Tuesday, January 28, 2003
Copyright © Las Vegas Review-Journal

State: NRC `watered down' rules

Filed legal brief claims federal agency made it easier to license Yucca Mountain

WASHINGTON -- The Nuclear Regulatory Commission "watered down" its rules to make it easier to license a nuclear waste repository at Yucca Mountain, the state of Nevada charged in a court document filed Monday.

Reversing long-held positions, the NRC "scrambled to retool" after Energy Department scientists concluded in the mid-1990s the primary natural features of Yucca Mountain might not contain radioactive particles from escaping into groundwater, the state said in a legal brief supporting one of its lawsuits against the project.

"NRC responded by seeking to change its rules to accommodate the result DOE desired," contrary to federal laws, state attorneys said.

The commission adopted a regulation in November 2001 that would judge a Yucca repository on its total system performance including corrosion-resistant waste canisters and drip shields.

"What our brief shows is that the NRC distorted principles of law to create a licensing rule for Yucca that would get the project licensed despite their failure to prove geologic containment at the site," attorney general Brian Sandoval said.

The 72-page legal brief was filed in the U.S. Circuit Court of Appeals for the District of Columbia, where judges are considering most of the challenges to the planned repository. The burial site would hold spent nuclear fuel from commercial power plants and much of the government's high level nuclear waste.

NRC spokeswoman Sue Gagner said the agency would not comment on the brief until it could be studied. The NRC also declined to comment on Sandoval's remarks.

The Energy Department and NRC, and executives with nuclear power trade groups, have defended the legality of the site rules, saying they were based on scientific advances that will improve safety at the site 100 miles northwest of Las Vegas.

Monday's brief lays out Nevada's case in a lawsuit filed against the NRC in April. The lawsuit is expected to be argued before a three-judge appeals panel in September.

The NRC lawsuit mirrors accusations the state has made in other lawsuits: that Yucca Mountain repository guidelines were changed contrary to the 1982 Nuclear Waste Policy Act. The law was passed by Congress to guide repository selection.

Also, it said the nuclear agency "watered down" the standard of proof DOE must meet to win licensing. A "reasonable assurance" of safety was changed to a "reasonable expectation," the state said.

"It imposes without explanation, radically different and weaker standards for the assurance of a repository license for Yucca than for any other repository in America," the lawsuit reads.

The lawsuit also alleges the NRC guideline violates the Atomic Energy Act and national environmental policy law by ignoring the period beyond 10,000 years when radiation doses from repository would be at their highest, and prevents Nevada from raising such "peak dose" issues in Yucca license hearings.