Court urged to intervene in Yucca Mountain dispute

Plaintiffs in a lawsuit against the Nuclear Regulatory Commission have renewed their request for federal judges to order the agency to complete its license review of the Yucca Mountain Project.

The petition was filed Friday, a week after NRC commissioners directed the agency’s Atomic Safety and Licensing Board to continue winding down its work on the proposed Nevada nuclear waste site with the goal to wrap up entirely by Sept. 30.

The NRC is moving to terminate the licensing process even as commissioners deadlocked 2-2 on whether the Department of Energy could withdraw the application from the agency’s docket. The tie vote kept the application alive on paper, but the commissioners noted there would be no money to continue because the Obama administration has zeroed out the Yucca budget for the fiscal year that begins Oct. 1.

In suing the NRC, plaintiffs including the attorneys general from Washington and South Carolina— states that want to remove millions of gallons of high level waste —  have charged the commission, which is headed by an Obama-appointed chairman, dragged its feet on considering Yucca Mountain as a destination.

The officials request the court expedite its ruling. The agency’s decision earlier this month "leaves no doubt that the NRC has no intention of complying with its statutory duties to consider the Yucca Mountain licensing application and render a final decision on that application within the (three year) time frame established by Congress.

"Absent this court’s intervention, a decades-long, multi-billion dollar process to address one of our nation’s most intractable problems will simply vanish,"  according to the petition submitted to the U.S. Circuit Court of Appeals for the District of Columbia.

While the legal moves are keeping lawyers busy, several attorneys said the outcome of this latest bid to keep the Yucca project on life support likely will be limited.

In the legal realm, it is well beyond the 11th hour for anything dramatic to come from the latest skirmish,  said Marty Malsch, an attorney who has represented the state of Nevada on Yucca matters.

In fact, Malsch said, "At this point it is past the 12th hour."  It is unlikely the latest turn in the legal case will be resolved before Sept. 30, the end of the fiscal year, according to Malsch and other lawyers consulted Monday, and at that point the court may be reluctant to direct NRC to spend money it does not have.

That leaves the political realm. "This case is where it has been the last couple of months," Malsch said. "Namely, what is Congress going to do."

If nothing else, the latest appeal by the states "can be cited by people in Congress to say, ‘Hey, this is urgent, we have to do something to fund the project,’" Malsch said.

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