been an expensive failure and should be abandoned." (He also promised, "I will work with the industry and governors to develop a way to store nuclear waste safely while we pursue long-term solutions," evidence of which is tough to find.) He selected Jaczko, Reid's chosen surrogate, as NRC chairman in 2009 (Jaczko later resigned in 2012 after allegations of a tyrannical management style. The four other members of the commission, two from both parties, wrote the White House with serious concerns about Jaczko's performance).

Harry Reid and Barack Obama can play politics with the Yucca project, but doing so has meant ignoring the law and pretending that building a permanent nuclear storage facility is optional. It's not, and the State of Washington has prevailed in federal appeals court on this point:

By a 2-1 vote, the U.S. Court of Appeals for the District of Columbia ordered the commission to complete the licensing process and approve or reject the Energy Department's application for a never-completed waste storage site at Nevada's Yucca Mountain.

In a sharply worded opinion, the court said the nuclear agency was "simply flouting the law" when it allowed the Obama administration to continue plans to close the proposed waste site 90 miles northwest of Las Vegas. The action goes against a federal law designating Yucca Mountain as the nation's nuclear waste repository.

"The president may not decline to follow a statutory mandate or prohibition simply because of policy objections," Judge Brett M. Kavanaugh wrote in a majority opinion, which was joined Judge A. Raymond Randolph. Chief Judge Merrick B. Garland dissented.

George Will took up the cause in a column this week, noting:

The Nuclear Waste Policy Act of 1982 says the NRC "shall consider" the Yucca Mountain application to become a repository, and "shall" approve or disapprove the application within three years of its submission. "Shall" means "must." The application, submitted in June 2008, has not been acted upon, and the court said: "By its own admission, the Commission has no current intention of complying with the law."

Local papers have had their fill of illegal delays. The Tacoma News Tribune wrote that that the elections of Obama and Reid came before the law and nuclear safety, and that it's "all about politics, not science":

An unholy alliance between Harry Reid and Barack Obama continues to paralyze efforts to safely bury America's radioactive wastes. Their extra-legal attacks on the Nuclear Waste Policy Act aren't just dangerous, they also undermine the Constitution.

The Olympian concurred that politics came first:

When Nevada Sen. Harry Reid needed votes to win re-election in the 2006 [actually 2004] mid-term elections, he promised to kill the project. President Obama shamefully obliged the Democratic Senate Majority Leader by directing the Department of Energy (DOE) to withdraw its licensing application in 2010. That effectively shut down Yucca Mountain just when it was on the verge of accepting waste from sites like Hanford.

The situation is simply untenable. Obama, Reid, and the NRC must comply with the law, which should start with the NRC fulfilling its mandate to either license the Yucca project or reject it. Then, Reid must fund it and Obama must sign the appropriation. From a legal and moral perspective, doing nothing is no longer an option. Until Reid and Obama face that reality, you can just add it to the long list of broken federal promises about Washington's toxic Hanford site.

**Update**
Tri-City Herald: Yucca Mountain ruling about the law, not money
Spokesman Review: Heed court's order on nuke waste delay tactics
Everett Herald: No more Hanford delays
Seattle Times: NRC must finish work on Yucca Mountain nuclear-waste site
Christian Science Monitor: Yucca Mountain low
Pittsburgh Post-Gazette: Radioactive politics: A court rightly tells Obama to move on Yucca
New York Times: Time to Stop Stalling on Nuclear Waste

Posted by Adam Faber at August 23, 2013 01:57 PM | Email This
Comments
1. "Then, Reid must fund it and Obama must sign the appropriation."

It's been well-established that one Congress cannot compel a future Congress to do anything. If the current Congress decides not to fund a project, then that project goes without funds; it matters not at all if a previous Congress designated the project to be of vital national import, or whatever.

Someone yammering on about the Constitution should answer the simple question: in which branch does all taxation and appropriation power reside? Hint: it's not in a federal court.

