Friday, July 9, 2010 | 2:37 p.m.
CARSON CITY – The federal Department of Energy, which has spent an estimated $10 billion to prepare an application to build a high-level nuclear dump at Yucca Mountain, should be able to abandon the project, the state of Nevada says.
The state filed a brief Friday with the federal Nuclear Regulatory Commission asking it to overrule the recommendation of a panel of three administrative judges that said only Congress can withdraw the application, not the Department of Energy.
The brief, prepared by Senior Deputy Attorney General Marta Adams, said the Nuclear Regulatory Commission “has never prohibited an applicant in the past from withdrawing its application.”
Adams said the 1987 congressional act designating Yucca Mountain is ambiguous and never mentions the word “withdrawal.” It’s up to the administrative agency – the Energy Department – to interpret the law, she said.
President Obama has campaigned to have the application withdrawn.
Joining Nevada in filing the brief were Clark County, the Joint Timbisha Shoshone Tribal Group and the Native Community Action Council.
The judges of the Atomic Safety and Licensing Board, a subset of the Nuclear Regulatory Commission, said the Department of Energy doesn't want to bow out because of safety concerns, but it cites a “matter of policy” and Yucca is “not a workable option.”
The panel of judges said it would be “illogical to allow the Department of Energy to withdraw the application without any examination of its merits.” Then Congress can decide whether to change the law or withhold funds for continuing the project, the judges said.
The Nevada counties of Nye, White Pine, Churchill, Esmeralda, Lander and Mineral want the Energy Department’s work on Yucca Mountain to move ahead. So do the states of Washington, South Carolina and the National Association of Regulatory Utility Commissioners.
In its brief, Nevada says the regulatory commission should permit the Energy Department to withdraw its Yucca Application with prejudice – barring it from filing it again.
Adams said in the brief, “A long and consistent line of (nuclear regulatory) commission decisions hold that the commission does not second guess licensees’ decision to abandon nuclear projects.”
And denial of the motion of the Department of Energy in this case would be unprecedented, she said.
If the regulatory commission denies the motion to withdraw, it might find the Energy Department a “reluctant one performing out of a sense of duty.
“And if in the end, Nevada prevailed over a reluctant and unenthusiastic applicant (the energy department) there is the real danger that the decision would lack credibility because project supporters in Congress and elsewhere would forever claim that a more dedicated and enthusiastic applicant could have carried the days,” said Adams.