EPA won’t appeal radiation standard

Benjamin Grove

Thursday, Sept. 9, 2004 | 11:22 a.m.

WASHINGTON -- The federal government will not appeal to the U.S. Supreme Court to challenge a recent legal setback to Yucca Mountain, the Environmental Protection Agency said Tuesday.

The EPA will comply with the ruling from the U.S. Court of Appeals for the District of Columbia Circuit, which on July 9 affirmed a Nevada appeal, the EPA said in a statement.

The state had challenged the proposed nuclear waste repository's radiation standard, established by the EPA in 2001. The court ruled that the standard aimed at containing radiation at the site for 10,000 years violated federal law by disregarding far stricter standards recommended by the National Academy of Sciences.

Yucca critics had hailed the ruling, which formally takes effect today, as a significant victory that throws the future of the project into question.

The EPA accepts that ruling and now "intends to work to develop an appropriate regulatory response that complies with the court opinion," the EPA statement said. EPA spokesman John Millett today declined to discuss whether the EPA will now begin the process of formally setting a new standard.

As part of a massive lawsuit, the state of Nevada had challenged Yucca on a long list of issues but prevailed on only one -- the radiation standard. "Because the United States substantially prevailed in the court's decision, it has elected not to seek further court review," the EPA statement said.

The court's opinion stated that the EPA's 10,000-year radiation standard disregarded National Academy science, which called for a far stricter standard of several hundred-thousand years, or even as much as a million years.

That would be a difficult -- critics say impossible -- standard for the Energy Department to meet. The department manages Yucca and intends to apply for a license to construct the underground nuclear waste dump by the end of the year.

It is not clear how the department could ever prove to the Nuclear Regulatory Commission that Yucca could meet standards stricter than 10,000 years. The NRC would license and regulate Yucca.

"The problem for DOE (the Energy Department) now is: Is that the death of the project?" said Martin Malsch, a lawyer with Egan & Associates, which has led a legal battle against Yucca for Nevada.

But there is another option for the Energy Department -- Congress.

Pro-Yucca lawmakers could step in to legislate a standard that they believe Yucca could meet.

So far, if there is a such a movement afoot in Congress, the players are keeping it quiet. The Energy Department, nuclear industry leaders and pro-Yucca lawmakers do not appear mobilized in any immediate effort.

"We are not aware of anyone advancing proposals for legislation," said Sid Smith, spokesman for Sen. Larry Craig, R-Idaho, a leading pro-Yucca senator.

Rep. Joe Barton, R-Texas, chairman of the House Energy and Commerce Committee, a Yucca leader in the House, also does not have immediate plans to introduce radiation standards legislation, a Barton aide said today. The panel has jurisdiction over Yucca issues.

A spokesman for Sen. Pete Domenici, R-N.M., chairman of the Senate committee with jurisdiction over Yucca issues, also said he was not aware of efforts to push a new Yucca standards bill.

Lawmakers returned to Washington this week after a month-long break. They set an Oct. 1 target adjournment date and have a number of issues competing for their attention, including spending bills. So there may be little appetite to take up Yucca Mountain legislation before the election, especially given that the project is politically charged in battleground state Nevada.

The Nuclear Energy Institute, the leading nuclear power industry lobby group, is not leading an effort to push legislation, NEI spokesman Mitch Singer said. But he added that NEI is always in communication with Congress about Yucca issues, "including the radiation standard."

Meanwhile NEI, which lost its first appeal on the radiation standards issue last week, is mulling a Supreme Court appeal.

It's not clear if the Bush administration will throw its weight behind an effort to legislate a radiation standard in Congress. President Bush has not taken a public stand on Congress legislating a new standard.

During an August appearance in Nevada, Bush said, "I will allow this process to be appealed to the courts and to the Nuclear Regulatory Commission. And I will stand by the decision of the courts and the Nuclear Regulatory Commission."

Democratic challenger John Kerry has said he would veto any attempt to change the standard in an effort to keep Yucca on track.

White House spokesman Ken Lisaius referred questions about the radiation standards to the Energy Department. He said he was not aware of any high-level White House officials working with the department to goad Congress into action.

Nevada's lawmakers in Congress likewise have not heard about pro-Yucca lawmakers shopping new Yucca legislation in the Capitol, their aides said.