published by WISE/NIRS Nuclear Monitor on July 30, 2004
What a difference two years can make. On 9 July 2002, the U.S. Senate overrode Nevada's veto of the proposed Yucca Mountain national repository for highly radioactive waste, a huge blow to dump opponents. But on July 9, 2004 the U.S. Court of Appeals for the District of Columbia Circuit dealt a huge blow to Yucca proponents.
(614.5631) NIRS - Although the three-judge panel ruled against 11 of the 12 legal challenges the State of Nevada and environmental groups argued before it on 14 January 2004 (see WISE/NIRS Nuclear Monitor 601.5567 "Yucca's Day in Court,"), the one case Yucca's opponents did win is a potential show stopper, perhaps marking the beginning of the end for the Yucca Mountain Project (YMP).
The court ruled that the U.S. Environmental Protection Agency (EPA) radiation release regulations for Yucca Mountain violate the Nuclear Waste Policy Act (NWPA). Specifically, EPA's termination of public health protections 10,000 years after wastes would be buried at Yucca violate the NWPA's explicit requirement that EPA regulations be "based upon and consistent with" National Academy of Sciences (NAS) recommendations.
Using unusually blunt language, the court stated "Only in a world where 'based upon' means 'in disregard of' and 'consistent with' means 'inconsistent with' could EPA's adoption of a 10,000-year compliance period be considered a permissible construction" of the Energy Policy Act of 1992, the relevant amendment to the NWPA. (1) In fact, NAS advised that regulations be enforced till the time of peak dose from radiation to people downstream of the dump, projected to be hundreds of thousands of years after wastes would be buried at Yucca. (2)
Nevada dump opponents hailed the ruling as "stake through the heart" for the YMP, declaring the dump "effectively dead" because the site's earthquake-fractured geology cannot meet the more stringent standard required by NAS and the court (see articles at www.reviewjournal.com/news/yuccamtn/ beginning on 10 June).
The U.S. Department of Energy (DOE), on the other hand, assured the Senate Energy and Natural Resources Committee that the court ruling would not even slow down the YMP, that the license application would be submitted by the end of this year, and that the dump would open by 2010. (3) The U.S. Nuclear Regulatory Commission (NRC), however, is "scrambling" to determine if it can even accept the license application from DOE given the court ruling. NRC Commissioner Ed McGaffigan admitted that once the legal questions are answered, the dump would still require ten years to grant an operating license - violating DOE's self-imposed 2010 deadline by several years at least. (4)
In addition to Nevada, the coalition of environmental organizations that sued EPA over its woefully inadequate Yucca regulations includes Citizen Action Coalition of Indiana, Citizen Alert of Nevada, Natural Resources Defense Council (NRDC), Nevada Desert Experience, Nevada Nuclear Waste Task Force, NIRS/WISE, and Public Citizen. NRDC attorney Geoff Fettus argued the environmental coalition case before the court.
Through a change in the law, Congress could overrule the court thereby re-establishing EPA's rejected 10,000-year standard. Also, EPA, DOE, and nuclear industry appeals to the full D.C. Circuit Court or even to the Supreme Court are expected. In addition, EPA could simply rewrite its regulations, as the court requires, although that process could take years. (5) Tellingly, pro-dump Senate Energy Committee Chairman Pete Domenici (Republican of New Mexico) referred to the court ruling as "ominous" and said "It is terrifically important that we find a solution to this…The entire nuclear power industry in the United States could stand or fall with this interpretation." (6)
The court's decision came at a bad time for dump supporters. A miscalculated attempt by the Bush Administration to take Yucca "off budget" (that is, to allow DOE to access the Nuclear Waste Fund directly without the YMP having to compete with other federal programs in the annual congressional budget and appropriations battles) has left the YMP facing a major budget shortfall for Fiscal Year 2005 (FY05). (7)
In addition, DOE's attempt to initiate the license application phase of the YMP is being challenged by Nevada, with friend of the court briefs filed by Nevada Nuclear Waste Task Force, NIRS/WISE, and Public Citizen. DOE "certified" its over 5 million pages of documentation in support of a YMP license application on 30 June. The dump opponents' challenge argues that DOE's rushed filings are incomplete, impossible to access effectively, and not even posted to the official NRC "Licensing Support Network" website. Oral arguments took place before a NRC Atomic Safety Licensing Board (ASLB) three-judge panel on 27 July 2004 and a decision is pending. If the ASLB rules in favor of DOE's document certification of 30 June, opponents to the YMP who want to challenge DOE's license application as official intervenors before the NRC ASLB would have only until 30 September to file any and all documents they plan to use in the upcoming 3 to 4 year-long licensing proceedings, despite the fact that DOE has not yet submitted its license application, nor even settled upon a final repository design. (8)
(1) "Nuclear Energy Institute vs. Environmental Protection Agency," U.S. Court of Appeals for the District of Columbia Circuit, 9 July 2004, page 29. See: http://www.state.nv.us/nucwaste/news2004/pdf/usca040709.pdf. See also Public Citizen's summary of the lawsuits at www.citizen.org/cmep/energy_enviro_nuclear/nuclear_waste/hi-level/yucca/articles.cfm?ID=10882
(2) "Technical Bases for Yucca Mountain Standards," Committee on Technical Bases for Yucca Mountain Standards, Board on Radioactive Waste Management, Commission on Geosciences, Environment, and Resources, National Research Council, National Academy Press, Washington, D.C., 1995.
(3) Chris Baltimore, "Nevada Waste Site Plan to Proceed Despite Ruling," Reuters, 13 July 2004, www.reuters.com/newsArticle.jhtml;jsessionid=XUADLENAMH2NOCRBAELCFFA?type=topNews&storyID=5661010 or http://www.planetark.com/dailynewsstory.cfm/newsid/26032/story.htmNevada
(4) Steve Tetreault, "Yucca ruling has agency scrambling: NRC seeks recommendation on whether to accept nuclear waste dump application," 22 July, 2004, Las Vegas Review Journal, www.reviewjournal.com/lvrj_home/2004/Jul-22-Thu-2004/news/24367426.html
(5) Matthew Wald, "Ruling on Nuclear Site Leaves Next Move to Congress," New York Times, 15 July 2004, http://www.nytimes.com/2004/07/15/politics/15yucca.html
(6) J.R. Pegg, "Yucca Mountain Project Radioactive To Nevadans," Environment News Service, 14 July, 2004, http://www.alternet.org/envirohealth/19233/
(7) The Bush Administration wants $880 million for the YMP in FY05. At press time, only $131 million has been budgeted by Congress, although the Bush Administration and dump supporters in Congress are strategizing to restore funding to at least the FY04 level of $577 million to keep the YMP "on track". See Suzanne Struglinski, "Biggest Yucca obstacle may be budget: Congress has yet to boost funding," Las Vegas Sun, 26 July, 2004, www.lasvegassun.com/sunbin/stories/text/2004/jul/26/517234152.html
(8) See Suzanne Struglinski, "Panel to evaluate state's challenge of Yucca database," Las Vegas Sun, 9 July, 2004, www.lasvegassun.com/sunbin/stories/text/2004/jul/09/517148260.html
Contact: Kevin Kamps at NIRS email@example.com