EPA proposal gives Yucca a boost

Benjamin Grove and Suzanne Struglinski

Wednesday, Aug. 10, 2005 | 10:55 a.m.

WASHINGTON -- The Environmental Protection Agency gave Yucca Mountain a burst of momentum on Tuesday when it issued a revised radiation-release rule that Nevada officials say is dangerously lax.

Energy Department officials said the proposed nuclear waste repository could meet the standard and they hope the new rule will help put the beleaguered project back on track.

But Nevada officials vow to again take the fight over radiation standards to court.

"If this bogus new standard, or anything close to it, ends up being adopted by EPA, Nevada will sue them again," Attorney General Brian Sandoval said.

The proposed new standard actually offers future generations less protection from radiation than the old one and does not mesh with a federal court's requirement for a new standard, Nevada officials and Yucca critics said.

Gov. Kenny Guinn called it "junk science at its worst."

"I can't imagine how they could have done anything to make themselves more vulnerable in the court of law as well as the court of science," Guinn said.

The Environmental Protection Agency on Tuesday proposed regulations that limit the amount of radiation that could be safely emitted from the proposed underground repository for high-level nuclear waste at Yucca Mountain, 90 miles northwest of Las Vegas.

The agency in 2001 established a 15-millirem radiation exposure limit for up to 10,000 years, which means a person living in the immediate vicinity of Yucca could receive that much radiation in a year -- roughly equivalent to a chest X-ray.

But delivering a major setback to Yucca last year, a federal court threw out that standard, saying it was not "based upon and consistent with" recommendations by the National Academy of Sciences, as Congress required.

The court said the academy rejected 10,000 years "as a proper benchmark but EPA used it anyway." The academy said the standard should go out to the "peak dose," when the radiation levels would be at their highest. This could occur about 100,000 years or more into the future.

That left two courses of action for Yucca to proceed: Congress could allow the agency to create a standard outside of what the academy wanted, or the EPA could revise the standard to bring it in line with the academy's recommendation.

The agency proposed a "two-tiered" rule Tuesday. One tier maintains the 15-millirem standard for up to 10,000 years, and the other limits exposure to 350 millirem per year for 10,000 to 1 million years.

The rule is not final. It will go through a 60-day public comment period before a finished rule is published and implemented by the agency.

Energy Department officials seemed content with the standard.

"The department believes this is a standard that can be met," Energy Department spokesman Craig Stevens said. "This is a positive step in the process."

The radiation standard is important because the Energy Department must prove that Yucca can meet the standard in order to obtain a license from the Nuclear Regulatory Commission. The NRC ultimately will determine whether Yucca can meet the standard, and whether Yucca can be licensed as a safe repository site.

The next step now for the department is to submit a license application, which it aims to do early next year. The NRC could take up to four years to review and approve the license before construction could begin. Yucca is not expected to begin accepting waste until 2012 at the earliest.

Nevada cannot challenge the new standard in court until it becomes final, but state officials will use the time to prepare a challenge, Nevada senior deputy attorney general Marta Adams said.

"It's amazing how much this deviates from what the NAS requires," Adams said.

Among the complaints of Yucca critics and Nevada officials is that the EPA is proposing a more lax standard at the time when the repository's radiation levels would be at their highest -- after 10,000 years. Nevada believes the waste storage containers and other man-made elements will fail by that time and the rock will not offer enough protection to contain radiation.

Joe Egan, a lawyer who handles Yucca issues for the state, said the EPA gave no justification for a standard that increases 23-fold between 10,000 and 10,001 years, except that the performance of the repository is uncertain.

"What does that have to do with how much radiation a human should get?" Egan said. "They fit the rule to meet the repository."

Jeffrey Holmstead, EPA's assistant administrator for air and radiation, said EPA officials had carefully reviewed the federal court ruling and were "quite confident" that their new standard would hold up in court if Nevada officials challenge it.

As part of its deliberations, the EPA considered current levels of background radiation in a number of major U.S. cities, he said. Currently, U.S. citizens receive various levels of "background" radiation from a number of sources, mostly natural sources, depending on where they live and their lifestyles.

People can receive radiation from natural sources that include the sun, soil, rocks, even food and other people. Radon gas is a common source of radiation often found in homes. People also get doses from man-made sources such as X-rays. A chest X-ray emits about 10 millirem of radiation and a mammogram about 30 millirem, Holmstead said.

People receive about 350 millirem a year on average, Holmstead said.

People living in the high-elevation city of Denver receive about 700 millirem of radiation a year, Holmstead said. In part relying on that statistic, the EPA deemed it "acceptable" for a person living near Yucca to receive roughly 350 millirem in background radiation, plus an additional 350 millirem from Yucca, Holmstead said.

Egan said this means the federal government is saying Nevadans can get twice the background levels of radiation than the rest of the country.

Holmstead said the EPA had avoided trying to set a radiation standard beyond 10,000 years in its first attempt in 2001 because it was so difficult to set standards that far into the future.

