The entrance to the Yucca Mountain nuclear waste repository located in Nye County, Nevada. (Getty Images)
By RAJU CHEBIUM
Gannett Washington Bureau
WASHINGTON -- South Carolina turned to a federal appeals court Tuesday to resolve a legal question in its fight with the administration over storing nuclear waste in Nevada.
Lawyers representing South Carolina and Washington state said the1982 Nuclear Waste Policy Act allows them to sue the administration anytime they want over the Energy Department's decision to abandon plans to store nuclear waste deep underground at Yucca Mountain, Nev. Administration lawyers countered that the states erred in filing suit before the U.S. Nuclear Regulatory Commission rules on the administration's actions.
Tuesday's arguments before a three-judge panel of the U.S. Court of Appeals for the District of Columbia did not focus on the broader issue most important to states with nuclear plants within their borders: whether the Energy Department was scientifically justified in shuttering the Yucca Mountain project.
Andrew A. Fitz, Washington state's assistant attorney general, said after the hearing he had expected it to focus on technical details.
"The question is whether we have to wait for the process with the NRC to play itself out before we are able to come into this court and make our substantive arguments," said Fitz, who argued on behalf of both states. "We think that the law gives us the ability to come to this court directly."
Ultimately, the two states want federal judges to tell the Energy Department to revive plans to build a nuclear waste storage facility at Yucca Mountain, but first they must win on the timing issue debated Tuesday.
Ellen J. Durkee, a Justice Department lawyer representing the White House, said states can turn to the courts only after the NRC's final word on Yucca Mountain. Durkee told the judges she doesn't know when the NRC will made a decision.
Last June, the agency preliminarily rejected the Energy Department's bid to withdraw its license application for the Yucca Mountain project, which was submitted in 2008 under President George W. Bush.
The Obama administration has appealed to the NRC commissioners.
Fitz said federal courts must step in now because the judiciary - not the NRC - has the power to order the administration to resume work on Yucca Mountain. Additionally, the NRC, citing imminent budget shortfalls, has suspended work at Yucca Mountain, he said.
The Obama administration announced last year it was scrapping the Yucca Mountain project, bowing to objections from officials in Nevada and from Senate Majority Leader Harry Reid, who represents the state. South Carolina and Washington state, which have millions of tons of radioactive waste awaiting final disposal, filed suit to reverse the administration's decision.
South Carolina's waste is stored at the Savannah River Site and at nuclear power plants, where it's safe for now.
The administration's decision to back away from Yucca Mountain means the country still has no plan for permanently storing the more than 70,000 tons of waste piling up at the nation's 104 nuclear power plants. The issue arose just after World War II and no solution emerged until Bush recommended the Yucca Mountain site to Congress in 2002.
President Barack Obama said in January last year he would create a panel to recommend permanent disposal methods. Its recommendations are due in January 2012.
Even if the panel recommends storing nuclear waste in a "deep geologic" repository, administration officials have told Congress Yucca Mountain isn't a candidate.
Taxpayers have spent about $10 billion on exploratory work at Yucca Mountain, including building a deep tunnel.
South Carolina Attorney General Alan Wilson, who wasn't at Tuesday's hearing, blasted the Obama administration for giving up on Yucca Mountain.
"The government's decision to arbitrarily break federal law and derail Yucca Mountain is wrong and unconstitutional," Wilson said in a statement. "Congress passed laws to build Yucca Mountain as a safe repository for America's nuclear waste."