Nye County in Nevada, Aiken County in South Carolina, and the state of South Carolina are asking a US appeals court to reverse its decision rejecting some of their legal challenges to NRC Chairwoman Allison Macfarlane's refusal to recuse herself from commission decisions related to the agency's resumed review of DOE's license application for a proposed nuclear waste repository in Yucca Mountain, Nevada.
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The US Court of Appeals for the District of Columbia Circuit on October 22 denied a request by the counties and South Carolina that the court order Macfarlane to recuse or disqualify herself from all Yucca-related decisions. The court said the petitioners had not shown a "clear and disputable right" to such relief.
The counties and state filed a petition with the court September 26, saying they doubted Macfarlane's ability to be impartial on Yucca Mountain licensing issues because of criticisms she had voiced about the site as an academic or independent consultant before joining the commission in 2012. In response to a similar challenge Nye County filed with the NRC in September, Macfarlane said that "[a]cademic work performed on the basis of data available in the early 2000s is not a basis for recusal now."
In a petition filed with the court Thursday, the counties and South Carolina requested a summary reversal of the October decision, saying that "Macfarlane's refusal to recuse herself violates NRC's rules for mandatory recusal under the 'disinterested observer' standard and was an abuse of discretion."
The petition said "a visual comparison" of Macfarlane's opinions on some issues related to the suitability of Yucca Mountain to host a repository -- as expressed in a 2006 book she edited on the subject -- "with those of the license applicant (DOE) and the principal opponent of the license (Nevada) demonstrate that any objective observer would conclude she has made up her mind on several dispositive issues in the NRC Yucca Mountain license proceeding."
Some of those issues include the suitability of computer modeling used by DOE to support its application, whether "the Yucca Mountain region is seismically and volcanically inactive" and whether "natural and engineered barriers are adequate protection" at the site, the petition said.
Macfarlane and NRC have yet to file a response to the petition. Oral arguments have not been requested or scheduled in the case, and there is no public schedule for a decision in the matter.