Appeals court hears arguments over Yucca Mountain site

U.S. Department of Energy

Yucca Mountain is located about 90 miles northwest of Las Vegas.

NEDRA PICKLER, Associated Press

Tuesday, March 22, 2011 | 12:20 p.m.

Federal appeals court judges heard arguments Tuesday in a case over whether the Obama administration had the authority to stop plans to bury the nation's nuclear waste in Nevada.

South Carolina and Washington state are among those suing the president and other federal officials to try to restart plans to ship their radioactive spent nuclear fuel to a repository 90 miles from Las Vegas at Yucca Mountain.

Congress had chosen Yucca Mountain as the leading candidate for waste disposal, but opponents are concerned about contamination and the Obama administration said it would not consider the site and would look for alternatives.

The case comes as the nation is questioning the future of nuclear plants in the wake of a nuclear crisis in Japan. A plant has been leaking radiation since a powerful earthquake and resulting tsunami hit the country on March 11.

The United States has no long-term plans to dispose of its nuclear waste. Arguments before a three-judge panel of the appeals court in Washington focused on whether the federal government has made a final decision yet that the states can appeal.

Last year, the Energy Department filed a motion with the Nuclear Regulatory Commission to withdraw its application for the Yucca Mountain repository. The commission has not ruled on that motion, but the Energy Department has gone ahead with dismantling the project.

Barry M. Hartman, an attorney arguing against the administration's decision, said Energy Department was acting on the orders of the president, who he contended can't just opt out of the choice of Yucca Mountain made by Congress in law. "He had no authority to reverse it," Harman argued.

The three appellate judges assigned to the case _ all Republican nominees _ questioned whether they can get involved at this point when the commission's decision is still pending. But they pressed the Obama administration's lawyer, Ellen Durkee, on when _ or if _ the commission is going to rule.

Durkee said she didn't know when the commission plans to act _ the commission's chairman recently refused to tell reporters whether it ever will. Durkee argued there's no deadline and although there hasn't been much action lately, "the licensing proceeding is going forward."

"It's going forward by standing in place," replied the court's chief judge, David Sentelle. Sentelle asked what would happen if the commission sits on the motion with no action for 20 years. Durkee replied that a new case could be filed arguing the commission was making an unreasonable delay, but she didn't think they were there yet.

Judge Brett Kavanaugh questioned whether the Energy Department would comply if the commission overturned its decision. She said it would, while exploring options to appeal.