State officials prepare for big Yucca hearing

Suzanne Struglinski

Friday, Dec. 19, 2003 | 9:51 a.m.

WASHINGTON -- Nevada officials want three federal agencies to justify actions they feel violated federal nuclear waste law, overruled scientific evidence and unconstitutionally pitted 49 states against one, all in the name of building a nuclear waste storage site at Yucca Mountain.

Almost 20 years of opposition against the Yucca project will be boiled down to three hours of oral arguments in the U.S. Court of Appeals for the District of Columbia. The hearing is Jan. 14.

Washington attorneys Joe Egan, Martin Malsch and Charles Cooper and California-based attorney Antonio Rossmann will give oral arguments on Nevada's behalf in six legal challenges against the Energy Department's proposed nuclear waste storage site at Yucca Mountain, 90 miles northwest of Las Vegas.

The state is "confident" it will prevail in this "mother of all lawsuits," as described by Egan, of Washington law firm Egan, Fitzpatrick and Malsch. Egan spoke at a press briefing in Washington on Thursday. The attorneys expect a decision in the middle of next year.

"I think it is very likely that there could be appeals to the U.S. Supreme Court from these cases no matter how they come down," Egan said.

Egan said the state is "very happy" to be in this court because it has the most experience in complex administrative law and nuclear cases.

"And the only two times they've ever heard a Yucca Mountain case they had no problem taking DOE to the cleaners," Egan said.

The same court ruled that the Energy Department needed to be held liable for not taking the waste from the reactors in 1998 as originally planned, and recently sent the conflict-of-interest case pertaining to the department's law firm reviewing the Yucca Mountain project back to the district court.

A ruling in Nevada's favor in any of the cases could send the project back to the drawing board, delaying it for years or disqualifying it altogether.

The state has sued the Energy Department, the Nuclear Regulatory Commission and the Environmental Protection Agency alleging various violations of the Nuclear Waste Policy of 1982, the federal law that guides the Yucca project and other regulations.

Attorneys from the Justice Department will represent the agencies at the oral arguments.

"We are confident in our case because we followed the law passed by Congress and our science proves that Yucca Mountain is safe," Energy Department spokesman Joe Davis said.

But Nevada officials think otherwise.

Bob Loux, executive director of the Nevada Agency for Nuclear Projects, explained that the law clearly requires a geologic repository to store highly radioactive spent nuclear fuel. He said geologic is the key word since that sets Yucca apart from other possible sites in other states. The makeup of the rock and the overall mountain was supposed to keep the radiation inside.

Yucca Mountain not only fails the criteria needed to be the geologic repository, but the department changed criteria, which had been in place for 17 years, to include man-made or "engineered barriers" inside the mountain to contain the waste, Loux said.

"The Yucca Mountain site itself is virtually incapable of holding, in isolation, radioactive waste," Loux said.

The rock itself offers less than 1 percent of the site's overall performance, according to DOE's own standards, he said. All other protections are based on the containers holding the waste and barriers inside the mountain. Another set of standards exists for any other repository that would be built in the country.

Nevada sued the department, saying this violated the Nuclear Waste Policy Act of 1982, and then sued the Nuclear Regulatory Commission when it changed its licensing rules to fit the department's man-made barrier additions among other changes.

Egan will have 20 minutes to argue the state's case against the department's decision to change the rules as well as the president's and energy secretary's recommendation of the project handed down in February 2002 since. The state is arguing that those recommendations were based on the illegal rule changes.

Malsch will argue the NRC cases and will have 20 minutes to argue the NRC case.

By introducing man-made, or "engineered barriers," into the site, the department took away the unique geologic protection properties of the mountain and made it rely on material that could store it anywhere, not just at Yucca Mountain, Egan said.

"It's the pervasive thread that goes through every one of the lawsuits," Egan said.

This also is the basis of the constitutional case, which claims the government has unfairly singled out Nevada to get this waste, when any other site using these engineered barriers would be just as suitable. Cooper of Washington firm Cooper and Kirk will also have 20 minutes to make the arguments in this case.

"It is not constitutional for 49 states to gang up one on." Egan said. "Our argument is that when geologic isolation at Yucca Mountain was found not to exist and was then abandoned in the rules that DOE applied to the repository that removed the only compelling, rational basis that made this a constitutional repository."

If the court ruled in favor of Nevada, this would declare the Yucca Mountain resolution signed by President Bush last July unconstitutional.

"We think that winning this case could very well end the repository project for all time in Nevada, at least at this site," Egan said.

Egan will have another 20 minutes to argue against the Final Environmental Impact Statement the department released in February 2002, claiming it ignored key environmental aspects such as the hazardous material in the engineered barriers that would be brought to the site, and did not adequately evaluate a "no-action alternative" of just leaving the waste at nuclear power plants.

Arguments against the EPA on its radiation standards will last an hour. Rossman, who is a state special deputy attorney general for Yucca Mountain cases, will argue on the radiation standards the agency set in 2001. The state says the agency "gerrymandered" the radiation limit boundary line. The oddly shaped boundary allows radiation limits to be measured at a point where it would already be diluted in "vast amounts of drinking water" in Amargosa Valley.

Geoff Fettus of the Natural Resources Defense Council will also argue the case on behalf of several environmental groups.

The Nuclear Energy Institute has also sued EPA on the standards, but associate general counsel Mike Bauser said its lawsuit takes issue with the separate groundwater standard the agency put in place for the site. Bauser said the Energy Policy Act of 1992 only requires an overall radiation standard.

Bauser said the 1982 nuclear waste law, its amendments in 1987 and the Energy Policy Act of 1992 taken together guide the project. He said the three laws "do not require that geology apply to an 'x' amount of retention" of the radiation inside the mountain. He said the laws provide for both the engineered and geologic barriers to contribute to the project's total performance "acting together as a system."