Appeals court denies Yucca radiation request

Suzanne Struglinski

Tuesday, Oct. 12, 2004 | 11:06 a.m.

WASHINGTON -- A federal appeals court has denied a request to keep the Yucca Mountain radiation standards in place until the Supreme Court decides whether to hear the case.

With just under three months to go before the Energy Department plans to submit a license application for the planned nuclear waste dump, the court's original decision to throw out the radiation standard will take effect in a week or less.

In a one-page order issued Friday, the court denied the request by the Nuclear Energy Institute, the industry's lobbying arm, but gave no explanation of its decision.

The department has insisted it would meet its self-imposed deadline of Dec. 30 to file the license application, but Deputy Secretary of Energy Kyle McSlarrow said last month that goal may not be met.

State officials say that without a radiation standard any application the department would submit this year would be worthless because all the science and data in it would be based on a protection standard that no longer exists.

"It's a free country and you can mail packages to whomever you want but that doesn't mean it has any effect in the real world," said Joe Egan, an attorney hired by the state to handle Yucca issues.

Energy Department spokesman Joe Davis said the Environmental Protection Agency will develop an appropriate regulatory response to the court's decision.

"We have a whole lot of unanswered questions affecting the program right now, including a decision by the NRC (Nuclear Regulatory Commission) on the (document database), a regulatory standard yet to be determined and that is several months away, and the budget for the program."

The Energy Department has received other setbacks this year. The federal budget has not been passed and so far the project has been slated to receive less money than it hoped for to continue the work on the waste dump. The NRC also found it had not met a deadline to turn in a database of backup documents for its application -- a decision that could push the project timeline back.

Davis did not say whether the department still could meet the Dec. 30 deadline for the license application.

In July, the U.S. Court of Appeals for the District of Columbia threw out the 10,000 year radiation compliance period for the proposed nuclear waste storage project at Yucca, 90 miles northwest of Las Vegas, had to meet. The court found the Environmental Protection Agency did not follow recommendations of the National Academy of Sciences, as outlined in a federal energy law. The academy saw no reason to use a 10,000-year standard but wanted the site to be able to hold radiation in through the peak dose period, which would come several hundred thousand years into the future.

The court also threw out the NRC's licensing rule using the radiation standard until Congress changed the law requiring the EPA to follow the academy's recommendation, or the EPA came up with a new standard. This means the commission could not evaluate that portion of the license until a new compliance standard was in place.

The radiation standard stayed in place for several months because the Nuclear Energy Institute asked the court to rehear the case, which was denied, and then asked the court to keep the standard in place until the Supreme Court could decide to take up the case.

The Department of Justice's Office of Solicitor General has said the federal government will not take the case to the Supreme Court.

Egan said the state also will not pursue the matter in the Supreme Court. He said by taking out the radiation standard, the state has removed the "constitutional defect" it argued wrongfully singled out the state.

The court ruling did not outright stop the project, but may delay it because a new standard could take at least two years to complete, especially if the academy is asked to provide comment on it, Egan said.

The department aims to open the repository by 2010.

NEI spokesman Steve Kerekes said the group's senior staff is evaluating what this decision means and what its next steps will be.

NRC spokesman David McIntyre said if and when the commission receives a license application, it will review it for technical information to see it if can be accepted and the court's decision will be weighed at that time.

"The 10,000 year question will be part of that review," McIntyre said.

Calls to the Environmental Protection Agency were not returned.