Article by Erik Smith. Published on Friday, July 30, 2011 EST.

New Lawsuit Comes as Obama Administration Panel Says Nation Should Start From Scratch


$10 billion has been spent so far on the Yucca Mountain nuclear waste repository in Nevada.

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, July 29.—Washington Attorney General Rob McKenna is ratcheting up the state’s effort to prevent the Obama Administration from abandoning the Yucca Mountain nuclear waste repository, even as a presidential commission Friday surprised no one by recommending the nation start from scratch.

            McKenna announced a new lawsuit that aims to force the Nuclear Regulatory Commission to make a decision about the nuclear waste repository – a necessary procedural step before the states of Washington and South Carolina can challenge the closure in court. They say it is a waste for the Obama Administration to dismantle a quarter-century of work and throw away the $10 billion spent so far. More importantly, they also say it is illegal.

            The project was the culmination of a site-selection process that started in 1982 to find a permanent burial ground for the nation’s high-level nuclear waste. It was junked last year on orders from the Obama Administration, prodded by Senate Majority Leader Harry Reid of Nevada.

While the Department of Energy scrambles to dismantle what has been built so far, the Nuclear Regulatory Commission, another agency controlled by the Obama Administration, has refused for more than a year to issue a ruling on whether the decision is appropriate. Until it does so, the D.C. Circuit Court of Appeals says it can’t hear a lawsuit that has been filed by Washington and other plaintiffs.

            It’s a big issue for Washington state. Some 45 years worth of liquid nuclear waste is slowly oozing into the ground from storage tanks at the Hanford Nuclear Reservation, formerly a crown jewel of the nation’s A-bomb and H-bomb industry. If Yucca Mountain doesn’t open, where does the waste go? Does it go anywhere?

            President Didn’t Have Authority

            As McKenna was announcing the new lawsuit in Seattle Friday, a presidential commission released a report saying the country ought to start looking for a new site. The blue-ribbon panel doesn’t say where it ought to go. But many members of the commission believe that New Mexico, already home to a nuclear-waste storage site, might be more willing to go along with the idea.

            McKenna said he has a better idea: The federal government ought to keep its promise. “It has been suggested that Sen. Reid’s opposition to this facility led directly to the Obama Administration’s decision to try to pull the plug on it,” McKenna said.  “The problem with that approach is that the Department of Energy and the administration don’t have that authority. And in order for the direction to be changed, Congress needs to change the law.

            “They went through a decades-long process that resulted in Congress deciding that the nation should move forward with Yucca Mountain. Congress decided that as a part of that, the Department of Energy would have to go through a licensing process with the Nuclear Regulatory Commission to provide for safety, to make sure that it is properly designed.

“You can’t short-circuit that through the executive branch when the law of the land is made by the legislative branch, through Congress. And obviously Sen. Reid hasn’t had the votes to change it in Congress, so he has taken this different approach, working with the administration to try to take this project apart.”

An Irony That Cost $10 Billion

McKenna called the Obama Administration’s decision a ‘terrible waste,’ and said he is concerned that the closure of the Yucca Mountain facility will leave Hanford high and dry. You can call it the most expensive irony in the nation’s history.

Back in the ’80s, Hanford was the top political issue in this state – at least as far as Seattle-based politicians and environmental groups were concerned. They won the battle to shut down the state’s “bomb factory,” at the expense of thousands of jobs in the Tri-Cities, 200 miles away, out of sight and out of mind. But the local economy eventually recovered after the state negotiated a deal with the feds to clean up the 56 million gallons of nuclear waste stored at the site. Under the plan, the Department of Energy will build and operate a $12 billion plant that will convert nuclear waste into glass logs and encase it in steel casks. These days the deadlines keep slipping, depending on how much presidents and Congresses are willing to spend, though McKenna said he believes the project is back on track.

Yucca Mountain was an essential part of the plan. That’s where the logs are supposed to go. Their containment vessels are designed for underground storage. But Yucca Mountain ran afoul of precisely the same political conflict that launched the Hanford cleanup program. Voters in urban Las Vegas, a hundred miles away from the site, didn’t much relish the thought of their state becoming the new home of the nation’s nuclear waste.

But too much time, effort and money has gone into this project to turn back now, McKenna said.

            No Alternative

“I want to point out that there is no current alternative to Yucca Mountain,” McKenna said. ” Given our nation’s track record of more than 50 years spent working for a permanent solution on high-level radioactive waste, there may never be one if Yucca Mountain is dismantled.

“If Yucca Mountain never opens, we may be stuck indefinitely in Washington state with large amounts of high-level radioactive waste that resulted from that plutonium production for atomic weapons over 45 years. And even if another repository site would be developed someday, there is no guarantee that the waste produced from the Hanford will be acceptable for disposal at the new site, whereas the waste treatment plant has been designed and the waste has been prepared to fit in the design for Yucca Mountain. We filed today’s action because this is an unacceptable situation we will continue to fight until the federal government carries out its duties as determined by Congress, until it follows the law made by Congress, and completes the repository at Yucca Mountain.”

Obama Strategy is Clever

Last year, Washington sued the Obama Administration to overturn the closure, joined by South Carolina and Aiken County in that state, where the Savannah River nuclear installation is located. Other plaintiffs include Nye County, Nevada, where the repository is located and where local officials support the project; the National Association of Regulatory Utility Commissioners, and a group of leading Tri-City business figures, including Bob Ferguson, Bill Lampson and Gary Peterson.

But that lawsuit appears to have been blocked by a clever Obama Administration strategy.

Here’s how it worked. The Department of Energy was supposed to get a permit for the Yucca Mountain project from the federal Atomic Safety Licensing Board. It applied in 2008, before the new president got to town. Then Obama issued an executive order canceling the project in 2010. The Department of Energy attempted to withdraw its application. The board said it couldn’t. That kicked the matter to the Nuclear Regulatory Commission, which was supposed to review the decision. But that was more than a year ago. It has done nothing.

Until the NRC issues a ruling, the court says the case isn’t “ripe.”

The latest lawsuit is a writ of mandamus – an appeal directly to a court urging it to tell government officials to fulfill their duties. In this case, McKenna said, the NRC clearly is shirking a responsibility that was mandated by Congress.

“The Nuclear Regulatory Commission’s deliberate delay, not only in not issuing a decision on the Atomic Safety Licensing Board’s decision to deny DOE, but in not even giving us an indication [of its schedule] denies us the opportunity to seek remedy in court,” McKenna said. “The court acknowledged that in the ruling on our original case, and it is very important that the NRC be forced to do its job.

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