Considering the GOP push to de-fund the ACA, this whole post comes across as ludicrous.

Posted by: tensor on August 23, 2013 05:42 PM
2. I fail to see how approving Yucca solves the problem of the leaking storage tanks at Hanford. They're two different issues. And for some strange reason the writer doesn't mention that the people of Nevada don't want their state used as a nuclear waste dump. He would have us believe that only Obama and Reid are holding it up.

Posted by: Roger Rabbit on August 23, 2013 06:06 PM
3. From the ruling:

In this case, however, the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process. Several justifications have been suggested in support of the Commission's actions in this case. None is persuasive.

First, the Commission claims that Congress has not yet appropriated the full amount of funding necessary for the Commission to complete the licensing proceeding. But Congress often appropriates money on a step-by-step basis, especially for long-term projects. Federal agencies may not ignore statutory mandates simply because Congress has not yet appropriated all of the money necessary to complete a project. See City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C. Cir. 1977) (when statutory mandate is not fully funded, "the agency administering the statute is required to effectuate the original statutory scheme as much as possible, within the limits of the added constraint"). For present purposes, the key point is this: The Commission is under a legal obligation to continue the licensing process, and it has at least $11.1 million in appropriated funds - a significant amount of money - to do so. See Commission Third Status Report, at 2 (Apr. 5, 2013).

Second, and relatedly, the Commission speculates that Congress, in the future, will not appropriate the additional funds necessary for the Commission to complete the licensing process. So it would be a waste, the Commission theorizes, to continue to conduct the process now. The Commission's political prognostication may or may not ultimately prove to be correct. Regardless, an agency may not rely on political guesswork about future congressional appropriations as a basis for violating existing legal mandates. A judicial green light for such a step - allowing agencies to ignore statutory mandates and prohibitions based on agency speculation about future congressional action - would gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive's power at the expense of Congress.

Third, the Commission points to Congress's recent appropriations to the Commission and to the Department of Energy for the Yucca Mountain project. In the last three years, those appropriations have been relatively low or zero. The Commission argues that those appropriations levels demonstrate a congressional desire for the Commission to shut down the licensing process.

But Congress speaks through the laws it enacts. No law states that the Commission should decline to spend previously appropriated funds on the licensing process. No law states that the Commission should shut down the licensing process. And the fact that Congress hasn't yet made additional appropriations over the existing $11.1 million available to the Commission to continue the licensing process tells us nothing definitive about what a future Congress may do. As the Supreme Court has explained, courts generally should not infer that Congress has implicitly repealed or suspended statutory mandates based simply on the amount of money Congress has appropriated. See TVA v. Hill, 437 U.S. 153, 190 (1978) (doctrine that repeals by implication are disfavored "applies with even greater force when the claimed repeal rests solely on an Appropriations Act"); United States v. Langston, 118 U.S. 389, 394 (1886) ("a statute fixing the annual salary of a public officer at a named sum . . . should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular fiscal years"); cf. 1 GAO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW at 2-49 (3d ed. 2004) ("a mere failure to appropriate sufficient funds will not be construed as amending or repealing prior authorizing legislation").

In these circumstances, where previously appropriated money is available for an agency to perform a statutorily mandated activity, we see no basis for a court to excuse the agency from that statutory mandate.

Posted by: Uh... on August 23, 2013 06:11 PM
4. @2, where do you think the waste in the tanks is supposed to go, Roger Rabbit? As the Spokane paper said, "The process of vitrification, turning the waste into glass logs, is only a partial solution, because the logs need to be safely stored for thousands of years."

Posted by: Uh... on August 23, 2013 07:52 PM
5. Here's some more background information on how little this "president" cares about the economy. The ineptness of this administration is too much to contrive it is not on purpose. But before the naysayers or accusers of conspiracy theorist shoot off their pieholes, take a look at the facts, from Steven Hayward;

"It is getting very tiring listening to Obama supporters try to claim that Obama has improved the economy. That is a false claim that is not even remotely close to reality. The following are 33 shocking facts (only 6 shown below) which show how badly the U.S. economy has tanked since Obama became president...

