The federal government may lack the cash needed to reopen the proposed nuclear waste dump at Nevada's Yucca Mountain, even if a court orders an agency review of the canceled project to proceed.

A federal appeals court signaled that it might force the Nuclear Regulatory Commission to continue reviewing the proposed waste site as the nation's first geologic repository (Greenwire, May 2).

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit expressed concern that allowing NRC to halt its review of the Yucca license because of budget constraints when it still has money on hand could set a bad precedent. NRC stopped reviewing the project after the Obama administration abandoned the effort two years ago.

Petitioners -- the states of Washington and South Carolina, a utility regulators group, two counties and several individuals -- are asking the court to review how much money the NRC and Energy Department have on hand to continue reviewing the site, an obligation under the Nuclear Waste Policy Act.

But administration officials say existing funds to revive the project are limited.

DOE's fiscal 2010 budget request -- the most recent Yucca project cost estimate -- says it could cost up to $15 million a month to run such a massive operation. A department official said DOE would need to hire teams of researchers and lawyers and maintain massive amounts of project records.

The department currently has about $57 million for the project, and at least $40.3 million of those funds is already committed to other activities, including security at the Nevada dump and paying for a commission that President Obama established to investigate alternatives for storing and disposing of nuclear waste (Greenwire, Jan. 26).

NRC will also face a funding shortfall.

The commission currently has $10.4 million on hand, but the agency says it would cost $5 million and take two years to re-establish a computer system called the "licensing support network" to make all the documents related to the Yucca licensing procedure public. The system would cost an additional $1 million annually to operate and maintain, NRC said.

The three judges also acknowledged the difficulty of resolving the problem. But one judge expressed concern about allowing a federal agency to flout congressional mandates, while another panel member questioned how much the NRC can do without a continuing source of funds (Greenwire, May 2).

Petitioners say even the smallest amount of money from either agency should be used to help reverse the Yucca closure.

Andrew Fitz, senior counsel for Washington state Attorney General Rob McKenna (R), told the court in a filing this week that some of the money DOE has dedicated to activities related to Yucca Mountain could be used for the NRC to license the site. The agencies are legally required to move forward if funds exist, he said.

"We think that the statute gives the NRC and the DOE a duty to move forward to answer the question of whether a construction authorization can be issued for Yucca Mountain," Fitz said in an interview.

The NRC could also take simple and relatively inexpensive steps at the outset to move the review along, he added. The commission could issue a never-released safety evaluation report that includes the NRC staff's views on whether the site would be safe from atmospheric changes, volcanic activity, meteors, earthquakes, corrosion and human intrusion over hundreds of years (E&ENews PM, July 21).

The NRC's Atomic Safety and Licensing Board could also restart the process of hearing hundreds of challenges to the Yucca application, Fitz said (E&ENews PM, June 3, 2008).

"That would be a better process than it is today, to even get those two things done," Fitz said. "It's been completely terminated."