Saturday, July 10, 2004
Copyright © Las Vegas Review-Journal

YUCCA MOUNTAIN DECISION: State claims court win

EPA's standard for 10,000 years of safe storage ruled inadequate

Miners work earlier this year inside a tunnel at Yucca Mountain. A federal appeals court on Friday upheld the decision to single out Nevada for a nuclear dump but ruled that the federal plan does not go far enough to protect people from potential radiation. Photo by John Gurzinski. Evertt Rogers walks past a display Friday at the Yucca Mountain Science Center that poses a question central to an appellate court ruling against a planned nuclear waste repository. Although Energy Department scientists had been planning to build the repository to contain radiation for at least 10,000 years, a panel of judges ruled Friday that they have to do better. Photo by John Locher. Sen. John Ensign, R-Nev., speaks Friday at the Lloyd George U.S. Courthouse in Las Vegas about an appeals court ruling on safety standards for the Yucca Mountain Project. Photo by John Locher.

WASHINGTON -- After defeat upon defeat in the fight to stop the nation's most lethal nuclear waste from being buried in Nevada, state leaders said Friday that a decisive blow at last had been dealt to the Yucca Mountain Project.

State officials were jubilant after a panel of federal judges threw out a key health and safety standard in the federal government's plans to build a repository 100 miles northwest of Las Vegas.

The U.S. Court of Appeals for the District of Columbia Circuit invalidated a requirement that the repository be able to contain radioactive materials safely for at least 10,000 years, suggesting the period should be longer by possibly hundreds of thousands of years.

"For those who say Yucca Mountain is coming, throw in the towel -- the fight is not over," said Sen. John Ensign, R-Nev., at a news conference in the lobby of the Lloyd George U.S. Courthouse. "I think today's court ruling is a significant victory for the state of Nevada."

The ruling could derail the Yucca project for an indefinite period while federal agencies seek relief from Congress, pursue new rounds of legal appeals --possibly to the Supreme Court -- or rework their rules to the liking of the court.

A 100-page opinion, long awaited since judges heard technical arguments in January, dissected about a dozen points that the state of Nevada, environmental groups and the Nuclear Energy Institute had made in a half-dozen lawsuits. Attorneys said the state prevailed on points of varying significance, including key arguments against the health standards implemented by the Environmental Protection Agency and the Nuclear Regulatory Commission.

Yet the state lost several of its major claims, including a novel argument that the government had violated the U.S. Constitution by designating Nevada for nuclear waste burial over the state's objections. The mixed ruling allowed backers of the project also to claim victory.

"This is a very broad and sweeping win for the Yucca Mountain Program and is exactly what most observers expected, having observed the court arguments," said former Nevada Gov. Bob List, a paid consultant to the Nuclear Energy Institute. "While it is clear that the EPA will be required to revise its regulations, and that the modeling for project compliance will be adjusted accordingly, I do not expect significant delay to occur."

Attorney General Brian Sandoval said he believes the ruling spells the end of the Yucca Mountain Project, the repository the state has resisted for 17 years at a cost of $3 million in mounting its broad legal challenge.

"In my heart I believe that," Sandoval said. "The Energy Department and the EPA now have to meet higher standards, and Yucca just can't accomplish that."

After learning of the ruling, Peggy Maze Johnson, executive director of the statewide environmental group Citizen Alert, immediately began telephoning donors asking for money to expand her group's campaign against nuclear waste disposal in the state. Citizen Alert is a party to the winning lawsuit.

Maze Johnson was meeting with inspectors from the NRC when she got word of the decision.

"I just yelled, 'We won,' " she said. "The decision today said start from zero and send it back."

Reaction from officials in three agencies involved with the Yucca project -- the EPA, the NRC and the Department of Energy -- was more muted.

Energy Secretary Spencer Abraham issued a statement saying the decision validated all the Energy Department's work leading up to the 2002 designation of Yucca Mountain as a repository site.

"I am pleased with today's decisions handed down by the court," he said. "The court dismissed all challenges to the site selection of Yucca Mountain."

