Fate of repository shifts back into EPA’s hands

Suzanne Struglinski

Monday, July 12, 2004 | 10:56 a.m.

WASHINGTON -- A federal appeals court decision Friday puts the fate of the proposed Yucca Mountain nuclear waste repository in the hands of the Environmental Protection Agency unless Congress intervenes.

Nevada officials are optimistic the ruling will ultimately stop the Energy Department's plan to store nuclear waste at Yucca Mountain, 90 miles northwest of Las Vegas.

Attorney General Brian Sandoval declared the project dead, but the nuclear industry and the department also declared victory, noting that the court rejected most of Nevada's challenges.

"There are multiple paths forward, no one knows what the end is," said Steve Kraft, director of waste management at the Nuclear Energy Institute.

He emphasized that nothing has changed in the project since Friday, that the court did not order work stopped on the project and that several years could pass before the effects of the decision could really be felt.

"We won't know what's changed until those paths are taken; until it ends you don't know," he said.

The U.S. Court of Appeals for the District of Columbia threw out the majority of Nevada's challenges, but it ruled that the Environmental Protection Agency did not follow the law and set a standard for how long the project should contain radiation without heeding the advice of the National Academy of Science.

The EPA said 10,000 years. The academy said it should be for the peak life of the radiation, which could up to 300,000 years. Nevada officials say that would mean the project is dead because the project couldn't be built to last for that long.

However, both the federal government and the state are expected to appeal the court ruling and, perhaps more importantly, Congress, which approved the repository, could get involved and make a law that would essentially overturn the court's ruling.

"They're (DOE) going to the Hill," said Geoff Fettus, an attorney for the Natural Resources Defense Council (NRDC). Fettus argued part of the case against the standards.

The department has asked Congress earlier this year to change another NRDC court case, coincidentally won by Fettus, that found the department did not have the authority to classify high-level radioactive waste in three states as something else in order to leave it there. The department asked Congress to grant it the authority. The Senate approved the change just for South Carolina, while the House did not approve the measure. A congressional conference committee is still considering it.

The department could ask Congress to change a number of things, but Michele Boyd, legislative representative for Public Citizen, said it would be "incredibly foolish" for any member to vote to remove the requirement for the academy's recommendation on the project because it would remove key scientific oversight.

The court threw out the 10,000 year standard and ordered that the agency must either issue a revised radiation standard that follows the academy's recommendation or ask Congress for legislative authority to deviate from the academy's recommendations.

"It was Congress that required (the) EPA to rely on (the academy's) expert scientific judgment, and given the serious risks nuclear waste disposal pose for the health and welfare of the American people, it is up to Congress -- not (the) EPA and not this court -- to authorize departures from the prevailing statutory scheme," according to the court decision.

The court also threw out the Nuclear Regulatory Commission's licensing standard that also used the 10,000-year compliance period. The department is in the midst of working on the project's license application it planned to submit to the NRC in December using that 10,000-year compliance period and other radiation standards.

"It's going to be difficult for (the) DOE (Energy Department) to submit a license application when they don't know the standards they have to meet," Fettus said. "This is critical to licensing. I think (the) DOE would like to relegate this as a minor footnote, but it's not."

The department has said for years it needs to submit its license application by this December to reach its planned 2010 opening date.

Boyd said there is no way the department could submit the license application because the 10,000-year compliance period is no longer legal. Due to the court decision, it no longer exists.

But Energy Secretary Spencer Abraham, like the Nuclear Energy Institute, the nuclear industry's lobbying group, which also supports the project, did not see the decision having a large effect on the project.

Instead, Abraham and NEI released statements pointing to the court's rejection of Nevada's challenges against Congress's approval of the project, the department's selection process and the commission's licensing criteria.

"While the Court did not question the scientific validity of the Environmental Protection Agency's standards, it did vacate one aspect of the standard, the 10,000-year compliance period," Abraham said. "Therefore, DOE will be working with the EPA and Congress to determine appropriate steps to address this issue."

Angie Howard, NEI executive vice president, said the decision should not delay the project.

"We are confident the standards can be addressed and the project will move forward," Howard said. "The project can operate safely beyond 10,000 years and it's a matter of just going back and making some decisions."

Howard said it was premature to say exactly what the next steps would be but said that more research has been done since the academy's recommendations.

Fettus said that by going back to the academy's standard, which will reach far beyond the original 10,000-year mark, the geologic makeup of the mountain will have to be the main barrier against radiation harming the public because no engineered barrier will last that long.

"It can't rely on manmade barriers," Fettus said. "The real fundamental issues here is the geology. Is it adequate? This is going to force that assessment. We cannot overstate the importance of that finding by the court."

Fettus said there is no specific timeline set for the agency to start working on a new rule, but it is "a domino effect" that will put the licensing process on hold until the agency creates a new rule and the commission creates new licensing criteria based on that rule.

A new agency rule will take time to create. The academy's radiation standard recommendation came out in 1995 and the agency did not finalize the rule until 2001.

Antonio Rossman, a San Franciso-based attorney for Nevada, estimated it would take at least two years for the EPA to set a new standard, but then the Nuclear Regulatory Commission would also have to make its own new rule, which would also take time. Both would need public comment periods, drafts, final evaluations and other steps required by law when making federal rules.

Meanwhile, Rossman pointed out that the Nuclear Waste Policy Act act prohibited filibusters in the Senate and specified the committees that could address the bill that would approve Yucca Mountain. He said those restrictions, which played out in 2002, would not be in place on any bill the department would try to push through.

"Now all the rules in Congress to deal with this acute bias toward the minority can be put into play," Rossman said.

Nevada's congressional delegation was quick to praise the decision Friday, but also knew it did not immediately spell the end of the project.

"I have no doubt that the White House and the nuclear power industry are going to fight the court's action, but this should serve as a warning to both, that science, not politics, must guide this process," said Rep. Shelley Berkley, D-Nev. "We have already wasted billions of dollars on a hole in the Nevada desert, and today's court ruling only proves that the Yucca Mountain is unsafe, unwise and unworkable."

Rep. Jon Porter, R-Nev., said he had been waiting for Friday's decisions for 20 years and that is was a "huge win" for the state but that he still "does not trust Washington, D.C."

"I'm not going to let my guard down," Porter said. "Both Democrats and Republican want to find a plan to store the waste, there are 29 states looking for a place for it. I know how serious of an issue this is, there are 400 member that support it and they will try to find a way. There are so many agendas involved."

"I wish this would be the end of it but not it's not until I see the last shovel of dirt go into the hole," Porter said.

Rep. Jim Gibbons, R-Nev., called the decision a "fatal blow" to the project, especially because the department would have to go back to Congress to make a change or prove the site will be safe beyond 10,00 years.

"That will be a high standard to meet, and one that I doubt the DOE could realistically meet. Ultimately, (Friday's) ruling creates a monumental obstacle and uncertain delay in the licensing process for Yucca Mountain," Gibbons said.

"I don't think Congress is going to be easily swayed to deviate from its own safety requirement," Gibbons said. "Whether they can breathe life back into the cadaver, I don't know."

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