Yucca Mountain decision put off

Supporters of opening a nuclear waste repository at Yucca Mountain, Nev., see indications that an appeals court may order the project to move forward, even though the court issued an order Friday delaying a decision.

The District of Columbia Circuit U.S. Court of Appeals indicated it likely will force the Nuclear Regulatory Commission to act on a license application to build the repository unless Congress takes action by Dec. 14.

In the order, two of three judges on the case acknowledged a key point made by Washington state and others who petitioned the court to force the NRC to proceed with the license application, according to the Washington State Office of the Attorney General.

The two judges recognized the NRC has a legal duty to move forward with the licensing process, the state office said.

"Today's order confirms that the Nuclear Regulatory Commission violated the law in dismantling the process for licensing Yucca Mountain," said state Attorney General Rob McKenna in a statement.

That the judges recognize NRC has a duty to move forward is encouraging, Gov. Chris Gregoire said in a statement, but she would have preferred that NRC be ordered to act now.

"Decisions about nuclear waste storage in this country are of critical importance to our state as we continue the cleanup of the Hanford nuclear reservation and manage the legacy of contamination that the federal government left us with following nuclear weapon production," she said.

Congress designated Yucca Mountain in 2002 as the nation's repository for deep geological disposal of used commercial nuclear power fuel and Department of Energy weapons waste. That includes Hanford's irradiated fuel and its high-level radioactive waste once it is treated for disposal at the vitrification plant under construction.

At the direction of Congress, the Department of Energy filed an application with NRC in 2008 for a license to build the repository. But in January 2010, President Obama and DOE announced they would withdraw the application, which Washington maintains violates the law.

The state and a group of three Tri-City business leaders -- Bill Lampson, Bob Ferguson and Gary Petersen -- are among seven parties that filed a court petition alleging the NRC is "unreasonably withholding agency action" and that it has a legal duty to move forward with the Yucca Mountain license application.

The court will wait until Dec. 14 to see if Congress takes actions to change the law, such as prohibiting the NRC from using previously appropriated money to continue licensing work.

But the Tri-City Development Council said congressional action this year to change NRC spending is unlikely. The House and Senate leadership earlier this week agreed not to proceed with work on a federal budget for the fiscal year that starts Oct. 1. Instead, the government will operate under a continuing resolution, or CR, through March.

"The CR as crafted does not change the law with respect to Yucca Mountain," said Petersen, TRIDEC vice president for Hanford programs.

In the court opinion issued Friday, Judge Brett Kavanaugh said the court likely will need to grant the petition requiring the licensing work to proceed if congressional budget action this year does not provide any additional clarity.

A dissenting opinion on delaying a decision used stronger language.

Whether an agency willfully defying an earlier Congress' command should be forced by the courts to comply has never depended on the possibility that a later Congress might do something to excuse the violation, wrote Judge Arthur Raymond Randolph in a dissenting opinion.

"Here, the Nuclear Regulatory Commission has disregarded a clear statutory mandate, citing a lack of funding, when in fact it has sufficient funds to move forward," he wrote.

There is no reason to delay ordering the NRC "to correct this transparent violation of the law," Randolph wrote.