State files major brief challenging Yucca plan

Tuesday, Dec. 3, 2002 | 11:05 a.m.

SUN STAFF AND WIRE REPORTS

WASHINGTON -- Yucca Mountain cannot be used for disposal of the nation's nuclear waste, the state of Nevada said in a complex legal brief filed Monday.

The state laid out a long list of old and new arguments against the site, including the contention that the site does not meet criteria that require its natural rock features to contain radioactive waste for thousands of years.

The "case in chief" brief was filed in the U.S. Court of Appeals for the District of Columbia. It is the first brief of a comprehensive new lawsuit in which three other legal challenges filed by the state in past months have been combined.

The brief challenges the guidelines the Department of Energy used to evaluate Yucca, asserts flaws in the department's environmental impact statement for Yucca and challenges Energy Secretary Spencer Abraham's recommendation of the site to President Bush.

The brief asserts that the Energy Department and President Bush violated federal nuclear waste law and environmental law by approving the site.

A series of legal salvos between the state and the Energy Department are expected, with oral arguments expected in perhaps September next year.

President Bush and Congress approved Yucca earlier this year, so the state, along with the city of Las Vegas and Clark County, have turned to the courts in an attempt to delay, and ultimately kill, Yucca.

The brief lays out arguments that the Energy Department has not adequately considered how waste would be transported from the nation's nuclear power plants to Yucca.

It also argues that the department has not considered terrorist or sabotage threats. The lawsuit poses a new theoretical scenario in which a warhead is planted inside a waste container and explodes, triggering a nuclear reaction.

The brief also includes Energy Department projections that if "engineered barriers" -- metal waste containers -- fail, Yucca will leak. According to the department, if man-made casks for the buried waste do not hold, the radiation dose at the site boundary would be six times higher than the rules allow after 1,000 years. After 3,000 years, the dose would be 67 times higher.

Energy Department spokesman Joseph H. Davis said he could not comment in detail because he had not yet seen the 100-page argument. "It's certainly not surprising that perhaps some of the same arguments we heard before are being made by the state," Davis said.

Nevada opponents of the repository have argued before that the Energy Department is trying to make the project acceptable by relying on man-made barriers that cannot reliably be predicted to last for the 10,000 years that the law requires. But the suit includes more details about how the Energy Department has backed away from its initial insistence that the rock alone would contain the wastes.

Since the late 1950s the United States has been seeking what scientists refer to as a "geologic repository" for the nation's most radioactive waste, which is mostly from power plants and nuclear weapons production.

Nevada's brief quotes 20-year-old pronouncements by the Energy Department that "the host rock with its properties provides the justification for geologic disposal and is the main element in containing the waste within the repository and isolating the waste from man's environment for the long term."

The "host rock" at Yucca, a desert ridge about 90 miles northwest of Las Vegas, was formed by volcanic emissions. The main mechanism for waste to escape from the mountain is through rain water seeping down from the summit to the ground water far below. That water flows steadily across the site's boundaries, where it can feed wells and come to the surface in springs.

Government scientists initially believed that water would take between 9,000 and 80,000 years to flow from the repository to the accessible environment. But researchers have discovered fractures in the rock where water flows much faster.

In 1997 scientists found traces of chlorine-36, which does not exist in nature, 1,000 feet inside the five-mile tunnel drilled to explore the mountain's rock. That meant that material produced by nuclear explosions, the first of which was in 1945, had already penetrated through 800 feet of rock. According to the suit, in 1996 the Energy Department said that some water could go from the repository level to the water table, 1,300 feet down, in 50 years, and then flow beyond the site boundaries.

The Energy Department has argued that the storage containers will contain the wastes, and it projects that releases for the first 10,000 years will be very small. But assessing the adequacy of the containers is difficult, the project's critics maintain, because the Energy Department has not made a final design public.

The suit argues that reliance on a system that combines the man-made containers with the site's natural characteristics is "essentially abandoning" the Nuclear Waste Policy Act's mandate "that the site's geology form the primary isolation barrier."