Tuesday, December 03, 2002
Copyright © Las Vegas Review-Journal

NUCLEAR WASTE: State files challenge to Yucca

Legal brief says DOE acted improperly in selecting site

President Bush and Energy Secretary Spencer Abraham used flawed and incomplete information this year to recommend Yucca Mountain for entombing the nation's spent nuclear fuel, leaving many questions unanswered about terrorism, public safety and the repository's design, according to court papers Nevada filed Monday in Washington, D.C.

Among the concerns raised in the court documents is a new scenario: the specter of a terrorist attack that would result in a nuclear chain reaction involving metal casks of spent fuel being transported to the mountain, 100 miles northwest of Las Vegas.

"It will become clear that (the Energy Department) knew the site should be disqualified, failed to do so and then embarked on a program to mislead the Congress and others to believe the site is suitable," state Nuclear Projects Agency chief Bob Loux said in a telephone interview late Monday.

"They also failed to complete site characterization as they openly acknowledge in the administrative record. If the state of Nevada is correct in these allegations, then the decision by the secretary and the president will be thrown out," he said.

The legal brief, more than 50 pages long, asserts that government scientists realized as studies of the Yucca Mountain site progressed in the past 10 years that the volcanic-rock ridge itself is inadequate to isolate deadly spent fuel, as Congress intended, in a maze of tunnels.

The brief is Nevada's opening statement for a consolidation of some of its lawsuits that have been sent to the District of Columbia Circuit of the U.S. Court of Appeals. Clark County and the city of Las Vegas are co-petitioners with the state in the appeal, which was filed by lawyer Joseph Egan, a nuclear engineer who heads the state's special legal team.

The brief sums up how, in the state's view, DOE failed to assess all the effects of transporting and burying highly radioactive waste, and sought to change rules and obscure the required procedure to find the site suitable when it should have been disqualified.

DOE's final impact statement "failed to address realistic sabotage scenarios involving spent fuel transport and thus vastly understated the risks and consequences of undertaking thousands of such shipments if Yucca proceeds," the court papers state.

Later the papers note that "DOE did not consider the risk that a warhead exploding inside a spent fuel container could cause fissile nuclear material inside to create a nuclear chain reaction, or `criticality,' whose consequences would catastrophically exceed the postulated consequences of the relatively tame event described" in the final impact statement.

Past news reports have alluded to the possible spread of nuclear materials from a missile blowing a hole in a waste canister, but not a strike that could cause a nuclear chain reaction.

Allen Benson, a DOE spokesman for the project, now known as the Office of Repository Development, said agency officials "can't comment on something we have not had the opportunity to review."

"It's not surprising that Nevada would file lawsuits at every opportunity in an effort to stymie the project," he said.

According to the state's court documents, DOE "acknowledged the danger of criticality events in connection with the mere storage of these same casks in the `no action' alternative."

The papers cite references to rainwater and fire inducing nuclear chain reactions in spent fuel in storage, but "ignored the far more realistic risks of critically occurring in a sabotage event, where, for example, an exploding TOW missile might shred the front and back hulls of a cask moving through a city, exposing spent fuel to rain, fire or firefighters' spray, inducing criticality."

TOW stands for "tube-launched, optically tracked, wire-guided." The TOW anti-tank missile weighs less than 50 pounds, costs less than $200,000, and is in use by militaries in 40 countries, according to its manufacturer, Raytheon Corp. It can be fired from a 200-pound launcher stationed on the back of a flatbed truck.

In summary, the state's brief contends that the final impact statement for the Yucca Mountain Project left "critical aspects of the project unassessed; segmented out the transportation component for future analysis; failed to disclose statutory violations; and failed (to) evaluate realistically the consequences of terrorism in spent fuel transport." The papers note that transportation risks from 54 of 131 sites were not assessed.

Congress approved construction of a repository at Yucca Mountain on July 9, overriding Gov. Kenny Guinn's veto of the project. Bush signed the resolution into law on July 23.

The court papers on Monday state, however, that "all Congress really did, in classic legislative veto fashion, was follow Nuclear Waste Policy Act procedures to the letter and cancel out Nevada's veto of the president's siting decision; it did not forever shield that decision ... from judicial review."

The papers assert that DOE knew in 1998 that Yucca Mountain was not qualified for containing nuclear waste based alone on the time it takes groundwater, potentially laden with radioactive materials, to reach the off-site environment.

"The secretary had determined that up to 20 percent of all water moving through the repository would reach the accessible environment in less than 1,000 years," the papers state.

They say DOE blundered its assessment of a so-called "no action" alternative by failing in the final impact statement to recognize the agreement the department made with PECO Energy, operator of the Peach Bottom nuclear plant near Philadelphia. That deal allows the Peach Bottom spent fuel to be stored at the site under government ownership in exchange for reducing PECO Energy's payments to the nuclear waste fund by up to $80 million over 10 years.

"It is not necessary to prove here that the PECO alternative, implemented on an industrywide basis, would be superior to proceeding with Yucca," the state's court papers say.

The state claims the Energy Department also knowingly failed to evaluate the need for obtaining a hazardous waste permit from Nevada when it issued its final environmental impact statement. The hazardous materials include hundreds of millions of pounds of metal that scientists are relying on as part of a system of so-called engineer barriers to contain radioactive materials.

Members of the public, the court papers say, told DOE "that waste slated for Yucca will contain several listed hazardous materials ... many of which are toxic and soluble in water."

In his comments, one observer, Jacob Paz, noted that DOE never completed a valid, large-scale study of how compounds of heavy metals in corroding waste containers would interact with the mountain's real conditions. For example, natural compounds in the mountain will enhance the spread of toxic chromium, said Paz, who holds a doctorate in environmental health science.

The essence of his comments were echoed in a Nov. 22 letter from a presidentially appointed panel, the Nuclear Waste Technical Review Board, to Civilian Radioactive Waste Management Director Margaret Chu.

"The board encourages continued corrosion testing and analysis supporting basic understanding of waste package corrosion," the board's letter states.