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Court: Work on Yucca Mountain Must Resume by Annette Cary Tri-City Herald, August 13, 2013

WASHINGTON, D.C. -- The federal government has been ordered to resume work to license Yucca Mountain, Nev., as a repository for Hanford and other nuclear waste.

The U.S. Court of Appeals issued a 2-1 decision Tuesday, saying the Obama administration needed to respect the constitutional separation of power.

"It's a win for following the law," said Gary Petersen, one of three Tri-City business leaders who filed the lawsuit. Petersen, Bill Lampson and Bob Ferguson were joined by the states of Washington and South Carolina, among other plaintiffs.

"This ruling is great news for Washington state -- especially residents in the Tri-Cities area near the Hanford nuclear reservation -- who have been waiting for this project to move forward," said Bob Ferguson, Washington attorney general, and no relation to the Tri-City business leader of the same name.

However, opponents of turning Yucca Mountain into a nuclear waste repository said the project never will be completed because both houses of Congress still would need to agree to pay for it.

Congress designated Yucca Mountain as the nation's repository for high-level radioactive weapons waste and used nuclear fuel in 2002. But in 2010, President Obama and the Department of Energy withdrew an application for a Nuclear Regulatory Commission license needed to open the repository.

About $10 billion had been spent to develop the Yucca Mountain repository before the NRC discontinued the licensing process.

At Hanford, the $12.3 billion vitrification plant was designed to glassify and package high-level radioactive waste to specifications set for Yucca Mountain. A projected 9,700 canisters of glassified waste from the vit plant and 2,347 tons of irradiated Hanford fuel, never processed to remove weapons plutonium, have been planned to be sent to Yucca Mountain.

"Each year cleanup funds are diverted to safely store and secure this material that belongs in a national repository," said Pam Larsen, executive director of Hanford Communities, an organization of local governments. "The decision by the court now allows this nation to move forward with a national repository."

The vitrification plant is 70 percent complete and further delays of Yucca Mountain add risk to the plant and will result in waste staying at Hanford longer, Rep. Doc Hastings, R-Wash., said in a statement. He called the ruling a major victory for Hanford and Washington. Used nuclear fuel now stored at the Energy Northwest nuclear power plant near Richland and at other commercial nuclear power plants across the nation also has been expected to be sent to Yucca Mountain.

"Our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission," the court said in its ruling. "Our decision today rests on the constitutional authority of Congress and the respect that the executive and judiciary properly owe to Congress in the circumstances here."

The NRC must promptly continue with the licensing process unless money is not available, the ruling said. The NRC has at least $11.1 million appropriated by Congress to continue considering the license.

The decision does not obligate Congress to appropriate additional money for Yucca Mountain, nor does it influence the outcome of the licensing process, the ruling said.

Chief Judge Merrick Garland issued a dissenting opinion, saying the ruling was useless because $11.1 million is not enough money for meaningful progress to be made on processing the licensing application and he does not believe Congress will provide more money. The order "amounts to little more than ordering the commission to spend part of those funds unpacking its boxes and the remainder packing them up again," he wrote.

Hastings, who has been adamant that Yucca Mountain is the law, said it's time to release the NRC licensing report, complete the licensing process and move forward with the repository. The House has bipartisan support to continue funding to complete the Yucca Mountain license application.

Petersen said he is most interested in having NRC complete its work and release technical data to show whether Yucca Mountain is feasible. "If Yucca Mountain is feasible, it could open within 15 years," he said.

A plan to select a new site for a national repository has been proposed by the Blue Ribbon Commission on America's Nuclear Future, which was formed after the Obama administration moved to stop work on Yucca Mountain. The new plan calls for a national repository by 2048. "From a community perspective, that's not acceptable," said Carl Adrian, president of the Tri-City Development Council.

Promises were made to the Tri-Cities that high-level waste and irradiated fuel would not stay at Hanford and that promise has been broken, Adrian said.

Consent-based siting may sound good, but the consent would have to be sustained for 35 years through many changes of leadership, Adrian said. Nevada opposed being the site of a national repository and the new plan calls for basing it in a state that consents to have it.

Some compensation is likely for states that agree to take the waste temporarily or permanently, but Hanford already is providing interim storage, he said. Some Hanford compensation is in order, which could take the form of new projects that would provide jobs for Tri-City residents, he said.

Hastings said he has growing concerns that taxpayer money is being spent on looking at temporary storage siting and waste studies, which he called nothing more than ways to continue the illegal shutdown of Yucca Mountain.

"The court's order should be implemented without delay and ongoing administration efforts that circumvent Yucca Mountain should immediately stop," he said.

Energy Secretary Ernest Moniz, who was in Nevada on Tuesday for a clean energy conference, said Yucca Mountain is at a stalemate and that will not change because of lack of money, according to The Associated Press.

Senate Majority Leader Harry Reid, D-Nev., also was at the conference and said the ruling was "not unexpected." But it "means nothing" because Congress will not provide money to finish the licensing, he said.