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Appeals court dismisses Yucca Mountain lawsuit
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Jessica Ebelhar/Las Vegas Review-Journal
Members of the U.S. House Energy and Commerce Subcommittee on Environment and Economy are accompanied by their staff as the take a tour of the Yucca Mountain nuclear waste repository on April 26. » Buy this photo
STEPHENS WASHINGTON BUREAU
WASHINGTON -- A federal court on Friday dismissed a lawsuit that sought to keep alive the blueprint for burying nuclear waste in Nevada.
But while the ruling was a victory for the termination efforts of the state and the Obama administration, it focused attention -- yet again -- on the small federal agency that has become the center of controversy over the Yucca Mountain plan.
A three-judge panel said in a unanimous decision the lawsuit by the states of Washington and South Carolina and others challenging the shutdown of the Yucca project was premature until the Nuclear Regulatory Commission takes final actions that could bring it to an end.
The five-member NRC began considering last summer whether to allow the Department of Energy to take a final step to withdraw a 3-year-old license application. No final affirmation vote has been scheduled although commissioners cast initial votes in August.
"When we have an order to issue, we will issue an order," commission Chairman Gregory Jaczko said after a Capitol Hill appearance on June 16.
The passage of time has increased the focus on the agency, which has been put under a microscope for its handling of the Yucca issue.
The ruling by the U.S. Court of Appeals for the District of Columbia might provide only a reprieve in the legal battle over Yucca Mountain, as judges hinted that continued delays could make the NRC vulnerable to new legal challenges.
Writing the court's opinion, Chief Judge David Sentelle noted federal law gave the NRC three years to decide on a repository application. Some set that deadline at June 28, three years from the date when the Department of Energy submitted a license application in 2008. Others contend the clock started ticking on Sept. 15, 2008, when the NRC formally accepted the application for docketing.
Federal law allows the NRC to claim an additional year, but the agency is moving in the opposite direction to close out all its actions on high-level waste by this fall.
Sentelle suggested the states could revive their lawsuit if NRC fails to meet the deadline.
"Should the commission fail to act within the deadline specified" by the federal nuclear waste law, "petitioners would have a new cause for action," Sentelle wrote.
"We will not permit an agency to insulate itself from judicial review by refusing to act," he wrote.
Judge Janice Rogers Brown, in a short concurring opinion, said, "It is arguable the NRC has abdicated its statutory responsibility." She said plaintiffs missed an opportunity to press a stronger case against the NRC's failure to act.
The ruling brings to an end a case that was born after interests in states holding substantial caches of nuclear waste learned early in 2010 that the administration was shifting its decades-long focus away from the Yucca site, 100 miles northwest of Las Vegas.
Officials in Aiken County, S.C., and three business leaders from near Hanford, Wash., with the attorneys general of the two states, filed lawsuits that were later incorporated. They argued that terminating the site would leave millions of gallons of radioactive waste stranded in their states.
They also said the Department of Energy did not have the authority to shut down the project and withdraw its license application from the NRC.
Washington state Attorney General Rob McKenna said plaintiffs will review the ruling and decide a course.
"This case is far from over," McKenna said. "The court of appeals today ruled only that our suit is premature because the Nuclear Regulatory Commission has not issued a decision on the merits of the application to build the Yucca Mountian repository or on the Department of Energy's motion to withdraw that application."
The court made clear the NRC needs to act soon, said Charles Gray, executive director of the National Association of Regulatory Utility Commissioners, a group that monitors the Yucca project on behalf of utility ratepayers.
"While we are disappointed in this decision, the court makes it perfectly clear that the Nuclear Regulatory Commission must act in this case," Gray said. "Consumers of nuclear power have contributed more than $30 billion for the development of a nuclear-waste repository, and deserve prompt action by the NRC."
The lawsuit decided Friday was the only one pending against the Obama administration on Yucca Mountain, although lawyers say more will be filed whenever the Nuclear Regulatory Commission does issue an official decision on the project either way.
By erasing a legal challenge, the ruling gives a boost to Nevada in its efforts to see the Yucca project brought to a final halt, said Marta Adams, senior deputy attorney general.
The plaintiffs "were trying to push the envelope rather than wait until the NRC has finally ruled," Adams said. "This case was never ripe. If you follow these types of cases, you always wait until the final administrative body rules. That is fairly standard jurisprudence."
Sen. Harry Reid, D-Nev., called the decision "an important win in the long battle to put the ill-conceived Yucca Mountain project permanently to rest."
Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.
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It's amazing how everyone here fabricates their facts to support their arguements. And Tom Reynolds, you're right, everyone has the right to their freedom of speech, but I find it ironic how people abuse that right here by ridiculing others that have constructive ideas and suggestions.
