Feds won’t appeal Yucca ruling

Suzanne Struglinski

Tuesday, Aug. 24, 2004 | 11:11 a.m.

WASHINGTON -- Federal officials say the government will not ask a federal appeals court to revisit last month's ruling on the Yucca Mountain project's radiation standards.

That leaves the Nuclear Energy Institute, the nuclear industry's lobbying and advocacy group, as the only party in the six lawsuits over the project to file a request for rehearing with the U.S. Court of Appeals for the D.C. Circuit. The institute filed its request Monday.

On July 9, the court ruled the Environmental Protection Agency did not follow the law when it established a 10,000-year standard for radiation protection at the mountain. Under the EPA rule, the department would have to prove the nuclear waste storage facility at Yucca, 90 miles northwest of Las Vegas, would not expose people to more than 15 millirem of radiation for 10,000 years.

But the court said the law required the EPA to follow the recommendation of the National Academy of Sciences, which proposed a much longer time frame of about 300,000 years. The court threw out the rule and said either Congress would have to change the law or the EPA would have to create a new standard.

Energy Department spokesman Joe Davis said the department did not file a request for rehearing and the Environmental Protection Agency will work on formulating a new rule, if Congress does not act first. Davis said the department will follow whatever standard it needs to protect human health and safety.

The Nuclear Energy Institute argues in its request for a rehearing that the agency followed the law "by starting with the NAS (National Academy of Sciences) report, factoring in policy considerations and coming up with a standard," said general counsel Michael Bauser. He also aruges the 10,000-year time frame is "consistent with other waste management practices, dealing with both radioactive and non-radioactive material, and ensures public health and safety by limiting radiation exposure to the public of less than one-20th of natural background levels."

The nuclear institute also wants the court to revisit its argument that a separate radiation limit for groundwater is not required under the law and should not apply.

Under the court rules, the standard will stay in place until the court decides whether to fulfill the institute's request.

But Nevada Deputy Attorney General Marta Adams said the state expects the EPA regulation will be invalidated due to the court's decision, despite the institute's request.

Adams said the state won the most important case it could. The state believes the department could not prove the site could follow the protection standard with the longer time frame. Joe Egan, Nevada's attorney on Yucca issues, said he does not expect the court to grant the rehearing. He said most of the Nuclear Energy Institute's arguments in its filing were not originally presented to the court during the initial hearing of the case.

"You are not supposed to do that," Egan said. "It's an unfair tactic" because it prevented Nevada or any of the other parties to the lawsuits from responding to the institute's filing.

Egan said Nevada can only respond to what the institute claims if the court asks for a response, although such a request would not necessarily mean the rehearing would move ahead.