LAS VEGAS, Nevada — Nevada politicians and the state’s legal experts claim a July ruling by the Washington, D.C., U.S. Court of Appeals is enough to permanently kill the Yucca Mountain nuclear waste storage project. But nuclear industry officials say they will continue to work to bring 77,000 tons of highly radioactive spent fuel rods from nuclear power plants to the site, 100 miles northwest of Las Vegas (HCN, 8/5/02: Yucca heads for the courts).
In the ruling on a group of consolidated cases, a three-judge panel rejected four of the six legal challenges raised by the state, including a constitutional argument that the federal government had no right to bury nuclear waste here over the state’s objections.
But the court did rule that the U.S. Environmental Protection Agency’s "compliance standard" — which requires that the repository be able to safely contain harmful radioactive materials for 10,000 years — disregarded recommendations from a 1995 National Academy of Sciences study that the standard be hundreds of thousands of years, or longer.
Joe Egan, an attorney heading Nevada’s legal team, says the decision makes it nearly impossible for the U.S. Department of Energy (DOE) to get the site approved. "The court recognized the standard was arbitrary and flew in the face of sound science," says Egan. "The DOE is going to poke at the cadaver for a while, but even they are going to learn that it will never happen."
Kevin Crowley, the director of the National Academy of Sciences’ National Research Council on Radioactive Waste Management, says the choice of a 10,000-year standard was a "policy" decision. "The longer you regulate something, the more expensive it is," he says, "so you regulate to a shorter period of time and spend less."
Crowley says that if a new health standard is put in place, energy officials and engineers may, for example, be forced to strengthen the canisters designed to hold the waste.
But Nevada maintains that the problems go far beyond the casks themselves. Steve Frishman, a geologist and technical policy coordinator with the Nevada Agency for Nuclear Projects, says Yucca Mountain is so porous that it cannot contain the waste for any period of time once the canisters corrode. As a result, Frishman says, the radioactive materials will invade the environment and water table.
"It’s not a matter of if," he says. "It’s a matter of when."
Punt to Congress?
Sen. John Ensign, R-Nev., and Sen. Harry Reid, D-Nev., applauded the court’s ruling, but admitted the fight is far from over. The Energy Department’s effort "has been hurt bad, but the nuclear waste folks are very resilient," Reid says.
Steve Kraft, director of waste management for the Nuclear Energy Institute, which represents nuclear power plant operators, says the court never offered an opinion on what the radiation safety standard should be, merely ruling that it didn’t like the way the EPA arrived at the 10,000-year standard.
"I don’t think this is over at all. (The court) never said 10,000 years was wrong or unsafe," says Kraft. "If ultimately there is a new standard and ultimately the DOE can’t meet it, every other site ever looked at is back on the table. (But) nobody is discussing that right now."
Were that to happen, Hanford, Wash., and Deaf Smith County, Texas — which were on the finalist list before Congress designated Yucca Mountain as the sole site for consideration in 1987 — could be up for reconsideration; two sites in southeast Utah were on the semifinalist list.
But what’s more likely to happen is one of three things: The Energy Department could rework the safety standard and extend the time period; it could appeal the decision; or it could ask Congress to approve the 10,000-year standard as an adequate time frame.
Some of those fighting the Yucca project suspect the Energy Department will try to get the 10,000-year mark through Congress. The most likely lawmakers to usher in legislation are ardent project supporters Rep. Joe Barton, R-Texas, who chairs the House Committee on Energy and Commerce, and Sen. Pete Domenici, R-N.M., who chairs the Senate Energy Committee.
"They are going to turn the knobs until they find an answer they like," says Bob Loux, the chief of the Nevada Agency for Nuclear Projects.
The ruling is just the latest setback for the project, which has been in the works since the 1970s. This February, the Energy Department asked Congress to budget $880 million for the next fiscal year to keep the project on course, but because of miscalculations by the White House and the failure to get a budget amendment to the House floor, only $131 million was approved. Sen. Domenici has vowed to find additional funding, saying the full amount is critical to completing the license application and to continue making plans to transport waste to the site.
And Allen Benson, an Energy Department spokesman, says his agency still plans to file a licensing application with the Nuclear Regulatory Commission in December, with hopes of opening the repository for shipments in 2010.
NRC Commissioner Edward McGaffigan says that even with the radiation standard in question, it’s possible for the Energy Department to file licensing documents and have portions of the application reviewed while safety issues are being ironed out. But, he says, a 2010 opening to accept waste is "not realistic."
"It’s a mess. There is no easy way out of this," says McGaffigan. "There is no magic wand you can wave. It’s an important issue, and these things take time."
The author is a freelance writer living in Las Vegas.
Nevada Agency for Nuclear Projects, 775-687-3744, www.state.nv.us/nucwaste/
U.S. Department of Energy Yucca Mountain Project, 702-794-1322, www.ocrwm.doe.gov/ymp/index.shtml .