WASHINGTON (AP) - A federal appeals court is considering whether
it can force the Nuclear Regulatory Commission to move forward on a
licensing plan for a disputed nuclear waste dump at Nevada's Yucca
An attorney for the state of Washington says the NRC broke the law last fall when it allowed the Obama administration to continue plans to close the controversial site, 90 miles northwest of Las Vegas.
The NRC cited "budgetary limitations" imposed by Congress in approving the shutdown.
Andy Fitz, a lawyer for the Washington attorney general's office, said the NRC violated a 1987 law designating Yucca Mountain as a national repository for nuclear waste.
"The agency can't ignore the law simply because it thinks it won't get money (for the project) in the future," Fitz told a three-judge panel of the U.S. Court of Appeals for the District of Columbia.
The nation "will never have a nuclear waste site if the executive (branch) doesn't follow the laws of Congress," Fitz said.
Judge Brett M. Kavanaugh, a Republican appointee, appeared sympathetic, asking a lawyer for the NRC to explain how the agency
could ignore the statue requiring action on the Yucca Mountain application.
"If it's just, `we don't like it,' well that's not good enough," Kavanaugh said.
Charles Mullins, a senior NRC attorney, said the order to stop work on the project was based on "reality," since the Obama administration canceled the project in 2009 and Congress did not appropriate money for it in the current budget year. It is not clear whether Congress will approve money for Yucca Mountain next year either, Mullins said.
The agency has about $10 million it could spend from previous budget years, but Mullins said that would be futile, since the project is unlikely to go forward under the current administration.
"Let's not throw good money after bad," he said.
Judge Merrick B. Garland, a Democratic appointee, said that by failing to approve money for the project this year, Congress had spoken.
But Kavanaugh said it was premature to assume that Congress will
again fail to approve money for Yucca Mountain, noting that negotiations for the budget year that starts Oct. 1 were ongoing.
"You can't guarantee zero funding" in 2013, Kavanaugh told Mullins, adding, "Your whole theory is based on predicting what Congress will do."
Judge A. Raymond Randolph, a Republican appointee, said allowing
the NRC to disregard the 1982 law "would be a shift of power from
Congress to the executive," who is choosing not to spend money
Congress has appropriated.
Randolph also asked why Congress had chosen not to "take a drop" of a $26 billion nuclear waste fund collected from nuclear power companies over the past several decades.
Washington state and South Carolina are among those that filed a
lawsuit seeking to force the NRC to rule on the Yucca Mountain
application. A decision is expected later this year.
A lawyer for the NRC said the order reflected reality, since the Obama administration canceled the project and Congress did not appropriate money for it.
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