A federal appeals court ruled on Tuesday that the Nuclear Regulatory Commission can no longer delay a license for a stalled nuclear waste storage project in Nevada— a victory for South Carolina officials who are concerned about some of the waste currently stored at the Savannah River Site.
On a 2-1 vote, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ordered the commission to promptly decide to either license the Yucca Mountain repository or reject the application.
South Carolina joined a lawsuit with Washington state, the National Association of Regulatory Utility Commissioners (NARUC), Aiken County, and other parties against the NRC. The lawsuit claimed the commission violated the law by sitting on the Energy Department’s Yucca Mountain application. The Obama Administration has said it wants to abandon the project.
Yucca Mountain was selected in 2002 as the Energy Department’s spot to store nuclear waste. Some of the waste is currently held at the Savannah River Site in South Carolina, along with commercial reactors around the country. The Energy Department canceled the project in 2009, citing environmental concerns. But in June 2010, the Atomic Safety and Licensing Board said the agency lacked the authority to do that because Congress originally set up the repository.
The court sided with the board. “[U]nless and until Congress authoritatively says otherwise or there are no appropriated funds remaining, the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process,” Circuit Judge Brett Kavanaugh wrote.
South Carolina Attorney General Alan Wilson praised the court’s ruling. “This decision reaffirms a fundamental truth: the President is not above the law. His administration cannot pick and choose which laws to follow and which to ignore,” Wilson said in a statement.
However, even with the ruling, the project has an extremely uncertain future. Congress has not funded Yucca Mountain for the past few years due to the inaction. And the NRC said in May 2012 that it only has about $11 million remaining to cover its costs.
In his dissenting opinion, Chief Judge Merrick Garland said the lack of funds makes the court’s ruling useless because it amounts to “little more than ordering the commission to spend part of those funds unpacking its boxes, and the remainder packing them up again.”
Wilson agreed that the ruling is no guarantee that waste will be moving from South Carolina to Nevada anytime soon, since the NRC could still (and likely will) reject the application. “But they weren’t even going to do that before,” the attorney general told South Carolina Radio Network. “The deadline has come and gone.”
Part of the contention is that utilities which own nuclear plants were required to pay the federal government 0.1 cent for every kilowatt per hour generated by those plants. That eventual $1.3 billion fee, which was passed on to ratepayers, was used to construct Yucca Mountain.