#1 When Barack Obama entered the White House, 60.6 percent of working age Americans had a job. Today, only 58.7 percent of working age Americans have a job.

#2 Since Obama has been president, seven out of every eight jobs that have been "created" in the U.S. economy have been part-time jobs.

#3 The number of full-time workers in the United States is still nearly 6 million below the old record that was set back in 2007.

#4 It is hard to believe, but an astounding 53 percent of all American workers now make less than $30,000 a year.

#5 40 percent of all workers in the United States actually make less than what a full-time minimum wage worker made back in 1968."

These facts are irrefutable. Wake up those voted for him in 2012, you have been duped big time or do you prefer being blissfully ignorant and stupid ?

Posted by: KDS on August 23, 2013 10:02 PM
6. @5 - 5 and not 6 facts were shown below.

Posted by: KDS on August 23, 2013 10:04 PM
7. What? No Dr. Steve, Mike B.S., or Demo Kid to scream "Adam Faber is a hack" or "Jim Miller is a hack" as they do with every post? That's what they live for, to yell hack over and over again, so what are you waiting for, guys? Get it over with so people can get back to normal discussion.

Posted by: katomar on August 24, 2013 08:59 AM
8. Katomar -- I already showed, in the very first comment, how Adam's commands do not follow from the ruling he cited, so perhaps the others are tactfully refraining from piling on.

Since another commenter quoted from the ruling at length without understanding the limits of that ruling, I'll make it explicit: the NRC can and should follow the court's ruling. If it finds the Yucca Mountain site deserves a license, the NRC should grant it one. None of those actions will have any effect on what the Congress decides to do; if Harry Reid does what his constituents want, he'll block funding for Yucca Mountain, and it will go unused.

Posted by: tensor on August 24, 2013 10:13 AM
9. "Long-term storage of Hanford's waste [a] victim of Obama, Reid electoral considerations"

Hanford!? Damn near everybody and everything in the country is a victim of that boob we have in the White House. Hanford is just the latest.

Posted by: Oscarphone on August 24, 2013 01:41 PM
10. @4 Cart. Horse.

Posted by: Roger Rabbit on August 24, 2013 03:32 PM
11. tensor: I could understand you being tagged as being tactful, but never, ever the Three Stooges.

Posted by: katomar on August 24, 2013 07:33 PM
12. "No Dr. Steve, Mike B.S., or Demo Kid to scream "Adam Faber is a hack" or "Jim Miller is a hack" as they do with every post?"

You're so full of it. I've probably used the word in only one comment since I've been posting here.

I respect what Mike does here, which includes calling out Adam as a GOP hack, which he is, of course. I don't see the problem with it myself. Consider this. Roger Rabbit has admitted many times that he's a Democratic Party hack and damned proud of it.

I respect Adam. I don't trash him. All I do is correct him when I see that he's wrong on something. As for you, you're a hate-filled idiot so I treat you like one.

Posted by: Doctor Steve on August 24, 2013 08:48 PM
13. @7: What? No Dr. Steve, Mike B.S., or Demo Kid to scream "Adam Faber is a hack" or "Jim Miller is a hack" as they do with every post?

I used to be better about that, but I've been pretty disappointed by Adam's quality of work. As much as I think that pudge and other (u)SP contributors are narrow-minded, most of them can make some good points. However, handing the reins over to Adam seems just like putting up a post by Cathy McMorris Rodgers -- it reduces this website to a mouthpiece for the WSRP.

And heck, I'd expect that many of the peanut gallery would object on that basis too. It seems that as long as the topic is to slam Obama, it doesn't matter who the source is or how weak the material is.

