Las Vegas Sun

March 28, 2024

No knockout on Yucca

WASHINGTON -- Nevada officials said this morning they believe a federal appeals court will allow the Energy Department to pursue a license to build the Yucca Mountain nuclear waste repository.

A day after Nevada's legal challenge was heard in the U.S. Court of Appeals for the District of Columbia, the state's attorneys said the three-judge panel appeared to be leaning toward letting the Energy Department move forward but at the same time laid legal groundwork that could eventually scuttle the project.

Nevada officials said they believe they won and lost during the 3 1/2- hour hearing, the state's first full legal challenge against the Yucca Mountain dump. It's unclear how and when the judges will rule, although a ruling is expected sometime this year.

Judging from the questions asked in court, Nevada officials said the judges seemed to dismiss Nevada's constitutional challenge and arguments against the siting of the project, which could have been a knockout blow.

But Nevada officials believe they have some winning arguments that may take some time to pursue. They were pleased that the court seemed to focus on the standards set by the Environmental Protection Agency, which the state says are illegal.

The state also won a concession during the hearing from the Nuclear Regulatory Commission, whose attorney said the state could challenge the environmental impact statement for the project, which had previously been ruled out and which could provide Nevada with a strong argument against the project.

Attorney General Brian Sandoval said this morning that the court's questions showed that Nevada had legitimate, strong legal arguments against the site and was not just "knocking its head against the wall."

"The government publicly blinked where they had not before," Sandoval said.

Sandoval and lead attorney Joe Egan said the best case could be one that questions the EPA's standards.

Egan said the future will be continuing the court battle and fighting the Energy Department's licensing effort.

"We are now really going to be getting ready for licensing," Egan said. "Two days ago we didn't know if that was even still the case."

Rep. Shelley Berkley, D-Nev, who sat through the hearing, said there "was no home run."

"I was waiting for a Perry Mason moment and it didn't happen," she said.

Berkley and other Nevada officials expect the case to end up in the Supreme Court

Rep. Jon Porter, R-Nev., who also attended the hearing, said there are still thousands of pages of documents for the judges to go through on this case.

"This is the beginning of a battle in the halls of justice where this should be determined," Porter said. "It's a great day for Nevada."

Egan said he was "encouraged by the body language" of the judges during the arguments in the EPA case.

"The court made no pretense that it was troubled on the lack of deferences to the National Academy of Science standard," Egan said.

Nevada claims the agency violated the law when it established a 10,000-year compliance period for the site's radiation protection levels because the academy recommended a longer time frame. The state says the law required the agency to adopt whatever the academy said.

Judges David Tatel and Harry Edwards asked tough questions about the EPA's justification as to why it ignored the National Academy of Science's recommendation.

"NAS says there is no scientific basis for limiting it to 10,000 years," Tatel said. "What could be more inconsistent with that academy's recommendation?"

Justice Department attorney Chris Vaden said, on behalf of EPA, that the agency considered policy and regulatory matters as well as public comments and that it did not just adopt the NAS's recommendation.

"(The EPA) did not disagree with NAS on scientific issues but as a regulator, did not want to question the license on something so far out," Vaden said.

If the court were to rule that the EPA needs to adopt a longer time period, Sandoval said, that could be the end of the project.

"DOE has already said the canisters won't last beyond 10,000 years," Sandoval said. "They can't do it since the geology of Yucca Mountain is inferior."

Energy Department spokesman Joe Davis would not speculate on what the department would do if the standards were to change.

"Under the current science, we will meet the 10,000-year standard," said Davis, who was in the courtroom Wednesday with Energy Department's top Yucca official Margaret Chu.

The department will prepare its license application toward its December submission goal to the commission, Davis said.

Egan said the other "clear victory" for Nevada was the clarification that the state could object to the department's final environmental impact statement during the future licensing hearings.

In a last-minute effort just before the court adjourned, Egan pointed out that under current regulation the state could not challenge the EIS but only provide supplemental information.

Nuclear Regulatory Commission General Counsel Steve Crockett and Justice Department attorney Ron Spritzer said it could challenge specific issues in the document at the commission.

Egan said that was not going to be allowed and said he was "delighted that we can litigate."

Meanwhile, Tatel and Edwards questioned Nevada most heavily on its constitutional claim and challenges to the Energy Department's recommendation and President Bush's approval of the Yucca Mountain site. In 2002, Congress gave Energy Department the go-ahead to move forward on its plans to store 77,000 tons of nuclear waste at the mountain, 90 miles northwest of Las Vegas.

Toward the end of the arguments, Edwards seemed to dismiss the state's claim that the Energy Department should not have gone forward with the site's recommendation because it was based on bad guidelines and science was no longer relevant.

"Congress passed the law, it's on the books. Whatever preceded it is moot," Edwards said. "I can't imagine what the readdressibility would be."

President Bush signed a law in July 2002 that allowed the Yucca project to move ahead, but Nevada sued, saying because Energy Department and Bush followed through on the site's recommendation based on flawed selection criteria the site should not have be approved.

Another case argued that the Energy Department's recommendation guidelines were wrong because they "abandoned" geologic isolation as the main barrier to radiation getting out of the site. The state wants the court to send the matter back to the Energy Department.

Egan did not get to present his arguments on those cases. The hearing ran overtime and the judge cut off the proceedings after a debate on whether Nevada could even make the arguments in the first place.

Congress' approval of Yucca Mountain and agreement with the president overrides Nevada's arguments, Edwards said.

"End of discussion ... no cases can challenge that," he said.

Bob Loux, executive director of the Nevada Agency for Nuclear Projects, said before the recommendation a case was too premature, and now it seems to be too late.

"It was caught between the cracks," Loux said.

Egan said the case against the Nuclear Regulatory Commission and the future licensing hearings will still take issue with the fact the mountain's rock makeup is no longer the main barrier stopping radiation from getting out of the site.

Edwards and Tatel also picked apart the state's constitutional challenge, saying the proposal would be on federal property and nothing in the constitution applied to the state's argument.

"I don't know how this becomes a constitutional issue," Edwards said.

Attorney Charles Cooper, who argued for Nevada, said the government cannot dump the "unwanted burden" of nuclear waste on one state without a good reason.

Cooper said an interpretation of the Constitution says: "States must be treated alike, but the judges said those were property right cases and not good to apply here.

Justice Department attorney Ron Spritzer said: "I don't see how there can be any question that the issue has been resolved."

"We knew it was the biggest liability that we had," Egan said. "No one has ever brought this issue to the floor."

Sandoval said the constitutional claim was a "novel theory," but the state brought the case since "no state has ever been put in this position."

He said he would have to wait to see the court's decision before he would make any recommendation to pursue a Supreme Court case.

Democratic presidential hopeful retired Gen. Wesley Clark took a stand against a nuclear dump at Yucca Mountain after the arguments concluded.

"I am against the nuke dump at Yucca Mountain, period," he said. "I will use the full force of the presidency to kill this dangerous product, which would put the lives and health of Nevadans at risk for generations."

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