Nevada, feds face off over Yucca funding

WASHINGTON - An attorney for Nevada tried to convince a federal appeals court Monday that the state was shortchanged $4 million last year to fight the proposed Yucca Mountain nuclear waste dump.

But a lawyer representing the Energy Department argued that the $1 million Nevada got in 2004 was just what Congress intended, and the state had no right to demand more.

"Nevada seems to view the $1 million appropriation as essentially a floor," Justice Department attorney Ronald M. Spritzer told a three-judge panel of the U.S. Court of Appeals for the District of Columbia.

"When Congress makes an appropriation, it is a ceiling."

Nevada contends that under the federal Nuclear Waste Policy Act, it should get the additional money from a "nuclear waste fund" paid for by companies that use nuclear power. The state says the law allows Nevada the money for scientific studies and to oversee the Energy Department's application for a license from the Nuclear Regulatory Commission to build the dump.

"There's nothing about that $1 million appropriation that says, by the way, you shouldn't make grants under the waste fund," said Nevada attorney Robert Cynkar.

Judges exhibited some skepticism about Nevada's arguments.

"Doesn't that suggest that's what Congress intended Nevada to get?" Judge David Tatel asked Cynkar.

"Your theory is that Nevada's entitled to whatever it needs" out of the waste fund, Tatel said.

The lawsuit, which Nevada filed last March, is part of the state's ongoing effort to block federal plans to bury 77,000 tons of radioactive waste beneath Yucca Mountain, 90 miles northwest of Las Vegas.

Despite opposition by Nevada lawmakers, Congress and President Bush approved the Yucca project in 2002. The Department of Energy planned to submit a license application by December 2004 and open the dump in 2010.

But a partly unfavorable ruling from the appeals court in July set back the government's schedule. That ruling said the government's plans for Yucca did not go far enough to protect people from potential radiation beyond 10,000 years in the future.

Judge Tatel was also on the three-judge panel that issued that ruling, and he asked for updates on where the government stands in developing a new radiation standard and readying its license application.

Spritzer, the government's attorney, said no new date for submitting the application has been set. Cynkar said Nevada officials expect the application in late spring or early summer.

The three-judge panel was composed of judges Raymond Randolph, Stephen Williams and Tatel.