Ruling keeps Yucca Mountain alive

WASHINGTON -- The Yucca Mountain nuclear waste plan was kept alive Tuesday when a panel of judges ruled the Obama administration does not have the authority to withdraw the project without permission from Congress.

Federal law requires the Department of Energy to apply for a waste repository license and for the Nuclear Regulatory Commission to evaluate the application and rule on its merits unless lawmakers decide otherwise, according to a three-judge board that hears commission licensing matters.

"We deny DOE's motion to withdraw the application," the judges said at the outset of a 53-page ruling. The Nuclear Waste Policy Act, which was passed in 1982, "does not give the secretary (of energy) the discretion to substitute his policy for the one established by Congress."

The decision is a setback for the Obama administration, which has been moving to shut down the Nevada project in fulfillment of a campaign pledge to Sen. Harry Reid, D-Nev., a longtime Yucca foe.

The program has been zeroed out of President Barack Obama's 2011 budget, and the hundred or so people remaining at work in Las Vegas and Washington, D.C., are retiring, transferring or preparing to be laid off.

Reid's Republican opponent in their Senate race, Sharron Angle, wants to develop Yucca as a site for reprocessing spent nuclear fuel for use as energy.

Angle opposes using the site as a "dumping ground" for nuclear waste -- something Southern Nevadans have fought for years -- but argues hundreds of jobs can be created at Yucca if it becomes a center for nuclear energy generation.

Tuesday's ruling by the Atomic Safety and Licensing Board promises months more of legal maneuvering over the repository that seems certain to extend beyond the November elections, said Lake Barrett, a retired DOE manager who was a director of the Yucca program from 1993 to 2002.

"This is a long way from being over," Barrett said. "This was round two of a 15-rounder."

At least for the time being, the decision keeps the Yucca project alive, if only on paper.

The Department of Energy said it plans to appeal the ruling to the full five-member regulatory commission board, whose members are presidential appointees confirmed by the Senate.

"We believe the administrative board's decision is wrong and believe that the Nuclear Regulatory Commission will reverse that decision," DOE spokeswoman Stephanie Mueller said.

Bruce Breslow, executive director of the Nevada Agency for Nuclear Projects, said the state "respects but disagrees with" the licensing panel's decision, and will join the appeal.

Reid said he was disappointed but that Tuesday's ruling was hardly the last word.

"The full commission will likely take another look at the motion to withdraw the license application and make the final decision on behalf of the NRC in the coming months," Reid said.

"I will continue to ensure that this dangerous project never comes back to life."

Added fellow Nevada Democrat Rep. Shelley Berkley: "Nevadans have been told before that it's time to end the fight against Yucca Mountain, and we aren't going to surrender now just because of this one ruling."

The ruling was applauded by rural Nevada interests that view the repository plan, which could cost close to $100 billion if approved, as a economic lifeline.

Robert List, the former Nevada governor who is counsel for Churchill, Lander, Esmerelda and Mineral counties, said the administration's bid to withdraw the license application "was an attempt to circumvent the law."

"This ruling is a reminder that we are a nation of laws, not of men and no single individual. Neither the president, the secretary of energy or the Senate majority leader can ignore the law in order to achieve a personal objective," List said.

The ruling was just the latest twist in the long and tortured history of the proposed Yucca Mountain repository.

On top of any decisions from the regulatory commission, a federal appeals court in Washington, D.C., has scheduled hearings in September on a lawsuit filed by states that include Washington and South Carolina that seeks to revive the Yucca project.

For more than 20 years, the site 100 miles northwest of Las Vegas was the government's sole focus in trying to dispose of more than 77,000 tons of highly radioactive materials.

But until Obama was elected president, the project drew opposition only from the state's top elected leaders and a majority of residents who challenged its safety.

The next action might happen before the five-member regulatory commission board.

The commissioners could wait to receive an appeal, or they could decide to take up the matter.

NRC spokesman David McIntyre said the commission "has the order and is reading it."

The NRC chairman is Gregory Jaczko, a former science adviser to Reid. The Nevada senator fought to have Jaczko placed on the board in 2003. He was nominated to a second term in 2008.

Jaczko has advocated keeping radioactive waste stored at the nation's 104 nuclear power plant sites for now.

The material would be kept in steel and concrete canisters that scientists believe would be safe for 100 years or longer.

"I would not be surprised if the NRC reverses the ruling," said Tom Clements, southeastern nuclear campaign coordinator for Friends of the Earth.

Clements noted that three NRC commissioners -- William Magwood, George Apostolakis and William Ostendorff -- were asked directly at their Senate confirmation hearings in February whether they would "second guess" DOE on Yucca Mountain. Each said no.

But Barrett said it was "highly irregular" for nominees to be asked flat out during confirmation how they might rule on an issue. The commissioners might be challenged on those grounds.

"The three new commissioners will have to decide whether they can actually vote on the matter since many people think they were compromised during the confirmation process," Barrett said.

The judges rejected a DOE motion to withdraw a 17-volume, 8,600-page application to build an underground repository and above-ground industrial site to handle spent nuclear fuel that would arrive by rail car.

Energy Secretary Steven Chu had noted the Obama administration had changed its nuclear waste policy and concluded Yucca Mountain "is not a workable option."

The judges said it would take more than that to pull the plug.

"We conclude that Congress directed both that DOE file the application, and that the NRC consider the application and issue a final merits-based decision," the judges said. "Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decision-making process by withdrawing the application."

Review-Journal writer Keith Rogers contributed to this report. Contact Stephens Washington Bureau chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.