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Court "orders the doing of a useless act": federal appeals panel orders NRC to resume Yucca dump licensing despite next to no funds

Jim Day, Las Vegas Review Journal, 2010 (be sure to court the toes!)

The Yucca Mountain radioactive waste dump zombie's sixth toe twitched today.

By a 2-1 split decision, a three judge panel of the federal Court of Appeals for the District of Columbia Circuit approved a writ of mandamus sought by the States of Washington and South Carolina, et al., ordering the U.S. Nuclear Regulatory Commission (NRC) to resume the licensing proceeding for the proposed Yucca Mountain national dumpsite for high-level radioactive waste (HLRW). NRC had suspended the proceeding for lack of congressionally appropriated funding in 2011.

Two of the appeals judges felt the $11.1 million remaining in NRC's Yucca licensing coffers is a substantial amount of funding with which to resume the proceedings.

But Chief Judge Garland disagreed, pointing out that in its last fully funded year of the proceedings, NRC budgeted nearly $100 million. Since, NRC has largely dismantled its digital and physical infrastructures for even conducting the proceedings, as has the former license applicant, the U.S. Department of Energy, which has moved to withdraw the license application, and has let go or transferred its Yucca program staff.

He also pointed out that Yucca's ultimate price tag would require Congress to approve not just over $100 million per year in licensing support, but, if the application is ultimately approved, many tens of billions of dollars to carry out construction and operation (DOE's last estimate for the total cost of Yucca, should it proceed, made several years ago, was nearly $100 billion).

Chief Judge Garland then dissented to the ruling, arguing that what little money NRC has remaining should be used to preserve the existing records from this largest licensing proceeding in the agency's history, writing:

"In short, given the limited funds that remain available, issuing a writ of mandamus amounts to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again."

Extensive media coverage of the court decision, and reactions to it, are posted at the State of Nevada's Agency for Nuclear Projects "What's News" website.