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Judges rule Obama cannot close Yucca waste site without congressional approval

By Sarah Miley

[JURIST] Three administrative law judges with the US Nuclear Regulatory Commission (NRC) [official website] Atomic Safety and Licensing Board [official website] have denied a request [judgment] by the Obama administration and the US Department of Energy (DOE) [official website] to withdraw the government's application for a license to construct a permanent nuclear waste repository [Berkeley Lab backgrounder] in Yucca Mountain, Nevada. The DOE filed a motion to withdraw the application [text, PDF] in March claiming that Yucca Mountain is not a "workable option" for the long-term disposal of nuclear waste and that "alternatives will better serve the public interest." Under the Nuclear Waste Policy Act of 1982 [text, PDF] the NRC regulates the terms and conditions of a withdrawal of an application. The three-judge panel ruled last week that the executive branch could not act unilaterally to withdrawal the application, and the request must instead be initiated by an act of Congress. Explaining its ruling the panel stated:

Unless Congress directs otherwise, DOE may not single-handedly derail the legislated decision-making process by withdrawing the [Yucca Mountain repository] application. Given the stated purposes of the Nuclear Waste Policy Act and the detailed structure of that legislation, it would be illogical to allow DOE to withdraw the application without any examination of the merits...[The Act] does not give the [DOE] secretary the discretion to substitute his policy for the one established by Congress.

The judges also added the the DOE had weakened its arguments by "conceding that the application is not flawed nor the site unsafe." The NRC already granted an appeal of the ruling and set a July 16 deadline for follow up briefs. If the NRC rules against the DOE, the department can appeal to the US Circuit Court of Appeals for the District of Columbia [official website].

The nuclear repository has not been welcomed by Nevada government officials, who have been mounting challenges against the site since Congress approved government plans to construct the facility in 2002. Government officials fear that the repository, which will be located 90 miles northwest of Las Vegas, will negatively effect the city's $28 billion tourism industry. Rejecting challenges by Nevada officials, the DC Circuit ruled in 2004 that federal plans to build a nuclear waste site in the state were constitutional under the Takings Clause [JURIST report]. In March 2006 Nevada filed a lawsuit against the federal government, seeking documents related to the repository [JURIST report], including documents which allegedly contain information that the proposed site cannot meet radiation safety standards [JURIST report] mandated by the Environmental Protection Agency (EPA) [official website]. Later that year Nevada filed suit in the DC Circuit Court challenging the DOE's Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) governing the transportation of waste to Yucca Mountain, alleging that both violated the National Environmental Policy Act. The court declined to review a DOE proposal to move nuclear waste to the repository by rail, finding that some claims by Nevada lacked merit [JURIST report] while others were unripe. The application for the repository has been pending since 2008 when it was filed by former president George W. Bush. The repository was approved by Congress in 1987 to contain highly toxic waste from nuclear complexes that built atomic bombs during the Cold War.

Full post as published by JURIST - The Paper Chase on July 05, 2010 (boomark / email).