EPA rule subject to change: Legal clause allows courts to scrap radiation standards at Yucca

Mary Manning and Benjamin Grove

Friday, June 8, 2001 | 11:09 a.m.

The Environmental Protection Agency's long-awaited, "finalized" radiation standards for the proposed Yucca Mountain nuclear waste repository are not absolutely final.

According to a fairly routine "severability" clause inserted in the 152-page EPA standards document unveiled Wednesday, federal courts have the authority to review and scrap a part of the standards -- including a limit on radiation that taints ground water near the repository.

That ground water rule is crucial: Nevada leaders say it is vital to protecting residents, and the nuclear power industry says the rule is so strict that it threatens the viability of the proposed dump at Yucca.

The nuclear industry has already sued the EPA over its rules, specifically stating that the ground water rule is unnecessary.

"In its current form, the Yucca Mountain Rule will impede timely disposal of used nuclear fuel and high-level radioactive waste," the lawsuit said.

As courts consider the complaint, the severability clause will become an issue. Such a clause allows judges to toss out a single standard without throwing out the entire rule.

That's why the EPA inserted the clause during an Office of Management and Budget review this year, said Frank Marcinowski, director of the EPA Radiation Protection Division. The aim was to protect the heart of the standards in the face of a court challenge to one provision.

Yucca Mountain, 90 miles northwest of Las Vegas, is the only site being considered as the nation's nuclear waste repository, a permanent burial ground for 77,000 tons of highly radioactive spent uranium fuel.

The EPA has the legal authority to determine how much radiation could leak from the waste into the environment, and EPA officials after two years finalized their rules Wednesday.

The rules include two important standards: a 15-millirem limit on radiation leaks into the environment immediately surrounding Yucca; and a 4-millirem limit on radiation in ground water downstream from Yucca. An average chest X-ray is 5 millirems.

The EPA's rules become final on July 6.

But a court challenge to the standards has already been launched. This week the nuclear energy industry promptly asked two federal courts to throw out the ground water standard.

The Nuclear Energy Institute, the industry's top lobby group, on Wednesday filed a five-page suit in the U.S. District Court for the District of Columbia alleging the ground water rule is "arbitrary" and "unjustified." NEI also filed a two-page petition to the U.S. Court of Appeals for the District of Columbia Circuit requesting a court review of the standard.

The lawsuits were filed just hours after the EPA unveiled its final rules on its website.

"We knew we had several options after the EPA issued its draft rule (in August 1999) and litigation was one," NEI lawyer Ellen Ginsberg said.

Many real estate agreements, employer-employee contracts and other regulations contain severability clauses, allowing future adjustments without cancel ing the entire agreement or regulation, legal experts said.

For example, a severability clause in patients bill of rights legislation now being considered in Congress could one day protect the bulk of the law, even if courts scrap one provision.

Of course, one other body could challenge the EPA standards: Congress. But that looks less and less likely this year.

The Senate's leading Yucca Mountain supporter, Sen. Frank Murkowski, R-Alaska, this week acknowledged the Yucca project faces strong opposition in the new Democratically controlled Congress.

Senate Majority Leader Tom Daschle, D-N.D., standing alongside Sen. Harry Reid, D-Nev., at a Las Vegas fund-raiser last month declared Yucca "dead."

Sen. Jeff Bingaman, D-N.M., chairman of the Senate Energy Committee, also this week said Yucca legislation is unlikely this year.

In the House, Reps. Shelley Berkley, D-Nev., and Jim Gibbons, R-Nev., do not expect any of their House colleagues to challenge the EPA standards this year, their aides said.

Congress has revised EPA standards before: lawmakers changed rules governing air and water contamination at Yucca Mountain in the early 1990s.

Energy Secretary Spencer Abraham could make his official recommendation on Yucca Mountain to President Bush by the end of this year or next year. His recommendation would be based in part on whether Yucca could meet the strict ground water radiation limit.

The repository would open in 2010 at the earliest.

Sun wire reports

contributed to this article.