Yucca Mountain dump opponents see their momentum ebb

By Lisa Mascaro

Tuesday, April 13, 2010 | 2 a.m.

It turns out neither the president nor Harry Reid nor the state of Nevada will be the ones deciding whether the nation’s nuclear fuel dump will be built at Yucca Mountain.

The fate of the nation’s nuclear waste repository lies, momentarily, with an appeals court in the District of Columbia, which is being asked to determine whether President Barack Obama’s Energy Department has the right to kill the dump.

Several entities, including the state of South Carolina, where large quantities of nuclear waste are stored, have sued the Obama administration over its decision to halt the Yucca Mountain project.

With the legal action pending, an administrative board in Las Vegas that is supposed to review Obama’s request to withdraw the Yucca Mountain license application, essentially ending the project, decided the courts should go first.

The decision last week to “punt” the responsibility to the courts broadsided anti-Yucca Mountain forces in Nevada and showed once again that the process of killing Yucca Mountain may be as long and tortured as the attempt to build it.

Bruce Breslow, executive director of the Nevada Agency for Nuclear Projects, said the three-judge administrative panel’s decision to suspend its work while the court acts “basically just stopped the process.”

“They’ve punted on the whole thing,” said Breslow, whose agency has been fighting the project for decades. “We feel the administrative proceeding must go to a conclusion before it goes to federal court.”

Energy Department Secretary Steven Chu maintains that Yucca Mountain is “not an option” for the dump and believes its decision to halt the project will be upheld.

The Energy Department filed a motion Monday asking the Nuclear Regulatory Commission, which oversees the board in Las Vegas, to either force the panel to resume its work or take over the review itself.

“We are confident that we have the legal authority to withdraw the application for the Yucca Mountain repository,” Energy spokeswoman Stephanie Mueller said.

The department used strong language in its filing, saying the board’s decision “abdicates its obligation” to review the Obama administration’s request to withdraw the license. It said the board’s “decision is misguided.”

The decision to suspend the hearings startled Nevada officials and others working to stop the waste repository 90 miles northwest of Las Vegas.

But it probably should not have. The story of Yucca Mountain is nothing if not one of unexpected twists — from the 1987 decision to name the Nevada desert as the dump site to the 2008 election of a Democratic president who vowed to kill it.

This year, the Obama administration announced it would make good on the president’s campaign pledge to Nevada, as the Energy Department sought to withdraw the Yucca Mountain application pending before the Nuclear Regulatory Commission.

Seeking to withdraw Yucca Mountain’s license was the most significant step to date to bring it to its end — more so than years of starving the project of federal funds.

Yet, advocates for Yucca Mountain have been unwilling to go away quietly. Storing waste on site at the nuclear reactors throughout the nation can be costly and utility companies complain they have been required to charge their customers a fee to pay for the eventual repository in Nevada.

South Carolina Republican Gov. Mark Sanford announced in February his opposition to the Obama plan and his state’s intent to sue. South Carolina argues that keeping the nuclear waste in its state would be a “hazard.”

Because the state has seven of the nation’s more than 100 civilian nuclear reactors, it would be eyed for a waste dump.

“The abandonment of the Yucca Mountain site would place South Carolina back on the list of candidate states for a high-level nuclear waste or spent fuel storage or disposal facility of some kind,” argued South Carolina in its court filing. “The citizens of South Carolina also derive economic, health, safety, professional, recreational, conservation and aesthetic benefits from the existence of the natural environment of the region.”

Under normal circumstances, the three-judge board in Las Vegas would review the petition from South Carolina and other opponents to intervene in the case, making a decision that could be appealed to the full Nuclear Regulatory Commission or the courts.

But the board believes the questions raised are legal, not scientific, and would be better handled by the district court in Washington.

“The key issue is clear and well-defined: that is, whether DOE has lawful authority to withdraw the Application,” the panel wrote last week. “From the standpoint of efficient judicial administration, there appears little practical advantage for the Court of Appeals to defer consideration of the matter.”

The court will expedite its decision on whether to take up the issue.

Reid, the Senate majority leader who has long fought to kill the project, believes it will be halted.

“Sen. Reid is confident that the license application for Yucca will ultimately be withdrawn,” spokesman Jon Summers said. “He believes the Obama administration and Secretary Chu have all the authority they need to permanently shelve the seriously flawed application to build the nuclear waste dump.”