Yucca problems cited in court

Suzanne Struglinski

Tuesday, July 12, 2005 | 9:16 a.m.

WASHINGTON -- Nevada's lawyers are listing numerous problems with the planned Yucca Mountain nuclear waste dump as part of their effort to get the U.S. Court of Federal Claims to cancel the Energy Department's contract to take nuclear waste.

Nevada wants the court to order that utility ratepayer money that had been set aside to pay for a final storage site be refunded.

The lawyers call the department's schedule to finish the proposed nuclear waste repository at Yucca Mountain by 2012 or even later"sheer fantasy" and returning the money would allow nuclear utilities to pursue other storage options.

But the Nuclear Energy Institute, the industry's main lobbying group, wants the court to keep the contract in place and allow the ratepayer money to continue to be put toward the project.

"Since the passage of the NWPA (Nuclear Waste Policy Act), the federal government has expended substantial resources and has been making steady, albeit sometimes slow, progress toward establishing a repository," NEI lawyers Ellen C. Ginsberg and Michael A. Bauser wrote in the lobbying group's brief. "There has never been a determination that the Yucca Mountain site is not scientifically or technically viable or cannot be licensed by the NRC (Nuclear Regulatory Commission)."

In April, Judge Susan Braden said, "There is no evidence in the record that the government had reason to believe in 1983, 1989, or at present that: Yucca Mountain ever will be licensed to store spent nuclear fuel and high-level radioactive waste ..."

She asked the Justice Department and the Sacramento Municipal Utility District, along with anyone interested in the issue, to show why the court should not "void" the department's contract with the utility to take its nuclear waste and order the government to pay back the $40 million it put into the Nuclear Waste Fund because there is still no nuclear waste repository.

Nuclear power users pay a per-kilowatt-hour fee into the fund for the proposed nuclear waste dump at Yucca Mountain, 90 miles northwest of Las Vegas. At least 66 lawsuits have been filed like the one from the Sacramento Municipal Utility District. They all point out that the department is seven years behind schedule for taking the waste from the nuclear reactor sites.

Nevada Attorney General Brian Sandoval and other attorneys working for the state say in a 17-page document sent to the court on Thursday that "the repository in unlikely ever to open," based on the department's poor performance so far as a potential Nuclear Regulatory Commission licensee.

The document points to the lack of a complete license application, the incomplete document database, the unfinished new radiation standard to replace the one thrown out by a federal court a year ago, and the current investigations into possibly falsified scientific information based on e-mail exchanges by federal employees.

"At this point, however, any projection of when the repository might ever be open for business is pure conjecture, since numerous obstacles could either delay the project or altogether terminate it," Nevada's lawyers note in their court filing.

The attorneys also remind the court that Nevada will file more challenges if it feels the department's document collection, once finalized, does not meet the commission's rules, or if a new radiation standard does not meet requirements set by the National Academy of Sciences. The state also plans to challenge the license as soon as it is filed with the commission.

The Nuclear Energy Institute argues that only Congress could reset the Nuclear Waste Fund or cancel the department's contract to take waste.

To do otherwise "would call into question the overall plan for long-term disposal of used fuel and high level waste, which is the premise for licensing of existing and future plants," Ginsberg and Bauser wrote.

The industry, which strongly supports the Yucca project, says Congress wants a geologic repository and returning money to the fund "would have the effect of depriving the high-level waste program of appropriate funding, contrary to the clear intent of Congress."