The EPA spent seven years researching and developing the standard released in 2001. It took just over a year to release a revised standard.

Devising a new 1 million-year standard was "a real scientific challenge," but the EPA issued it in order to respond to the court's direction, he said.

"The time frame we're dealing with here is really unprecedented," Holmstead said.

When pressed on how the public could have confidence in the standard, Holmstead said, "We do the best job we can based on all the science we have."

The radiation standard's 10,000-year compliance period would begin when Yucca is filled to capacity, currently set at 77,000 tons, and sealed, which could be roughly 50 years after it begins collecting waste.

A 60-day public comment period begins immediately. There will be two public comment hearings in Nevada and one in Washington, Holmstead said. Senate Minority Leader Harry Reid, D-Nev., and Sen. John Ensign, R-Nev., had asked for three hearings in Nevada and a 180-day comment period.

Some nuclear power industry officials, as well as state officials in states with nuclear waste piling up at power plants, were initially pleased with the EPA standard.

"On the surface, it gives the DOE the opportunity to move on with the license application," said Martez Norris, executive director of the Nuclear Waste Strategy Coalition, another coalition of state government agencies and nuclear utilities. "It's a very positive sign."

Energy Department officials likely will not be surprised or troubled by the 350-millirem standard, said Charles Pray, Maine state nuclear safety advisor and a former Energy Department official. Department officials all along have anticipated that they might have to meet a two-tiered standard, said Pray, who is also co-chairman of the Yucca Mountain Task Force, a coalition of state regulatory agencies and nuclear industry officials advocating for Yucca.

"I think the science and the technology are there" for Yucca to meet the post-10,000-year standard, Pray said.

Brian O'Connell, director of the nuclear waste program at the National Association of Regulatory Utility Commissioners, agreed Yucca should be able to meet the 350-millirem standard.

"It looks comfortable for compliance," O'Connell said. "I'm glad it's not 15 millirem for a million years."

But Guinn and Sandoval argued that the standard suggests that it is acceptable for Nevadans to receive twice a normal radiation dosage.

"For the first time ever in the world, it seeks to establish the level of 'natural background radiation' received by Americans as a tolerable threshold for additional radiation from man-made sources," they said in a news release.

Sandoval said, "In a snub to the scientific community and a federal appeals court in Washington, the EPA today issued a proposed standard for the licensing that is 100 times more lenient than what the government permits for releases from nuclear power plants."

The two Republican state officials said Nevadans could suffer 100 more times radiation exposure than what the federal government now permits for residents living near nuclear power plants. They said it is "by far the most lenient radiation protection standard proposed for any nuclear waste disposal project in the world."

Reaction from Nevada's congressional delegation was swift and shrill.

"I am appalled at the complete arrogance of the EPA in announcing these standards," Ensign said. "We've been down this road before. The federal appeals court already determined that the 10,000-year standard violated the law. This new standard is no better, and the EPA has provided no scientific basis for the 350 millirem figure."

"I am astounded that the EPA actually put those recommendations on paper," Reid said. "What the agency released today is nothing more than voodoo science and arbitrary numbers."

The post-10,000-year standard is not grounded in science, Rep. Jim Gibbons, R-Nev., said.

"EPA has an obligation to protect public safety today, tomorrow, and in a million years," Gibbons said. "Yet, the EPA thought it would be OK to increase its radiation standard from 15 millirem to 350 millirem -- a 23-fold increase when the clock hits 10,000 years and 1 day simply because we don't know what the future holds."

Gibbons noted the contrast in the EPA previously arguing for a very low standard for arsenic in drinking water because scientists do not know what level of arsenic is safe.

"They have failed us," Gibbons said of the EPA, during an appearance on Las Vegas ONE, Cox cable channel 19.

Rep. Jon Porter, R-Nev., asked, "Where's the proof that an additional 350 millirem per year of radiation won't have a negative impact on a human being? That contravenes 50 years of radiation science."

Reid and Berkley also alleged that the EPA had issued its standard as part of a Bush administration effort to jump start the stalled Yucca program.

So did Arjun Makhijani, president of the Maryland-based Institute for Energy and Environmental Research, noted that the Energy Department in 1999 told Nuclear Waste Technical Review Board, a congressionally mandated watchdog group, that the maximum dose from Yucca would be 200 to 300 millirem per year several hundred thousand years into the future. That's conveniently just under the 350-millirem level, Makhijani noted.

"The dose limit seems designed to protect the industry's interest in a bad site, rather than public health," said Makhijani, who supports geologic disposal of nuclear waste, but believes Yucca is a bad site. "This is one more example of what I have called the 'double-standard standard.' When Yucca Mountain cannot meet the rules, the federal agencies change the rules to fit Yucca Mountain."

A 350-millirem level is still dangerous, Makhijani said. He said a person exposed to 350 millirem per year every year for 70 years would run a 1-in-40 chance of getting cancer. He called the EPA standard the worst single action the agency has taken since he began analyzing the agency nearly 25 years ago.

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