Bad planning all around. The states that had nuclear power plants should have been making plans to handle the waste themselves. You don't build indoor plumbing first and then build the sewage treatment facility afterwards, IN ANOTHER STATE. Secondly, Nevada has been fighting this Yucca facility for 25 years. Back when it was first introduced, the vast majority of this entire state wanted nothing to do with this facility. That didn't stop the Feds from cramming it down our throats though. The Feds aimed the project at Nevada because we (I mean they, the Feds) had already been exploding nuclear bombs underground at the Nevada Test Site for years. But that was "out there", not here. Once the word got out that trucks and trains hauling the nuclear waste storage containers from other states would be traveling right through the middle of town, the general public and most of the politicians looking to get re-elected (aren't they all) said: "no way, not in my backyard". So Nevada fought this thing from every angle possible. The state even proved in court that the science behind placing the facility at Yucca was bogus, but that didn't stop the Feds from spending more of our money to try to place it here anyway. And they failed! Now it's a giant boondoggle that took 25 years to develop into ... nothing. Meanwhile the states that actually have nuclear power plants within THEIR borders are no closer to disposing of THEIR waste than they were 25 years ago. Such a waste of time and money. Those states should have seen the writing on the wall a long time ago and did something to solve THEIR problem. Same as then, they still should.
Because for years ratepayers that get at least a portion of their electric from nuclear plants have been paying an assesment on their bills for a storage sight in Nevada.
Why don't the states with nuke plants bury the waste in their OWN back yards?
Nevada did not win.
The judges ruled that the NRC has 3 years per the NWPA to decide on the license application, 4 if Congress gives them an extra year. The 3 years ends September 8, 2011. If the NRC has not made a decision, then the states can sue again and will win.
PS (again) - And what should the nuclear utilities do? Let's say you contract with a custom home builder to design and build you a custom home in five years, for five million dollars. Four years into the contract period of performance, after the contractor has already spent four million dollars without building anything, the contractor announces that he is unhappy with his design and intends to start all over again. But he will not refund your money, or release you from the contract. And the price has gone up, AND he has no idea when he will actually finish. What would YOU do?
PS - a couple of weeks ago now, I watched part of the NRC Commissioners' testimony before the Senate Energy and Environment Committee (if I remember correctly). At one point, all the commissioners seemed to agree with Magwood that nuclear waste is too dangerous to even move from wet to dry storage on site, let alone to Yucca Mountain. If they have convinced themselves that nuclear waste is THAT supernaturally, diabolically toxic, then it is hard to imagine how they would ever allow it to be moved enough to do ANYTHING with it. Under those circumstances, it seems like a pretty good guess that what they plan to do is NOTHING - just kick the can farther down the road.
Well nothing is "put to rest" till the stuff that lasts 500,000 years is no longer dangerous. Yucca will be used--it is the law--and the law has not been changed. All that is occurring at the moment are administrative moves. They dismissed the suit because the NRC chairman (Reid's ex aide) has prevented the release of the NRC report that triggers the next stage. Does anyone believe that that ends it?
I have a bridge for sale is the usual response to that kind of thinking. Once the NRC rules pro (or con) as the law requires, another suit will be files...this can go on for 5 years, 10, years 50 years or 500 years..because that material--will still be next to populated areas--and as you see in Japan--people know it must be stored away safely. As a matter of fact--it is not being covered very widely but--the Fort Calhoun Nuclear Power Plant in eastern Nebraska, is surrounded by Missouri River flood waters--right now. The administration was accused by the Russians of covering up a big problem last week. It was the failure of the pumps, inundated with water the caused the meltdown in Japan.
What do think would happen if there were a catastrophic problem in this country right now with a Nuke plant and all the machinations uncovered recently RE Reid's plant--Jackzo--were now Obama's political necklace?
We'll see.
The moment the political pendulum swings the other way--as it always does--Reid loses the Senate majority. Then the NRC players will change..when the next president is presented with the problem-he/she will ask--what does the law say? Not what does Harry think we can get away with for a few years.
It will be Yucca. Count on it. For it not to be Yucca--there would have to be an alternative. And--there is none. No one is going to redo the 30 years of work. And "transmutation" doesn't exist..
for some reason the concerned citizens that complain about siting the yucca facility may not live closer than i do. and as to residents of rachel and alamo, certainly a significant number work at or cater to test site staff. would any of the complainers build a house, drill a well in that area... mercury or yucca flats ? why not if the land is pristine and must be "protected" ?
@ voltron and Tired of This: as flattered as I am by rdisman's kind words, I have to disagree with him. As long as there is freedom of speech in this country, you will always be entitled to voice your opinion. Just as others will be equally entitled to disagree with it, and to refuse to act on it until you provide actual, substantive proof as opposed to emotionally manipulative rhetorical fluorishes. And as far as nuclear waste not being your problem, you are simply wrong. If for no other reason than Yucca Mountain will never, EVER go away once and for all, until someone thinks of something else to do with the stuff. Unless, of course, you and Harry really DON'T want it to go away, because you're getting too much political mileage out of the St. George-and-the-Dragon image?