Critical year for Yucca

Suzanne Struglinski

Friday, Jan. 2, 2004 | 5:30 a.m.

WEEKEND EDITION

January 3 - 4, 2004

WASHINGTON -- After a 21-year struggle, Nevada may finally know by the end of 2004 whether it can stop the nation's nuclear waste from being stored at Yucca Mountain.

Since the state lost its battle to block the project in Congress in 2002, Gov. Kenny Guinn and other state officials have put their faith in the ability of the state's army of lawyers and technical experts to defeat the plan to put 77,000 tons of highly radioactive waste into the mountain, 90 miles northwest of Las Vegas.

This year will bring a confluence of court challenges and regulatory filings that could either scuttle the project or push it forward.

"It's going to be a real pivotal year for the project," said Bob Loux, executive director of the Nevada Agency for Nuclear Projects. "I think we're really going to find out if it is going to go forward or not."

Brian O'Connell, nuclear waste program office director for the National Association of Regulatory Utility Commissioners, a pro-Yucca group, calls 2004 a year of "big milestones."

The two biggest:

In both instances, the arguments for and against the repository will get their first head-to-head hearings before the court and the NRC, which both have the power to modify or stop the project.

So far Nevada's arguments have failed to sway Congress, the Energy Department and President Bush, and it's unclear how the Nuclear Regulatory Commission will respond. Nevada officials have been critical of some of the NRC's work so far on Yucca Mountain, and the NRC would be more likely to modify a plan or send it back to the Energy Department than kill it outright.

"The court actions are in a whole separate category," O'Connell said. "If there is a defeat in the court we go back to square one," he said. "There is no Plan B, so DOE has to go back to Congress and it's 'What now coach?' "

In court Nevada will have a chance to argue that the logic and scientific studies used to garner the congressional and presidential approval of the site are faulty.

The Energy Department has studied the site since 1982, when the Nuclear Waste Policy Act, which regulates the Yucca Mountain Project, passed.

The state has taken issue with the way the studies have been conducted, despite assurances from the Energy Department that Yucca Mountain is safe.

Nevada officials say the department reached this conclusion through a process riddled with violations of federal law and rule-bending in favor of a department "hell-bent" on getting the site approved for an increasingly impatient nuclear industry.

"So far DOE has ignored the feelings of Nevadans," Rep. Jim Gibbons, R-Nev., said. "They have had this see no evil, speak no evil, hear no evil attitude on the project. ... There's a zillion things out there we don't know.' "

Legal fight

On Jan. 14 the federal appeals court in Washington, D.C., will take up a series of legal challenges filed by Nevada against the project. This will be the first time a federal court will look at the legal aspects of the project, said Joe Egan, the Washington attorney who will represent the state in court.

"2004 will be the year that will test if politics alone is enough to make the Yucca Mountain project go forward," Egan said. "Up until now it has only been about politics, but now it has to answer questions on law and science."

Surprisingly Nevada and the nuclear industry want the same thing -- for the government to follow the law. Nevada and the nuclear industry, however, see the law in entirely different ways.

The nuclear industry wants the department to fulfill the promise of the Nuclear Waste Policy Act of 1982 to remove spent fuel and store it in one place.

The law says that a geological repository should hold in the radiation from the 77,000 tons of nuclear waste for 10,000 years.

The Energy Department is pressing forward with its belief that Yucca Mountain is a good, safe site. "For 50 years the scientific consensus is that deep geologic burial is the best solution for spent nuclear fuel and 20 years of exhaustive scientific study and analysis has concluded that Yucca Mountain is the most appropriate site for a permanent repository," said Mitch Singer, spokesman for the Nuclear Energy Institute, the industry trade group that has supported the project.

"The construction and opening of Yucca Mountain will fulfill the U.S. government's contractual obligation to take possession of the spent fuel and defense waste scattered throughout the country."

Nevada has argued that the problem with Yucca Mountain is that it won't be a geological burial ground, as determined by the law, because the mountain itself can't hold back the radiation from 77,000 tons of nuclear waste as required by law.

The Energy Department has devised a number of "man-made" barriers, such as metal shields, to stop or slow radiation. That violates the law, Nevada officials say.

The state is also challenging the project on several other grounds, from scientific to procedural.

The lawsuits include a constitutional challenge claiming the Nuclear Waste Policy Act illegally pits the 49 states against Nevada.

The state's attorneys are also targeting a law that requires more scientific study of Yucca Mountain than has been done. State officials say that proper study of Yucca Mountain, following the original criteria outlined in the law, would prove it is incapable of safely storing the waste and should disqualify the project.

They also say that because the scientific study has not been finished up to the requirement in the law, the government should not have approved the project to go forward.

The state is also targeting the environmental analysis completed by the Energy Department, the Nuclear Regulatory Commission's licensing rules and the radiation standard set by the Environmental Protection Agency, which will be used by the Energy Department to show the safety of Yucca Mountain.

Energy Department officials believe the work they have done is sufficient to show the project's safety.

"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 Egan, who will argue three of Nevada's cases in the three-hour proceeding before the federal appeals court, said he was confident Nevada will succeed. Regardless of the outcome, he expects the cases to be appealed to the Supreme Court.

In spite of the possible long-term legal challenges, "right now the best thing is that it is in the court," Rep. Jon Porter, R-Nev., said.

Egan said it would be uncharacteristic of the court to wait until next year to issue a decision. He said it should come well before the department plans to file its construction license application with the Nuclear Regulatory Commission in December.

Legal tangles

Meanwhile, a separate but related court case coming up this year could also hold up the project.

The Energy Department agreed to a $16.5 million contract with the law firm of Winston & Strawn to review the project, but the firm quit in 2001 after conflict-of-interest allegations surfaced.

