Thursday, Jan. 15, 2004 | 9:06 a.m.
Nevadans, for well over a decade now, have asked the federal government to undertake a seemingly straightforward task: Take a scientific, unbiased look at the Yucca Mountain project. If the White House, Congress and federal agencies had actually given Nevada a fair shake, there is no way they would have gone forward with a risky plan to build a high-level nuclear waste dump in Southern Nevada. In 2002, despite mounting evidence presented by Nevada's congressional delegation that shipping and burying the waste here poses extraordinary dangers to the public, Congress approved President Bush's plan to open Yucca Mountain. Now Nevada's hopes rest with the courts rejecting the plan or with federal regulators denying the Energy Department a license to operate a dump here. On Wednesday the U.S. Court of Appeals in Washington, D.C., heard the state's legal challen ge.
On one of the issues raised by Nevada, that Congress used a flawed process to designate Yucca Mountain, the state appeared to have suffered a setback when the judges didn't express a willingness to intervene. Meanwhile, the judges indicated it would be up to the Nuclear Regulatory Commission, which will either grant or deny a license for the Yucca Mountain project, to determine whether the casks containing nuclear waste will be strong enough to prevent corrosion by water flowing through Yucca Mountain. Nevadans should be particularly heartened that the judges were receptive to an important point raised by Nevada involving radiation standards.
Two of the three judges questioned why the Environmental Protection Agency decided that protective radiation standards at Yucca Mountain were only required for the next 10,000 years. After all, the judges noted, a report by the National Academy of Science suggests the danger covers a much longer period of time. The state contends that the project should be rejected because it can't be demonstrated that the radiation standards can be met 300,000 years from now, which is when state officials say the waste will be its most lethal.
The National Academy of Science's report is "absolutely clear ... that 10,000 years is incorrect," Judge Harry Edwards told an attorney from the Justice Department. Moreover, Edwards and Judge David Tatel asked, why would the EPA reject a recommendation from the National Academy of Science when Congress explicitly required the scientific body's report to be taken into account? "An agency does not have the authority to do whatever it wants to do," Edwards said. The judge added that it was "really quite astonishing what the agency did compared to what the National Academy of Science said." The attorney who represented the federal government, the Justice Department's Christopher Vaden, contended that the 10,000-year standard was established following policy and scientific considerations. But that's balderdash. The 10,000-year mark is arbitrary. It's a nice ro und number that the Energy Department believes most Americans will feel secure about. The fact that such a number was picke! d, instead of say 3,500 years, 17,500 years or even 300,000 years, suggests little science went into the consideration.
Nevada's case still is a long shot: Getting a federal court to overturn a federal agency's decision doesn't happen every day, especially when 49 other states and their representatives in Congress are happy that they won't be the nation's dumping ground. And tough questions posed by judges, such as those on the 10,000-year limit, aren't always an indication of which way they're leaning in a case. But it's still encouraging that a federal institution, in this case the U.S. Court of Appeals, actually put pointed questions to the federal government about its refusal to comply with one of the nuclear-waste burial law's principal requirements. What's sad is that Nevada, in desperation, has had to turn to the courts for help because a president and a majority of the members of Congress have dismissed legitimate safety concerns about the shipping and burial of 77, 000 tons of the deadliest waste known to man.
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