Federal judges are again being asked to solve a difficult problem that lawmakers can’t fix: the decades-old morass of how to handle tons of nuclear waste lying in temporary storage around the country.
A panel of federal appellate judges on Wednesday will hear arguments in a lawsuit filed by South Carolina and Washington state seeking an end to a political stalemate that now could be linked to the presidential election.
The states want the judges to force the Nuclear Regulatory Commission to decide whether the Energy Department has properly withdrawn its application for a nuclear-waste site at Yucca Mountain in Nevada. Until that decision is made, nothing can move forward unless Congress decides to act.
Congress passed a law in 1987 requiring that a central waste repository be dug beneath Yucca Mountain, 90 miles northwest of Las Vegas, but Nevada politicians’ fierce opposition has stymied the project.
While 36 states are holding waste from active or decommissioned nuclear power plants, South Carolina and Washington have more waste – and more toxic waste – than others. The Savannah River Site in South Carolina and the Hanford Site in Washington contain large amounts of waste from plutonium used in former nuclear-weapons production.
South Carolina Attorney General Alan Wilson said Monday that his state was suing the U.S. Energy Department because it had stopped building the Yucca dump despite failing to get the required approval from the Nuclear Regulatory Commission to abandon the project.
“They unilaterally withdrew their license application,” Wilson said. “They’re not enforcing the law that was passed.”
The Energy Department declined to comment on Wilson’s claim or on the pending lawsuit before the U.S. Court of Appeals for the District of Columbia.
The government has spent $10 billion to develop Yucca, but President Barack Obama stopped providing more money for it two years ago, and appropriators in the Democratic-controlled Senate have followed suit.
An additional $21 billion – collected via surcharges on nuclear power users – sits unused in a fund that was set up to pay for the Yucca site. In a separate legal challenge, state regulators have asked federal appellate judges for the authority to allow nuclear utilities to stop collecting the fees from users.
Sen. Lindsey Graham, a Republican from Seneca, S.C., is pushing legislation to refund the money already collected from nuclear power customers, including $1.4 billion paid by South Carolinians.
Republicans accuse Obama of putting politics over an important policy matter in order to help Senate Majority Leader Harry Reid of Nevada, who was barely re-elected in 2010 after a stiff fight against GOP challenger Sharron Angle.
Two years later, the dispute over Yucca remains mired in accusations of politics. Nevada, where opposition to acquiring nuclear waste is widespread, is a key swing state that could help determine whether Obama himself is re-elected in November
“Yucca Mountain is closed for only one reason: politics,” said Rep. Jeff Duncan, a Laurens, S.C., Republican whose congressional district is home to the Savannah River Site.
“The government has no right to move away from the Yucca Mountain solution without at least first having a concrete plan to deal with the waste,” Duncan said.
Duncan introduced a bill in March that would reactivate the Yucca waste project as part of a broader plan to expand American energy production.
Aiken County, S.C., where the Savannah River Site is, also is a lead plaintiff in the South Carolina and Washington state governments’ lawsuit seeking to force a decision by the NRC.
If opposition to Yucca is bipartisan, some criticism of the Obama administration’s handling of the controversy also has crossed party lines.
Rep. Norm Dicks, a Bremerton, Wash., Democrat, is working with Republicans in the House of Representatives to try to restore funding for the Yucca dump.
“The administration’s position to close the Yucca site runs counter to the law of the land that Congress passed back in the 1980s,” Dicks, the senior Democrat on the House Appropriations Committee, said in April.
But in the Senate, Sen. Dianne Feinstein, a San Francisco Democrat with close ties to Reid, is the chairwoman of the Appropriations energy and water development subcommittee, and she didn’t include funds for Yucca in a spending bill the panel approved last week. The Feinstein measure would authorize the Energy Department to explore moving nuclear waste to temporary aboveground storage sites from the fuel-rod ponds where much of it languishes at nuclear power plants.
A presidential-appointed panel recommended in January that the government find a new location for storing nuclear waste. It said community support was crucial for such a sensitive project and that building a dump amid intense local resistance was unfeasible.
The problem for judges is that existing federal law mandates the Yucca site as the national waste repository.
The law permits the NRC to block or slow waste storage at Yucca if it would harm the environment or create safety risks. An administrative panel of the NRC ruled in 2010 that the Energy Department, in seeking to withdraw its license application to build the Yucca dump, had presented insufficient scientific evidence of such risks. But the full commission, which must approve or reject that ruling, deadlocked in a 2-2 vote last September, leaving the project in limbo and without funding.
The NRC chairman, Gregory Jaczko, is a former aide to Reid. Immediately after the commission’s tie vote, Reid issued a statement saying the result had effectively killed the Yucca waste site.