Yucca Mountain fate argued in court

WASHINGTON -- Washington state attorney Andy Fitz argued in federal appeals court Tuesday that the Obama administration moved illegally to shut down the Yucca Mountain program, an action that will leave highly radioactive materials stranded near the Columbia River.

But a three-judge panel wanted to focus on a procedural issue. Has the Yucca nuclear waste project been ended completely through a final action by the Nuclear Regulatory Commission, a federal safety agency? And, if not, wasn't it premature to be considering this case?

"Why shouldn't we wait until NRC acts?" Judge Brett Kavanaugh asked.

Fitz, a senior counsel in the Washington state attorney general's office, responded, "The key issue here, and it is incredibly frustrating, is the finality issue is a smokescreen."

No matter what the Nuclear Regulatory Commission does, Fitz argued, the Obama administration made clear in January 2010 that it was ending the Yucca Mountain program, and it proceeded to close the project office . He said the Nuclear Regulatory Commission "is just a small slice of the issue."

Washington state, South Carolina and others who have sued the Obama administration over Yucca Mountain had their day in court, challenging the termination of the project that sought to remove millions of gallons of radioactive waste from within their borders and transport it to a Nevada repository 100 miles northwest of Las Vegas.

They argued the government action violated the 1982 nuclear waste law. In short, they contended Congress authorized the Yucca project and only Congress could end it.

Barry Hartman, another plaintiff attorney, said the decision to abandon Yucca Mountain was made by the Department of Energy and President Barack Obama, and "he does not have the authority to change a statute that Congress passed."

"It does seem as if DOE has made a considered decision not to comply with a law passed by Congress," Kavanaugh said at one point.

But otherwise judges in an hour-long hearing at the U.S. Court of Appeals for the District of Columbia Circuit focused largely on procedural questions that suggested the case may be decided on process rather than on a big picture.

"Obviously the judges were very interested in the jurisdictional issues," nuclear industry lawyer Jay Silberg said outside the courtroom. "They were more interested in the jurisdictional issues than they were on the merits."

Marty Malsch, an attorney who represents Nevada on nuclear issues, said the court normally rules within three or four months, although it had set a fast-track schedule in the Yucca Mountain case that might speed a decision.

The hearing took place in a courtroom packed with more than 100 people, including several rows of former Yucca Mountain managers.

Justice Department attorney Ellen Durkee, representing the Department of Energy and the Nuclear Regulatory Commission, told the judges the challenge was premature.

"This case is rather simple," Durkee said. In the absence of a final NRC judgment, "there is no agency action for the court to review." She said the Energy Department could restart the Yucca program if it loses court appeals, "subject to funding" from Congress.

Durkee said she did not know when the Nuclear Regulatory Commission would announce a decision on the case that has been before the commission since last July.

Critics in the nuclear industry have accused NRC chairman Gregory Jaczko, a former aide to Yucca Mountain foe Sen. Harry Reid, D-Nev., of foot-dragging on a final ruling, a charge he has denied.

The failure of the Nuclear Regulatory Commission to rule in the case proved to be a central point in oral arguments.

Washington state Attorney General Rob McKenna said he could not tell if the government's strategy involved delaying a Nuclear Regulatory Commission ruling in order to make a legal challenge more difficult.

"We certainly have been frustrated that the NRC has delayed," McKenna said. "We can't read minds but we can certainly see what the effect is."

The judges touched on that point.

"What if the NRC does not act?" said Judge Janice Rogers Brown.

"I don't think we are at a point of unreasonable delay," Durkee answered.

If anyone feels otherwise, they can sue the Nuclear Regulatory Commission on those grounds, she said.

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.