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United States Court of Appeals for the District of Columbia Circuit
October 18, 2005, Argued ; August 8, 2006, Decided
[*81] [**435] KAREN LECRAFT HENDERSON, Circuit Judge: Since scientists split the atom in 1942, nuclear technology [***2] has proliferated into many areas of society. No longer limited to the defense of our nation, nuclear technology is used in energy production, medical diagnosis and treatment, food processing and agriculture and sterilization of consumer goods. For all of the advances it has brought, however, those advances have come at a price--the waste that is the inevitable byproduct.
What to do with the waste has plagued scientists and policymakers for decades. As a result of scientific, political and regulatory consultation and comment, the consensus is that the waste should be stored in an underground repository to be located at Yucca Mountain, Nevada (Yucca). The State of Nevada (Nevada), concerned about the storage of nuclear waste within its borders, has vigorously opposed the construction of a nuclear repository at Yucca and, after failing in the political and regulatory arenas, has attacked the statutory and regulatory scheme governing the construction and operation of the Yucca repository. See Nuclear Energy Inst., Inc. v. EPA, 362 U.S. App. D.C. 204, 373 F.3d 1251 (D.C. Cir. 2004).
In this petition for review, Nevada asks us to review both the Final Environmental Impact [***3] Statement (FEIS) and that portion of the Record of Decision (ROD) the Department of Energy (DOE or Department) issued governing the transportation of nuclear waste from the production sources to Yucca. Nevada alleges the FEIS is procedurally flawed and therefore violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. It challenges the ROD under the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. For the reasons discussed below, we conclude that some of Nevada's claims are unripe for review and the remaining claims are without merit. Accordingly, we deny Nevada's petition for review.
] The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. §§ 10101 et seq., establishes the process for locating, constructing, operating and closing any repository for spent nuclear fuel (SNF) and high-level radioactive waste (HLW). Under the statutory scheme, the DOE is responsible for the development and operation of the repository once the Nuclear Regulatory Commission (NRC) issues a license for the project under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.
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457 F.3d 78 *; 372 U.S. App. D.C. 432 **; 2006 U.S. App. LEXIS 20238 ***; 36 ELR 20159; 63 ERC (BNA) 1097
STATE OF NEVADA, PETITIONER v. DEPARTMENT OF ENERGY, RESPONDENT
Subsequent History: Motion dismissed by, Moot Nev. v. DOE, 2006 U.S. App. LEXIS 20689 (D.C. Cir., Aug. 9, 2006)
Prior History: [***1] On Petition for Review of an Order of the Department of Energy.
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