Yucca in for long delay; radiation standard too low

Suzanne Struglinski

Friday, July 9, 2004 | 11:18 a.m.

WASHINGTON -- A federal appeals court handed Nevada a major victory this morning, ruling that a key standard for the planned Yucca Mountain nuclear waste repository was incorrect, which could set the project back indefinitely.

If the decision withstands an inevitable appeal, it would send the Energy Department back to the drawing board and leave engineers with an almost impossible standard to meet, said state officials.

Nevada Attorney General Brian Sandoval said the decision means, "Yucca Mountain is dead."

The court found that the Environmental Protection Agency violated the law when it said Yucca Mountain had to hold nuclear waste safely for 10,000 years and ordered the agency to set a new standard, which the state's attorney, Joe Egan, said means "the department will have to apply a standard that all their own evidence says they can't meet."

In ruling on six lawsuits filed by the state and environmental groups, including the Natural Resources Defense Council, a three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected what would have been complete knockouts for the state.

Nevada argued that the plan to build the repository was unconstitutional because it force nuclear waste on the state and said there have been several violations of federal law regarding clean water and nuclear waste. The state also argued that rule changes along the way violated law.

The Energy Department is expected to appeal the case it lost, and Sandoval said the state will appeal the parts of the case it lost.

The EPA, the court ruled, did not take a recommendation from the National Academy of Science, which said there was no reason to set the standard at 10,000 years and said the standard should be at the point of when the waste will be at its peak radiation.

The National Resources Defense Council argued that peak could be 300,000 years from the time the waste is sent to Yucca Mountain.

State officials said that would mean that the Energy Department's work, which was designed to meet the 10,000-year standard, would be insufficient.

"We've been waiting more than 20 years for this," said state's chief watch dog on nuclear issues, Bob Loux, executive director of the state's Agency for Nuclear Projects. "I believe this effectively kills the process.

"I think everyone will recognize that it's futile to proceed because they can't write a standard Yucca Mountain can meet."

Sandoval called the decision "better than expected," and, noting that the Energy Department is gearing up to submit a license application to the Nuclear Regulatory Commission at the end of this year. He said the licensing process "should be scrapped."

Egan said the decision "makes it almost impossible to believe this repository will ever get a license."

"Any responsible public official should do the right thing and pull the plug," he said.

Egan said there could be "tinkering with the cadaver" by the Energy Department on the project but it will be hard to save it.

Egan said the court found the standards were not based on sound science and the agency ignored the sound science it knew about.

Sen. Harry Reid, D-Nev., called the fight against Yucca Mountain "a David versus the giant and the giant is not winning."

Gov. Kenny Guinn called the decision "big for us." "This is big for us," Guinn told reprters. "They can't go forward without being licensed. If there is no license, they don't have a project."

He said the court used "strong language" that the standards are not based on science.

"They can't do much more without a license," he said. Asked how President Bush designated Yucca Mountain in view of the decision, Guinn said the president relied on his advisers. He said he told Bush that the state was going to court and "this is the first salvo out of the court system and it's a pretty important one."

Energy Department officials did not immediately comment.

Angie Howard, executive vice president of the Nuclear Energy Institute, the nuclear industry's lobbying group, said work on the project, including the license application, should be able to continue because the commission is not expected to decide to issue a construction application until 2007 or 2008.

"It is noteworthy that the court affirmed every other challenged aspect of the federal government's program in these consolidated cases," Howard said. "This validates our belief that the overall decision-making process for the Yucca Mountain project rests on sounds scientific ground."

The nuclear industry supports the Yucca Mountain plan.

The Energy Department needed to meet the EPA standard in order to prove it could safely store 77,000 tons of nuclear waste at Yucca, 90 miles northwest of Las Vegas.

"It would have been one thing had EPA taken the Academy's recommendations into account and then tailored a standard that accommodated the agency's policy concerns," according to the court decision. "But that is not what EPA did. Instead, it unabashedly rejected NAS's (the National Academy of Science's) findings, and then went on to promulgate a dramatically different standard, one that the Academy had expressly rejected."

"We think it entirely unreasonable for EPA to have acted inconsistently with NAS findings and recommendations," the court said.

The court found nothing wrong with the Nuclear Regulatory Commission's licensing requirements except that they contain the 10,000-year compliance period set by the EPA.

The decision means the agency will have to set new, higher standards for the project and the department will most likely have to go back and look at its scientific studies.

"I have always said there would be no Yucca Mountain," Reid said. "It is proven to be unsafe by the courts. If the president had done what he said he would do, he would not have asked for so much money on an unsafe project."

Reid said he was "as happy as a lark" and that the decision will help him stop money from going to the project. The department requested $880 million for the project next year, the largest amount request in its history.

"They (Energy Department) may have to go on the Atkins diet, maybe South Beach. They are fat, fat, fat and ugly."

Sen. John Ensign was on a plane this morning and could not be reached for comment but spokesman Jack Finn said he was pleased with the outcome and praised Sandoval for this work.

Reid said former Gov. Bob Miller and Gov. Kenny Guinn should be complimented for "squeezing" money from the state Legislature to help pay for the legal team to bring the lawsuits.

The state lost its battle to stop the site in Congress two years ago, turning to the legal system as its second line of defense.

Two decades of opposition against the nuclear waste site and at least $100 million spent on preparation boiled down to three hours of oral arguments in the U.S. Court of Appeals in Washington in January. Such a long hearing is rare but the court opted to combine all the cases into one since it is such a complex topic.

The three-judge panel of Harry Edwards, Karen LeCraft Henderson and David Tatel asked tough questions to the state's team of lawyers as well as the Justice Department's and Nuclear Energy Institute attorneys.

After the argument, the state's legal "dream team" agreed there was no sure win and the project would most likely be allowed to go through with a license application but were careful not to speculate further.

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, a move that had previously been ruled out. The state's lead attorney, Joe Egan, said previously the statement could provide Nevada with a strong argument against the project.

The state brought six court cases, challenging the Energy Department, the Nuclear Regulatory Commission and the Environmental Protection Agency on several aspects of the project and a constitutional challenge

The court rejected the constitutional claims and dimissed the challenges against the department.

Nevada sued the department, saying it 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. It also claimed the EPA's radiation standards were not strong enough while the Nuclear Energy Institute claimed the site did not need a separate groundwater standard.

Nevada lost a previous case, Nevada v. Watkins, decided in the 9th U.S. Circuit Court of Appeals more than 10 years ago. The suit challenged the 1987 law that singled out Yucca as the only site to be studied as the spent fuel storage site.

Nevada lost that case because the court rejected its constitutional arguments on the law. The Supreme Court denied an appeal.

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