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Supreme Court declines to hear nuclear waste cases Federal site is not ready; states seek compensation


WASHINGTON -- The federal government has missed its deadline for setting up a permanent storage site for 30,000 tons of radioactive nuclear fuel, but the Supreme Court refused yesterday to force it to create a site now.

At the same time, the court declined to protect the government from lawsuits from utilities seeking billions of dollars in damages because they must hang onto their volatile waste piles for up to a dozen more years, at heavy cost.

The government estimates that it will not be ready to start receiving nuclear waste at the planned site -- Yucca Mountain in Nevada, about 90 miles north of Las Vegas -- until 2010. That is 12 years after the Jan. 31, 1998, deadline that was set by Congress in 1982.

Ultimately, the government is obliged to provide a site in a deep mine, where spent nuclear fuel and radioactive waste can be isolated and stored for at least 10,000 years.

But in two orders yesterday, the court without explanation denied review of separate appeals by the government and by 35 states -- including Maryland -- that asked the justices to monitor their high-stakes conflict over nuclear waste. The two actions left the dispute, dating back at least five years, with no certain outcome.

A federal appeals court ruled two years ago that the government had no choice but to meet Congress' 1998 deadline for accepting the waste, at least for temporary storage, while the Yucca Mountain facility is prepared.

But in a ruling in the summer, after the January deadline was missed, the appeals court said it had no authority to compel the government to meet any deadline or to take any specific action to prepare a storage site. Earlier, the appeals court had ruled that nuclear utilities were free to begin making demands, in a federal claims court, for damages from the federal government for its delays.

Those damages would cover the utilities' extra costs in keeping spent fuels in their own storage while waiting for the Yucca Mountain site to be ready. The industry estimates that those costs could exceed $50 billion.

The appeals court bolstered the utilities' claims for damages by ruling that the government could not assert that its delays in preparing the storage facility were unavoidable. Already, a federal judge has ruled that the owners of the Yankee Rowe nuclear plant in Massachusetts are entitled to damages, with the amount to be set later.

The industry contends that government delays will require utilities to set up nuclear waste storage sites at 72 locations around the country, with many of the sites posing potential safety and environmental hazards.

But the government contends that the utilities are exaggerating their likely added costs of storing the waste 50-fold. It calculates that the added costs will be no more than $1 billion.

The 35 states and their public utility commissions went to the Supreme Court to seek a court order to force the government to accelerate its storage preparations in Nevada.

The government also appealed, trying to regain the right to claim that its delays were unavoidable. The court rebuffed both by simply refusing to hear the appeals.

The government does not expect to complete even the evaluation of the Yucca Mountain site until 2001 and says the site won't be ready until 2010.

Boy Scouts challenged

In a separate order yesterday, the court turned aside without comment an attempt by a California policeman to challenge the policy of the Boy Scouts of America to exclude homosexuals as leaders or as Scouts because it does not consider them to be morally sound.

Officer Charles Merino of El Cajon, Calif., who was removed from his leadership of a Scout Explorer post after publicly disclosing his homosexuality, challenged his removal in California courts under state law and lost.

Without having asked the state courts to rule on whether his removal violated the U.S. Constitution, Merino tried to persuade the Supreme Court to decide that question, even though the justices almost never rule on issues not passed upon first in lower courts.

Merino's case is one of several around the country seeking to challenge the Scouts' no-homosexuals policy.

A major test case on the issue is pending in the New Jersey Supreme Court.

Pub Date: 12/01/98

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