published by WISE/NIRS Nuclear Monitor on January 9, 2004
The long-awaited oral arguments against the proposed national high-level radioactive waste dump targeted at Yucca Mountain, Nevada will take place 14 January before theU.S. Court of Appeals for the Washington, D.C. Circuit – a leading U.S. court for complex administrative law cases, second only to the U.S. Supreme Court. Briefs have already been filed, and the cases have been consolidated. Last August, in an important victory for Yucca opponents, the Court placed the cases in its “complex” docket, giving the judges more time for review and giving the State of Nevada (NV) and environmental group attorneys more time to present arguments against the dump.
(601.5567) NIRS – A coalition of national and Nevada-based environmental groups is challenging the U.S. Environmental Protection Agency’s (EPA) woefully weak radiation regulations for Yucca. Natural Resource Defense Council attorney, Geoff Fettus, will represent the coalition’s case before the three-judge panel. The coalition’s main argument is that EPA’s 18-km (11-mile) radioactive contamination dilution zone in the groundwater surrounding the dump would violate the Safe Drinking Water Act. The aquifer beneath Yucca is used for drinking and irrigation for one of Nevada’s largest and most prosperous farming communities, Amargosa Valley. In addition, Yucca’s groundwater feeds Ash Meadows; a National Wildlife Refuge home to 12 endangered or threatened species, including a desert pupfish species found nowhere else on Earth. (1) “The EPA’s Yucca Mountain rule assumes the proposed repository will leak and inappropriately allows the Department of Energy (DOE) to rely on dilution in order to meet national standards. The agency should not be permitted to misuse its discretionary powers to undermine the Safe Drinking Water Act in this way,” said Fettus. (2)
The groups also seek to overturn EPA’s arbitrary 10,000-year limit on regulatory enforcement. Even the DOE has admitted that burial containers could fail soon after 10,000 years (the State of Nevada has predicted cask failure much more rapidly), and predicts the peak radiation doses to “receptors” (people, that is) downstream would occur 100,000 to 300,000 years after burial. As a group of U.S. Members of Congress commented to EPA before it issued its final rules, to cut off regulation at 10,000 years is to be aware of future dangers but do nothing about them.
NV has a similar groundwater protection lawsuit against EPA, while the industry’s Nuclear Energy Institute has sued EPA’s Yucca standard for being too stringent.
NV has five more major cases: a constitutional case against the U.S. government; a site suitability case against DOE; an environmental case against DOE; a case against the President’s and Energy Secretary’s site recommendations; and a case against the U.S. Nuclear Regulatory Commission’s (NRC) Yucca licensing standards.
NV’s constitutional case argues that under the U.S. Constitution’s 10th Amendment and other provisions, 49 states cannot gang up on a single, politically vulnerable state to impose an unwanted burden without a compelling, rational basis. NV holds that the utter abandonment of criteria for genuine geologic isolation at Yucca negated any such basis, and that the application of one set of repository rules at Yucca while applying a safer set of rules for any other repository site in the U.S. is unfair and illegal. NV seeks to have the July 2002 U.S. House and Senate resolutions overriding NV’s veto of Yucca, ruled unconstitutional, which could kill the dump outright.
NV’s site suitability case argues that DOE’s changing the rules at the very last second violated the Nuclear Waste Policy Act’s (NWPA) requirement that a geologic repository isolate waste from the environment. This requirement for geologic isolation dates back to a 1957 National Academy of Science’s recommendation. A major DOE study in 1980 reaffirmed the importance of such isolation, which became codified by Congress in the 1982 NWPA. The legislative history of that law clearly states that geologic isolation should hold for up to 250,000 years. However a series of DOE tests, from 1996 to 2000, revealed that Yucca’s geology could not provide such containment. In 1996, DOE conducted the first of 17 planned site suitability tests. This test, on groundwater travel time, showed Yucca to be a miserable failure. DOE discovered that in less than 50 years rainwater had percolated down from Yucca’s surface to the depth of the proposee much more difficult to obtain.
NV’s environmental case argues that DOE has egregiously violated the National Environmental Policy Act, by failing to answer even basic questions about the proposed dump design and transport plan. NV seeks to force DOE back to the drawing board on its Yucca Environmental Impact Statement, which would cause major delays.