But according to Sandoval, Nevada's victory was on a key point, one "fundamental to the basis for site selection, licensing, groundwater and other issues."

The decision was the deepest blow to a suddenly reeling repository effort, which already had been buffeted by a series of recent setbacks.

The Yucca project faces deep 2005 budget cuts that DOE officials said could force as many as 1,700 layoffs in the coming months. Additionally, the department's handling of a licensing database has come under criticism, leading to appointment of a hearing panel to resolve the dispute.

Managers in the department's Office of Civilian Radioactive Waste Management also have acknowledged that they are eyeing the presidential race, in which Democrat John Kerry has vowed to terminate the Yucca project and put them out of jobs if he is elected.

"Yucca Mountain is not over; everyone has to understand that," said Sen. Harry Reid, D-Nev. "But the state has been getting some tremendously important breaks. This is news for all those naysayers who said we should give up and negotiate.

"This is a wound to a giant. It's a severe wound, but wounds heal."

The federal judges -- Harry T. Edwards, David S. Tatel and Karen LeCraft Henderson -- issued a clear assessment that the Bush administration rejected "sound science" in advancing the repository, said Joe Egan, the state's lead nuclear waste lawyer.

The judges invalidated an EPA standard requiring that the Energy Department prove the Yucca repository could shield the public from escaping radioactive elements from decaying nuclear waste for 10,000 years. In setting the 10,000-year standard, the EPA arbitrarily disregarded the recommendations of a National Academy of Sciences panel that had been ordered by Congress, the judges said.

The scientists said the radiation protections should be extended beyond 10,000 years to points when the greatest risk of radiation exposures might occur. That could be anywhere between several hundred thousand years to a million years, they said.

The EPA "unabashedly rejected NAS's findings," the judges said in their opinion.

The ruling raised questions of how long it would take for EPA to form new regulations and for the Nuclear Regulatory Commission to incorporate them into its licensing guidelines. Also, could DOE meet a different standard?

Egan said the judges, in another part of their decision, also confirmed that Nevada would be allowed to contest a broad range of environmental and administrative issues during Yucca licensing, if the program makes it that far.

However, Angelina Howard, executive vice president of the Nuclear Energy Institute, contended that the program setback was relatively minor.

"We think the agencies can accommodate that, and it shouldn't affect the schedule," Howard said, choosing to emphasize other segments of the ruling in which the government prevailed.

Abraham spokesman Joe Davis said DOE attorneys could not determine immediately how the court's ruling would affect the Yucca project. The department has a December target to submit a repository license application to the NRC, with hopes of opening a Yucca facility in 2010.

"Obviously, you can't get a license for Yucca Mountain without a standard, and now you don't have a standard because the court has vacated it," said Kevin Crowley, director of the Board of Radioactive Waste Management, a division of the National Academy of Sciences.

A DOE official who asked not to be identified said the court "has set forth some avenues of opportunity for us, and we're looking at those. You could appeal, the EPA could set another standard, or you could go to Congress. "

The judges suggested that EPA might ask Congress to intervene and pass legislation giving agencies permission to maintain the standard.

Reid, who has blocked other initiatives to speed up nuclear waste burial in Nevada, said chances are slim that such a Yucca Mountain bill would pass.

"I dare them to do it," he said. "Let's see them try."

Staffers for Sen. Pete Domenici, R-N.M., the chairman of the Senate Energy and Natural Resources Committee, were reviewing the opinion, according to spokeswoman Marnie Funk.

"This will be a topic of considerable discussion in the next few weeks, but it's a little early now to give a response," Funk said.

Yucca Mountain is expected to be discussed at a hearing Domenici scheduled for Tuesday to highlight the nuclear energy industry, Funk said.

Although applauding the ruling, Rep. Jon Porter, R-Nev., said he feared what the nuclear industry and the Energy Department might do next.

"I don't trust Washington," Porter said. "We are dealing with 550-plus politicians and politics and the industry and the Department of Energy. I am sorry, but I don't trust."

Review-Journal writers Henry Brean and Erin Neff contributed to this report.