A decision on whether to compel the Nuclear Regulatory Commission to rule on plans for storing nuclear waste at Yucca Mountain was put off by an appeals court after the agency said it lacked funds to complete the process.
In a 2-1 decision today, the U.S. Court of Appeals in Washington gave the NRC until Dec. 14 to report back on whether Congress provided the funding it says it needs to act on the Energy Department’s application for approval of the Nye County, Nevada, disposal site.
The judges said if Congress doesn’t come up with the money, they will probably order the commission to move ahead with the licensing process, unless lawmakers formally scuttle the project altogether.
“Here, the law mandates that the Nuclear Regulatory Commission act on the license application, and the agency still has a significant amount of appropriated money available to at least begin that task,” U.S. Circuit Judge Brett Kavanaugh said in a statement joining the ruling. “In those circumstances, an agency appears to have no legal authority to defy the law in the manner suggested by the Nuclear Regulatory Commission in this case.”
The federal government already has spent about $15 billion, including $9.5 billion collected from industry, on the Yucca facility, located about 100 miles (160 kilometers) northwest of Las Vegas.
The case was brought by Aiken County, South Carolina. In its petition, the county said it’s the location of a significant part of the Energy Department’s Savannah River Site, one of the department’s temporary storage facilities for spent nuclear fuel and high-level radioactive waste. Failure to go forward with the Yucca project could result in “widespread contamination” at 72 commercial and five government storage sites, the county said, citing an Energy Department report.
The Obama administration in 2010 sought to withdraw Yucca’s license application, which an NRC panel turned down. The agency hasn’t issued a final decision. Republicans have said Obama’s plan to scrap Yucca lacked a scientific or technical evaluation.
For fiscal year 2010, the Yucca Mountain program received $197 million at the administration’s request. The following year the administration eliminated funding for the program.
“The administration has determined that Yucca Mountain, Nevada, is not a workable option for a nuclear waste repository,” according to Obama’s budget request for the year beginning Oct. 1, 2010.
At a July 24 hearing, Allison Macfarlane, chairman of the NRC, told Congress that picking a site wasn’t a task for the commission and that some cash remains available to evaluate Yucca.
In a dissent, U.S. Circuit Judge A. Raymond Randolph said the NRC has sufficient funds to move forward and that the commission’s former chairman, Gregory Jaczko “orchestrated a systematic campaign of noncompliance.”
He said there was no reason to delay issuing a ruling “to correct this violation of the law.”
The case is In re Aiken County, 11-01271, U.S. Court of Appeals for the District of Columbia (Washington).
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