Feds seek change in nuclear waste definition

Suzanne Struglinski

Friday, Aug. 22, 2003 | 11:34 a.m.

WASHINGTON -- The Energy Department has asked Congress to change the federal definition of nuclear waste, which would sidestep a recent court decision that overruled the agency.

Nevada officials and nuclear critics are decrying the move, saying the agency is showing its arrogance by going around the court to Congress to change the law governing nuclear waste disposal and the proposed repository at Yucca Mountain, 90 miles northwest of Las Vegas.

"They have no respect for the law of the land or the rules of the court," Nevada Nuclear Projects Agency Director Bob Loux said. "They simply don't like doing what they are supposed to do."

The proposal isn't expected to affect Yucca Mountain directly, but officials say if Congress opens up the law, there could be discussion to add more waste to Yucca Mountain or allow temporary storage of waste on the site.

"Anytime this law gets open there is a concern on our part," Loux said, arguing that a proposal from the Energy secretary could sway some lawmakers.

Nevada Attorney General Brian Sandoval decried the decision and said the Energy Department was "substituting its judgment for the courts or the Congress by changing the rules of the game. They are changing the rules to suit them(selves)."

Nevada officials fear this could be a precedent for the Energy Department to go to Congress to change various parts of the law, despite years of public hearings, debates and study on the issue.

Sandoval said if Nevada is successful in its court challenges, there "is always a chance" the department will try to get the law changed through Congress.

"They have a record of doing this," said Sandoval.

In an Aug. 1 letter, sent to House Speaker Dennis Hastert, R-Ill., Energy Secretary Spencer Abraham asks to alter the definition of high-level nuclear waste in the Nuclear Waste Policy Act of 1982, the federal law that guides the Yucca project.

An aide to the speaker said the department would have to find a sponsor for the bill before the legislative processing of the proposal could start.

The proposed change would allow the department and the Nuclear Regulatory Commission to determine whether certain materials generated from nuclear fuel reprocessing at former nuclear weapons and plutonium factories would be sent to Yucca Mountain.

The department's Savannah River Site in South Carolina has more than 34 million gallons of this waste, the Idaho National Engineering and Environmental Laboratory has more than 900,000 gallons and the Hanford Site in Washington State has more than 53 million gallons of radioactive material underground and on-site.

The current law specifically includes liquid waste produced by fuel reprocessing as high-level waste that needs permanent geological storage.

But Abraham explained the law as it stands only implies that the department can determine what is radioactive enough to need to go to Yucca. The change would spell this out and "resolve the confusion and uncertainty" created by last month's federal court decision against the department's plans to reclassify certain waste.

On July 2, the U.S. District Court in Idaho decided the department did not have the authority to deem some high-level nuclear waste at the three sites as"incidental" and leave it on site as it had planned.

Abraham said the court's ruling could not only result in "decades of delay" in removing the waste from the department facilities but also creates "the need to dispose of far more material than any prior estimate have assumed in a deep geologic repository, far exceeding the statutory or physical capacity of the Yucca Mountain site."

Loux said that argument is "almost irrelevant" since there is already more waste in existence than Yucca Mountain could hold. Yucca Mountain is allowed to accept 77,000 tons of waste under the Nuclear Waste Policy Act, although some reports suggest it could hold much more than that.

The Energy Department letter stems from the department's 1999 decision to separate some radioactive components of the liquid waste and prepare it for a future shipment to Yucca, after the repository was approved and built. The rest, after separation, would be reclassified as low-level waste and be buried on site. Energy Department officials said the plan was to reduce the volume of waste set to go to Yucca and save as much as $29 billion, while reducing cleanup timelines for 30 years.

But last month, the federal court said the department could not do that under the law since any waste classified as "high level" must be buried in a central repository. The court also said the steps outlined in the 1999 decision that DOE planned to use to reclassify the waste, such as removing radioactive material to the "extent technically and economically practical," conflicts with the Nuclear Waste Policy Act.

The General Accounting Office last month recommended the department seek clarification of its authority to designate waste to help relieve the legal challenges, which Abraham's proposal seems to satisfy. The GAO said the court decision would mean more waste would be deemed high-level than Yucca Mountain could hold.

Loux said the issue is not about more or less waste coming to the proposed federal nuclear waste repository at Yucca Mountain but that the department is "trying to get a law changed simply because they don't like it."

DOE did not return calls seeking comment. If approved, the law would circumvent the court ruling by allowing the department move forward with its waste separation plan, which includes sealing tanks with concrete and leaving them on department sites.

"It's appalling the extent DOE will go to to mislead the American public," said Tessa Hafen, spokeswoman for Sen. Harry Reid, D-Nev. "Once again it is trying to change the rules to win the game."

Hafen pointed to the department's decision to add drip shields to the Yucca site even though the law called for a geologic barrier and even resorting to politics and not sound science in singling out Yucca Mountain from the other proposed sites in 1987 as other examples.

"Clearly, it is doing this with complete disregard for the health and safety of the American public," Hafen said.

Other members of the Nevada delegation could not be reached for comment.

Michele Boyd, Public Citizen legislative representative said the group, which opposes nuclear power and the Yucca site, is concerned about the proposed change since the department is going around the court ruling.

"They are taking what's actually high-level waste and saying they don't have to deal with it," she said.

The Natural Resources Defense Council, who with three other groups brought the reclassification lawsuit in February 2002, objects to the proposal saying, among other things, the proposal would give the authority to reclassify literally any amount of the extraordinarily radioactive waste in the storage tanks and just leave it in the states. They also say Abraham's notion the court decision threatens the Yucca Mountain project is wrong.

"The (court) decision is irrelevant to the legal and technical adequacy proposed Yucca project," Cochran and Fettus wrote to Hastert. "The decision simply means that (high-level waste) cannot be abandoned in aging, leaking tanks and must be disposed of in a repository regardless of whether that repository is the proposed Yucca Mountain site or another repository if Yucca is found legally and technically inadequate."

Sun reporter Cy Ryan contributed to this story.