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Feds must act on Yucca Mountain nuke-waste site permit: Judge

Julie Jacobson / AP file

In this photo taken April 26, 2011, Rep. Michael Burgess, R-Texas, uses his cell phone to take a photo of the entrance to Yucca Mountain in Mercury, Nev. A federal judge has ordered the Nuclear Regulatory Commission to act on a permit request for the site.

A federal appeals court said on Tuesday that the Nuclear Regulatory Commission can no longer delay a decision on whether to issue a permit for the long-stalled nuclear waste project at Yucca Mountain, Nev. 

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 license the project or reject the application. 

The Obama administration, which picks the Senate-confirmed commissioners, wants to abandon the project.

Judge Brett Kavanaugh said the commission "has continued to violate the law governing the Yucca Mountain licensing process."

The ruling was not unexpected, for the court signaled in a decision last year that it would likely rule against the commission unless Congress specifically voted to terminate the project. Congress has not taken any action.

The states of Washington and South Carolina, the National Association of Regulatory Utility Commissioners (NARUC) and other parties have sued the NRC, saying the commission must continue to work on the Energy Department's Yucca application even though the Obama administration has said it wants to abandon the project and Congress has not appropriated enough funds.

Philip Jones, president of NARUC, said in a statement that the ruling would direct the commission "to comply with the law and continue its legally obligated review of the license."

The commission had said in May 2012 that it only had just over $10 million left to spend on the project.

In a dissenting opinion, Chief Judge Merrick Garland said the lack of funds makes the court's ruling limited in impact 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."

The five NRC commissioners were split 2-2, with one recused, when they voted in September 2011 on whether to reverse an Atomic Safety and Licensing Board decision that said DOE could not withdraw its application. Despite there being no majority, the commission said that no action would be taken to restart the project.