@9: Damn near everybody and everything in the country is a victim of that boob we have in the White House. Hanford is just the latest.

Man, it's a cloudy day! Must be Obama's fault. I have a headache! Must be Obama's fault! Whine.. whine... whine.

As to the actual content, Adam's a hack:

That Nevada's Harry Reid sees killing the Yucca project as necessary to his political survival is no surprise. Supporters in tourism-dependent Las Vegas, especially, don't want a nuclear waste storage site 100 miles away.

So... an elected representative of a given state is specifically given a mandate to OPPOSE a given project by his constituents, and some folks think that he should defy the will of the electorate? One of the reasons why Teabagger Sharron Angle didn't defeat Reid was because she supported Yucca Mountain; Harry Reid has been given clear direct to do whatever it takes to oppose this.

(And isn't this is exactly the same as a senator from Arizona opposing transportation of nuclear waste through his state?)

Long-term storage of nuclear waste is necessary -- even aside from power plants, there are plenty of other sources that need to be managed. However, Yucca Mountain fails to address the dangers of transporting nuclear material on a continuing basis, as well as the rise in such transport that a permanent site for such waste with promote.

Heck, if you think that a petroleum tank car blowing up Lac-M├ęgantic was bad, imagine the public outcry after an area is contaminated with nuclear waste from a derailment, either intentionally or unintentionally. If something like that happened, we'd be back at square one with any kind of real plan for managing waste.

If there are specific legal requirements in place, those should be followed. However, conflating that with good policy on nuclear waste is completely flawed.

Posted by: demo kid on August 25, 2013 08:42 AM
14. @7 katomar on August 24, 2013 08:59 AM,

When I first read this post of Adam Faber, HACK, I did not think it at all necessary to point out what a lame POS it was.
And when I read tensor's take down I thought even the (un)SP peanut gallery would see through its lame argument;
"Considering the GOP push to de-fund the ACA, this whole post comes across as ludicrous."

So, now that I've weighed in, how about you weigh in on the issue of Congress' responsibility to fund projects passed by a previous Congress?

After you've dealt with that, how about you also weigh in on any Congressman's responsibility to approve and fund the Federal Government making their state/district a nuclear waste dump despite the overwhelming disapproval of its citizens?
How you going to do that?

Frankly, safely ensconcing the nuclear waste at Hanford is a serious issue for the state of Washington.

Adam's "proposal" for resolution is yet another prime example of why the voters of Washington made the correct decision in not electing the man who hired Adam Faber, HACK, as his Policy Director.

Posted by: MikeBoyScout on August 25, 2013 09:40 AM
15. It seems government and partisan politics would be the last thing you would want to decide something like this. Good scientific knowledge and understanding of the risks never goes hand-in-hand with politics. Any decision they make is likely to be dead wrong, or only partially correct.

Meanwhile, nature will take its course, and dispose of this material in its own way. And who knows? Maybe that's the best way.

Posted by: KarlU on August 25, 2013 11:29 AM
16. @15 Yes, nature will render it harmless in a few million years. Until then, it's our problem.

Posted by: Roger Rabbit on August 25, 2013 01:15 PM
17. It seems to me the first step in dealing with nuclear waste is not creating more of it.

Posted by: Roger Rabbit on August 25, 2013 01:16 PM
18. Obama doesn't even know WHAT Hanford is...


http://www.youtube.com/watch?v=DlqGDdn9Saw

Posted by: Andy on August 25, 2013 07:54 PM
19. You can read about another important solution to both our need for a non-carbon energy source, and nuclear waste at energyfromthorium.com

Even many greens are on board with this solution. But you will still find idiots that comment here and our President tilting at windmills and solar, which do not have the energy density to solve anything.

Funny that although the typical progressive nut who comments here is unwilling to bury nuclear waste, they are more than willing to bury their heads in the ground with respect to physics and reality.

Posted by: Leftover on August 26, 2013 09:49 PM