State readies federal suit over Yucca standards

Friday, Dec. 14, 2001 | 9:43 a.m.

CARSON CITY -- The final touches are being put on a federal lawsuit to overturn new Department of Energy regulations that lower the safety standard for storing high-level nuclear waste at Yucca Mountain.

The regulations, which go into effect today, allow the DOE to use containers to protect the environment from radioactivity rather than natural geologic barriers. The state will contend in the suit that the Energy Department is using the containers to make Yucca Mountain safe.

The earliest a suit could be filed would be Monday in the Circuit Court of Appeals in Washington, state Attorney General Frankie Sue Del Papa said.

State Solicitor General Tony Clark said the suit charges that the regulations do not comply with the 1982 Nuclear Waste Policy Act that sets the standards for burial of the highly radioactive material.

The original act of Congress was fashioned to protect the public and the natural resources from contamination. Congress said the best method was to bury the material in a location where the rock formations would prevent leakage of the radioactivity into the air or into the underground water.

The new regulation allows the Department of Energy to rely on a combination of metal storage containers and natural geological barriers to satisfy the environmental standards.

Clark said the standard is to protect against leakage for 10,000 years, but nobody knows whether these new metal containers will be able to meet that standard.

Del Papa said the suit is being prepared by her staff and special counsel Joe Egan in Washington.

The Energy Department is looking at a plan to store the nuclear pellets in cylindrical casks in tunnels that it says meet the standards of the Environmental Protection Agency.

The attorney general said an affidavit of Victor Gilinsky, a former member of the Nuclear Regulatory Commission, will be attached to the suit to back up the Nevada claim, the attorney general said.

The new regulation by the Department of Energy is "a radical and imprudent departure" from the current rule, Gilinsky said, adding that the regulation becoming effective today "is inconsistent with Congress' mandate for safe and environmentally acceptable disposal of high level radioactive as was expressed in the Nuclear Waste Policy Act.

The federal law wanted a site with "favorable geologic characteristics" and that means it would provide "effective natural barriers to isolate the waste from the livable environment for extremely long times," Gilinsky said.

The Department of Energy is "not free to choose an inferior site because it has a waste container it thinks sufficiently durable to compensate for the site's deficiencies," Gilinsky said.

Del Papa said the state also is gearing up for a second suit when a final environmental impact statement is issued in February.

That impact statement does not deal with the issue of transportation of the waste across the country or with the possibility of a terrorist attack, Del Papa said.

In light of the events of Sept. 11, Del Papa said failure to consider a terrorist attack is a major flaw in the upcoming environmental impact statement.