By Steve Tetreault

WASHINGTON — Federal appeals judges indicated Wednesday they were troubled over the licensing shutdown of Yucca Mountain, but they struggled whether the nuclear waste project might be too dead to order it revived.

Both sides faced sharp questioning in the case that pits the Nuclear Regulatory Commission against plaintiffs that include South Carolina and Washington state that hold millions of gallons of nuclear waste with no promise of a place to send it ever since the Nevada repository plan was terminated.

Nye County, which views the Yucca project as a potential economic boom if it were to be built on the edge of the Nevada Test Site, also is a plaintiff in the case. Darrell Lacy, director of the Nye County Nuclear Waste Project Office, was in court alongside Robert Andersen, the county’s Washington, D.C. attorney.

The case before a three-judge panel in the U.S. Court of Appeals for the District of Columbia is the last remaining legal challenge to the Obama administration that began closing out the program in 2009 and set out to develop a new waste strategy.

In a courtroom crowded with lawyers, industry representatives and former Yucca Mountain managers, Washington state Assistant Attorney General Andrew Fitz argued the NRC acted improperly to close out repository licensing last year and should be ordered to resume it.

A federal law still in effect requires the agency to complete the license review and ultimately issue a safety decision, Fitz said.

The NRC, he said, “chose to abdicate its duties. The NRC’s duty is to comply with the law.”

With $10 million left over in a repository budget, the NRC could resume the license case for some period of time and release key reports containing its staff’s views on whether the Yucca site might be safe, Fitz said.

The hope, according to Yucca proponents, is that Congress at some point might resume funding that has been zeroed out for the past two years, although Nye County was able to pick up $3.8 million in Payment Equal to Taxes in January after some arm twisting.

Judge Brett Kavanaugh said the case presents a worrisome “shift of power” if an executive agency can “disregard a statutory mandate even if there is money remaining.”

Judge A. Raymond Randolph said the NRC “acting in defiance of a congressional mandate” may have influenced Congress not to appropriate more money for the program.

But whether the court agrees with the plaintiffs, recourse might be limited, said Judge Merrick Garland.

“How do we draw the line to issue orders to agencies to do things that Congress hasn’t given them the money to do?” Garland asked. Congress did not appropriate money for Yucca Mountain last year “and doesn’t that tell us something?”

“It doesn’t matter if the NRC misbehaved in the past, the question is what do we do for the future?” Garland asked.

Fitz noted U.S. Department of Energy Secretary Stephen Chu has told Congress DOE would revive the Yucca program if ordered, but Garland said “in the end it depends on whether they have the money.”

NRC senior attorney Charles Mullins also came under sharp questioning.

“How can the agency justify ignoring a mandate?” Kavanaugh asked him.

Mullins said repository licensing was brought to a halt out of prudence, after the White House requested no funding for 2012, and the agency anticipated that Congress would agree.

“In this case the agency did not have enough money to continue in a meaningful matter,” Mullins said. “The commission did not feel it appropriate to throw good money after bad.”

Kavanaugh was not satisfied. “That is not a good enough reason to ignore a statutory mandate,” he said. “Your whole theory is based on predicting that Congress will do zero funding . What kind of theory is that?”

Mullins said the remaining $10 million would not buy much. It would cost the NRC $6 million just to reinstate its electronic database of Yucca documents.

Martin Malsch, an attorney representing Nevada, said the state sided with the NRC. He told judges that resuming Yucca Mountain licensing for a short period would be burdensome for the 14 parties that are participating if the process is brought to a halt again.

“If it were to be restarted, all the burdens and complexities would come to the fore,” he said.

Andersen, Nye County’s attorney with Clark Hill in Washington, D.C., said the county was in the process of having its contentions with the licensing agreement negotiated with the DOE when the application process was terminated. He charged the DOE and the state of Nevada did nothing to comply with requests for discovery from June 30, 2010 to Dec. 9, 2011, even though there was no legal stay in the proceedings.

“We want to get to the point where it’s determined if it’s either safe or unsafe. We want them to go forward with it. One of the things we asked for in our pleadings and in front of the court yesterday is for the safety evaluation reports, if nothing else, the safety evaluations reports that assess both the pre-closure and the post-closure safety issues and it gives the staff’s recommendation on whether it’s safe and whether or not the regulations were met. Those were completed and the chairman directed that the conclusions be stripped from them,” Andersen said.

The real question for the court is what the writ of mandamus should say, can the court structure a remedy and whether it would be meaningful, Andersen said. He said Garland was the judge on the panel that was partially sympathetic to the NRC for having the lack of funds to complete the application. But Kavanaugh noted very few multi-year projects funded by Congress are funded up front.

“If we follow the position NRC is positing to go forward, there’s no project that would be safe. Any time the administration finds a project they don’t want any more, they could simply back out of it,” Andersen said.

At 5 p.m. Wednesday Andersen said the court issued an order asking the U.S. Department of Justice to submit a brief on whether a writ of mandamus should be issued. The court also wants to know if the DOE will intervene, he said.

“It’s always risky to make a prediction based on oral arguments,” Andersen said. But he added, “it was clear that the entire panel was concerned that NRC appeared to have just ignored the law for two years and its statutory duty and then was standing behind the principle that they couldn’t do anything meaningful because they have no more money, even though they had money when they closed down the process.”

Pahrump Valley Times senior staff writer Mark Waite contributed to this report.