Federal appeals court dismisses nuclear waste lawsuit

NEDRA PICKLER and DINA CAPPIELLO, Associated Press

Published Friday, July 1, 2011 | 9:40 a.m.

Updated Friday, July 1, 2011 | 11:25 a.m.

WASHINGTON -- The Obama administration won a legal battle Friday in the long-standing fight over where to bury the nation's nuclear waste, but it's not likely to be the last.

The federal appeals court in Washington ruled against South Carolina, Washington state and others that want to ship radioactive spent nuclear fuel they are temporarily storing to a repository 90 miles from Las Vegas at Yucca Mountain.

Congress chose 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 appeals court ruled that it's not an appropriate time for it to intervene because the Nuclear Regulatory Commission hasn't made a final decision yet on the status of Yucca Mountain. So the court threw out the case.

But the court pointed out that the commission is required under the law to issue a final decision within four years of an application, which will come in 2012 for the Bush administration's application for construction at Yucca Mountain. The court noted the commission's decision can be reviewed by the court and that it can also be sued for failing to act by the deadline.

Other than Yucca Mountain, the United States has no long-term plan for disposing of its nuclear waste. A federal report issued early in June said the U.S. has generated more than 82,000 tons of spent nuclear fuel and high-level nuclear waste, which it was storing at 80 sites in 35 states.

The amount of waste is expected to double by 2055, the Government Accountability Office said.

The Japan nuclear disaster put a spotlight on the problems of storing spent nuclear fuel in pools on the grounds of nuclear power plants. The spent fuel rods at Fukushima-Daiichi were likely damaged after the nuclear power plant lost power and the ability to keep water on the rods to cool them. In the United States, spent fuel pools contain much higher concentrations of radioactive material.

Congress designated Yucca Mountain as the only site for possible development as a repository in 1987. The Bush administration moved forward with plans to develop it, over protests from Nevada led by Senate Majority Leader Harry Reid, a Democrat.

President Barack Obama in his campaign for the White House vowed to kill Yucca Mountain, a decision that helped him win Nevada. Once in office, Obama promoted Gregory Jaczko, a former Reid aide, to chairman of the independent Nuclear Regulatory Commission.

A year later, Obama made good on his promise. Energy Secretary Steven Chu withdrew the government's application to build the dump, saying it wasn't a workable option. But the NRC licensing board rejected the administration's move, saying that the application couldn't be withdrawn without better justification.

The application is currently in limbo, since Jaczko has yet to hold a final commission vote on whether the licensing board's decision should be rejected or upheld and has refused to say if there ever will be a vote. In the meantime, Jaczko has shut down the licensing review, a decision that has been questioned by Republican lawmakers, and the agency's inspector general, which found last month that the NRC chief did not fully inform commissioners about his plans.

Meanwhile, the Energy Department has gone ahead with dismantling the project.

The three appellate judges, David B. Sentelle, Janice Rogers Brown and Brett M. Kavanaugh - all appointed by Republican presidents - each issued separate opinions with the same bottom line. All three said the suit must be dismissed because the decision over Yucca Mountain currently is up to the commission.

A commission spokeswoman said the agency is reviewing the decision and has no comment.