Ruling keeps alive Nevada nuclear waste project

States and nuclear facilities that want to ship material to Yucca Mountain have sued to resurrect the plan the Obama administration wants to kill. ‘It is like in a zombie movie, where you shoot off its arms and then its head and it still comes after you,’ says a Nevada official.

In the middle of the Nevada desert, jackrabbits and snakes keep watch over an abandoned, 5-mile-long shaft bored into a mountain.

The tunnel was the first step in the Energy Department’s Yucca Mountain project, where it once hoped to store more than 70,000 tons of highly radioactive waste from the nation’s nuclear reactors.

The Obama administration has shut down the program office, exiled its employees and sought to legally extinguish any chance it could be resurrected.

But like a supernatural creature that refuses to die, Yucca Mountain is being kept alive by a court challenge from a few states that still want to send their nuclear waste to Nevada, opponents of the project say.

“It is like in a zombie movie, where you shoot off its arms and then its head and it still comes after you,” said Bruce Breslow, executive director of the Nevada Agency for Nuclear Projects.

On Friday, a federal appeals court in Washington issued a ruling that will allow a case to go forward disputing the Obama administration’s authority to kill the project. The case was filed by North Carolina and Washington state, which both have large amounts of waste, among other plaintiffs.

In one filing this year, Aiken County, S.C., the jurisdiction close to a nuclear weapons facility with tons of high-level radioactive waste, said it faces “immense future harm” from the attempt to withdraw the license application. Nuclear utilities have separately sued the federal government for billions of dollars for delays in building a dump for their nuclear waste.

In the final year of the George W. Bush administration, the Energy Department filed an 8,600-page application for a license to operate Yucca Mountain. The Obama administration pledged to kill the project, first by starving it of funding and then by withdrawing the license application.

The plan to withdraw the license is being disputed by a licensing board under the Nuclear Regulatory Commission and by the states in the court case.

“There was a method to the Bush administration’s Machiavellian madnesses,” said Marta Adams, senior deputy attorney general in Nevada, who has long litigated Yucca Mountain issues. “They realized that if they could get the project into licensing, it would complicate an attempt to kill it. And they were right.”

The Energy Department didn’t help matters when it sought to kill the project by calling it “unsuitable,” she added.

“It would have much cleaner legally if the Energy Department had said this project is technically flawed or that the license was flawed,” Adams said. “But they couldn’t really say that all of [the Energy Department’s] science since 1977 is junk.”

Indeed, Nevada has long argued that the science behind Yucca Mountain is junk, asserting that waste canisters inside the mountain would corrode thousands of years prematurely and release radioactivity into the environment.

The Energy Department had long contended that the geology of the mountain and the engineering of the waste system would prevent any releases for more than 10,000 years.

Adams acknowledged that after decades in which the Energy Department was viewed as a public enemy in Nevada, it is difficult to embrace the agency as an ally.

Department spokeswoman Katinka Podmaniczky said the agency would not comment on Friday’s ruling and referred questions to the Justice Department. Justice Department officials did not return a phone call seeking comment.

The shutdown of the Yucca Mountain office and the disbanding of its technical team could make it difficult to resurrect the project. But Breslow said he remains concerned about letting the license lie fallow.

If the Energy Department is not allowed to withdraw the application, the project could be resurrected at a time when the state will be less capable of challenging it. In Breslow’s view, the state has a good chance of defeating the license application now.

Meanwhile, this year the Obama administration formed the Blue Ribbon Commission for America’s Nuclear Future, which is supposed to find an alternative disposal plan. It is the latest attempt since the 1970s to resolve the problem of nuclear waste.

ralph.vartabedian@latimes.com