‘Yucca is far from dead’ amid court, NRC issues

WASHINGTON — The Energy Department’s drive to terminate the Yucca Mountain Project took a surprise turn this week that might either streamline the shutdown or delay it for months or longer.

A panel of three judges at the Nuclear Regulatory Commission on Tuesday suspended briefings on the proposed DOE shutdown until a federal court can decide on some of the legal issues that critics have raised in challenging the move.

The NRC judges, who serve on the agency’s Atomic Safety and Licensing Board, are considering a DOE motion to withdraw a construction application for the nuclear waste site in Nevada. They said it would be "judicial efficiency" to allow key issues to be sorted out first by the U.S. Court of Appeals for the District of Columbia Circuit.

"The board concludes that the pending actions in the Court of Appeals will likely yield quicker and more authoritative resolution of most if not all relevant legal issues than if the board were to address them without waiting for the court’s guidance," the judges said in a 13-page order.

In the meantime, the judges noted that the NRC staff would continue to review the DOE license application, keeping the process going even as the Obama administration has declared it has no interest in the Nevada site.

"In other words, Yucca is far from dead," Jack Spencer, a research fellow at the Heritage Foundation, commented in a blog posting Wednesday.

Attorneys who follow the issue said the NRC’s move raises a number of uncertainties, including how long it now might take the government to issue final decisions on terminating the project.

Even before that, attorneys said, it remains to be seen whether NRC commissioners, who oversee the licensing board, might step in to reverse the licensing board’s decision. And, they said, the court of appeals could decide it is premature for it to get involved before the NRC makes its own decisions on the repository license.

"There are a few things that need to fall out before we really know what is going to happen," said Marta Adams, Nevada senior deputy attorney general.

The states of Washington and South Carolina, plus Aiken County, S.C., have filed federal lawsuits questioning whether the Department of Energy has legal authority to close down the program to develop a waste site at Yucca Mountain, 100 miles northwest of Las Vegas.

The Department of Energy disagrees with the NRC move to delay any decisions until courts rule, a spokeswoman said Wednesday.

"We are confident that we have the legal authority to withdraw the application for the Yucca Mountain repository," spokeswoman Stephanie Mueller said. "We also believe that this issue should first be ruled upon by the NRC and then by the courts. But we look forward to resolving this issue promptly in any appropriate forum."

As far as reaching a resolution, "It could take anywhere from a year best case to 2½ years, but who knows," said one attorney who asked not to be identified because he is involved in other nuclear waste litigation.

Adams said the federal court, if it agrees to hear the case, could clarify some of the legal issues and possibly ease final decisions on the project.

"I think giving it a positive spin it could result in expediting the whole morass that has been swirling around ever since the announcement that DOE would be filing the motion" to terminate the project, Adams said.

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