A Las Vegas Sun investigation uncovered that the firm had also done lobbying for the Nuclear Energy Institute. Federal law requires an unbiased review.

The law firm of LeBoeuf, Lamb, Greene and MacRae filed a lawsuit in 2002 that could result in a federal court saying all of Winston & Strawn's work must be reviewed, which would delay the application and put a kink in the overall schedule.

The LeBoeuf law firm had bid for the Energy Department contract originally but lost. The firm filed suit after it did not get the contract after Winston & Strawn withdrew. The Energy Department has yet to replace Winston & Strawn in the two years since the law firm stepped down.

"The department will continue to rely upon in-house attorneys during the development of the license application, until an outside firm is selected," Davis, the Energy Department spokesman, said.

The federal district court in Washington is expected to take up LeBoeuf's case this year.

"It is inconceivable to me that DOE would file it without having a law firm on board," Loux said. "DOE's not pursuing the smart thing in my judgment. It could be a major problem for them."

Licensing

The question of licensing could also be a problem.

The Energy Department has pledged to file its application to start building Yucca Mountain with the Nuclear Regulatory Commission by the end of the year.

The department is expected to start filing backup material to the commission, to be put on a computer system that will be available to the public, by June.

The documents will outline plans for the construction of the site along with safety studies and other scientific material.

"(In the application) they need to describe their understanding of the scientific properties and aspects of that repository, how once-spent fuel is permanently stored there, (and how) they can meet the protection standards," said Janet Schlueter, head of the Nuclear Regulatory Commission's high-level waste branch.

Once the commission accepts the application, it has up to four years to decide to allow the Energy Department to start construction of the Yucca project.

The NRC regulates nuclear facilities to protect human health and safety, so any technical problems showing anything that could endanger people are supposed to disqualify the project.

Schlueter said the Energy Department's prediction that it would finish building the site, receive approval to open the repository and start accepting waste by 2010 was "pretty optimistic" because there is so much involved.

The Energy Department insists it will submit the license application on time and will answer all questions regarding the project this year.

"The license application will address all issues with sufficient information and detail to enable the Nuclear Regulatory Commission to grant construction authorization," Davis said.

All along the Energy Department has insisted the site is safe and suitable, but critics, both the state and environmentalists, point to problems in the plan found by the department's own paid consultants, independent reviewers and advisory boards.

"The more we learn about Yucca Mountain, the more (the application) will appear to be like a piece of Swiss cheese," Gibbons said, adding that there are holes in the scientific analysis, holes in the national security aspects and holes in the overall plans for the project.

Gibbons said issues brought up by the Nuclear Waste Technical Review Board in October and again in November are prime examples of the problems the project faces. The board is an independent government body that was created in 1987 to review the Energy Department's work on Yucca Mountain. The board was created at the same time Congress decided to narrow its search for a repository to Yucca Mountain.

The board sent a letter to the Energy Department saying nuclear waste storage containers inside the mountain could corrode and break, leaking more radiation than anticipated. The board followed up with a detailed analysis drawing the same conclusion.

"These discoveries have been made this late in the game," Gibbons said. "What else could be discovered in the next year, the next 10 years, the next 10,000 years?

"There are so many issues and so many questions, I don't believe DOE can reasonably and responsibly make an application. I don't think they can reasonably and responsibly tell the public it is safe."

The advisory board's concerns about corrosion are tied to the Energy Department's lack of a final repository design. The way the repository is designed is expected to affect the rate of corrosion of the casks. The department will finalize the design before it submits the application.

Key Questions

The Energy Department has to resolve several so-called "key technical issues" the NRC has raised before it will receive a license. Those questions revolve around the site's ability to keep radiation from contaminating the surrounding environment and must be answered satisfactorily for the site to be licensed.

The department plans to resolve most of those questions in the spring and summer, just before the application documentation is due in June. So far the commission has deemed only 83 answers to be complete.

When the Energy Department submitted its recommendation to President Bush, 293 scientific questions remained unresolved.

As of Dec. 18 "DOE has submitted responses that fully or partially address 214 of the 293 key technical issue agreements," Davis said. "We intend to address all of the remaining agreements prior to the submission of the license application."

The remaining technical questions have been a point of contention for Nevada officials and other critics of the site, since the president and Congress approved the project despite the long list of unresolved issues. But even a completed list may not change some minds.

"There is nothing the DOE can do or say that can impress me because of their lack of credibility," Rep. Shelley Berkley, D-Nev., said. "I don't believe or trust them."

During the above-ground atomic testing during the 1950s at the Nevada Test Site, the government assured workers they were safe and told them just to go home and take a shower to rinse off nuclear fallout from explosions, she said.

"All of those Nevada Test Site workers are dying or very sick with cancers that can only be caused by radiation," Berkley said. "This is the same department that tells us Yucca Mountain will be safe. They could put together whatever sham application they want, but it will impress me none."

Berkley said if the site gets approved and radiation leaked out of the site or an accident were to occur in the state, Nevada could never recover.

"We're not going to get many tourists here," Berkley said. "It will happen and then what will we do?"

Berkley said billions of dollars would be lost in revenue and jobs for the state, not to mention the lives of people affected by the radiation.

"How much can the federal government give Nevada to compensate for that?" Berkley said.

As time runs out on the Energy Department's schedule, critics have voiced concerns on what may fall through the cracks.

"I'm very skeptical they are doing careful science, especially in such a hurry," said Kevin Kamps, nuclear waste specialist for the Nuclear Information Resource Service in Washington, which opposes the project.

"A lot of mistakes will be made and it's people's health and safety that are on the line," Kamps said. "It is too much work for them to do it well. ... They are going to do a lot of half-baked work."

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