Appeals court to decide on money to fight Yucca dump

Suzanne Struglinski

Tuesday, Jan. 11, 2005 | 9:43 a.m.

WASHINGTON -- It's up to a federal appeals court now to decide if Nevada will get any more federal money for its fight against the Yucca Mountain project.

A ruling in the state's favor could mean more federal dollars to Agency for Nuclear Projects while a ruling against the state might force it to spend more of its own tax money to fight the repository, just as the next, and expensive, phase of the process begins to take shape. A decision is expected in the next three months, according to the state's lawyers.

The state sued the Energy Department last year when it received only $1 million for its work related to the department's plan to store nuclear waste at Yucca, 90 miles northwest of Las Vegas. The state wanted at least $5 million a year to do additional research, pay lawyers and generally prepare to object to the license application the department plans to file with the Nuclear Regulatory Commission. The state has received that much in the past, but the department did not request any money for state or local governments in 2004. Congress approved the $1 million after the prompting by Nevada's Congressional delegation and the department said it could get nothing more without congressional approval.

Attorneys argued that without additional money the state cannot do its work on the project as allowed in federal nuclear waste law. On top of the $1 million allocated by Congress, the state Assembly approved $1.1 million last year to help make up the difference, but because of the expected license application hearings the state will have to allocate more in coming years if the state does not get more federal money.

The state still needs to additional money, but because the department did not reach its goal of turning in the application by the end of last year, the lower funding does not leave the state in as much of a crisis as it once thought.

"A lot will depend on what DOE (the Energy Department) does," said Bob Loux, executive director of the Nevada Nuclear Projects Agency.

Loux said the state can do its work with $5 million a year until the application is filed. After that, the state will need at least $13 million a year as the license application hearings take place. The state plans to raise several objections to the repository at the time, which will require more legal fees, document preparation and research.

Based on arguments made by Nevada attorneys Monday, the U.S. Court of Appeals for the District of Columbia will determine whether the Energy Department can give the state more money on top of money set aside for it by Congress in the annual energy spending bill.

Attorney Robert Cynkar, part of the firm Egan, Fitzpatrick, Malsch and Cynkar hired by the state to handle Yucca legal matters, that under federal nuclear waste law, the state should get additional money from the Nuclear Waste Fund, an account paid into by companies that use nuclear power. Cynkar argued the spending bill contained nothing that said the department could not make grants under the fund.

But Justice Department attorney Ronald M. Spritzer told the three-judge panel that once Congress finalizes a spending bill the amounts in it are a "ceiling," meaning the department could not increase the $1 million allocation.

Judges Raymond Randolph, Stephen Williams and David Tatel heard the case. Tatel was on the court's panel that rejected the Environmental Protection Agency's radiation protection standard last July that lead to a delay in the project.

In the courtroom, Spritzer said no new date for submitting the application has been set. Cynkar said Nevada officials expect the application in late spring or early summer.