NV’s case against the presidential, DOE, and congressional site recommendations holds that those decisions were based on flawed, incomplete, and illegal analyses and rules as described above (George W. Bush was supposed to review 20 years worth of scientific studies and public comments, but rubberstamped DOE’s site recommendation in less than 24 hours!). (3) The remedy would be for the court to nullify those recommendations and require DOE to complete the site characterization in a legal manner. NV also argues that NRC’s Yucca licensing rules violate the NWPA and Atomic Energy Act because: the 10,000 year regulatory cut-off would not protect Nevadans from Yucca’s peak doses; no minimum requirements for geologic suitability are established; defense-in-depth through application of “multiple barriers” (both natural geology and engineering) is not required.
The court could rule on individual cases or on the overall consolidated case as early as mid-2004. Certain rulings could kill the Yucca dump once and for all, or could cause major delays for the project if more stringent regulations are required of the federal agencies involved.
If not blocked by the court, DOE has announced it will file its application to NRC for a construction/operating license by the end of 2004 (although the NWPA required DOE to have submitted its application by October 23, 2002!). (4) The court’s rulings could cause major delays to DOE’s application, or could require that much stronger rules be applied to Yucca’s NRC licensing proceeding. NV, NIRS, and other governmental agencies and non-governmental organizations are gearing up to challenge the NRC licensing process at every turn on procedural, technical, and safety grounds. The licensing proceeding would last three to four years, with hearings in Nevada and perhaps also Washington, D.C. Already, the electronic docket for NRC’s Yucca licensing is a whopping 42 million pages long! (5)
(1) National Wildlife Refuge exhibit at the Smithsonian Institution Museum of Natural History, Washington, D.C., December 2003.
(2) A map revealing EPA’s blatant gerrymandering of the compliane boundary in the direction of groundwater flow can be found under “Fact Sheets” athttp://www.citizen.org/cmep/energy_enviro_nuclear/nuclear_waste/hi-level/_eparad_/
(3) DOE Secretary Abraham recommended Yucca’s suitability to Bush on 14 February 2002, submitting a 1 m (3 ft) thick document weighing over 30 kg (67 lbs.) for White House review. Bush’s approval came on 15 February.
(4) Bush endorsed the congressional override of NV’s veto on 23 July 2002. The NWPA required DOE to submit its license application by 90 days later. DOE ignored the deadline.
(5) These summaries of the legal cases comes from “Nevada’s Yucca Mountain Lawsuits” and a press briefing presented by the State of Nevada Agency for Nuclear Project’s legal team at the National Press Club in Washington, D.C. on 18 December 2003. Seehttp://www.state.nv.us/nucwaste/policy.htm for more information.
Kevin Kamps at NIRS
NWTRB CHAIR RESIGNS
Michael Corradini, appointed June 2002 by George W. Bush to head the scientific and engineering panel (Nuclear Waste Technical Review Board) established by Congress to oversee Department of Energy technical work at Yucca Mountain, resigned on 30 December amidst on-going allegations of bias in favor of opening the dump and protests from Yucca opponents. Before his appointment to NWTRB he testified before a Senate Panel in 2001 that he endorsed the Yucca project and called waste disposal more a political problem than a technical one. Furthermore, Corradini’s previous association with a DOE laboratory and DOE’s Nuclear Energy Research Advisory Committee, and other public statements created a conflict of interest. Shortly after his appointment to the NWTRB, a University of Wisconsin department (which Corradini chairs) received a nuclear engineering grant from DOE.
NuclearFuel, 5 January 2004
On 23 December, DOE announced Caliente as the preferred gateway into Nevada (NV) for high-level radioactive waste trains. A 300 mile long railway through environmentally sensitive areas (including endangered desert tortoise habitat) would be built across four mountain ranges to avoid the populous Las Vegas Valley, the NV nuclear weapons test site, as well as a very active U.S. Air Force bombing range. DOE puts the cost at US$ 880 million, but NV predicts that as the largest rail construction project in the U.S. since World War II, it will cost US$ 2.3 billion.
Las Vegas Review-Journal, 24 and 30 December 2003