Court Rejects Yucca Mtn. 10,000 Year Radioactive Safety Limit

WASHINGTON, DC, July 12, 2004 (ENS) - Both sides are claiming victory after the U.S. Court of Appeals for the District of Columbia Circuit handed down its ruling Friday on challenges to the Yucca Mountain nuclear waste repository. The 10,000 year federal safety requirement for the highly radioactive waste is illegal, the court ruled, because it is inconsistent with the recommendations of the National Academy of Sciences. But the court rejected Nevada's constitutional challenge to the repository.

The repository site, located 100 miles northwest of Las Vegas, Nevada on the edge of the Nevada Nuclear Test Site, was approved by Congress and President George W. Bush in 2002.

Ruling in a group of consolidated cases, the appellate court rejected all but one of the legal challenges raised by the state of Nevada, including a constitutional challenge.

Yucca Mountain, Nevada is the location of the nation's high-level nuclear waste geologic repository. (Photo courtesy DOE)

The industry association, the Nuclear Energy Institute, argued that the Yucca Mountain project is scientifically sound and is needed for the safety and security of the nation.

The appeals panel ruled illegal the 10,000 year compliance period for ensuring that radiation would not escape from the repository. The judges said the 10,000 year period selected by the EPA violates the Energy Policy Act because it is not "based upon and consistent with" the findings and recommendations of the National Academy of Sciences.

But the court supported the Nuclear Regulatory Commission’s licensing requirements and ruled that they "are neither unlawful nor arbitrary and capricious except to the extent that they incorporate EPA’s 10,000-year compliance period."

The appeals judges rejected Nevada's argument that the actions of the Energy Department and the President in selecting and approving Yucca Mountain were unconstitutional.

"The congressional resolution selecting the Yucca site for development represents an appropriate exercise of Congress’s Article IV, section 3 authority over federal property," the court decided.

"The Department of Energy’s and the President’s actions leading to the selection of the Yucca Mountain site are unreviewable," the judges said.

The Energy Department's Office of Civilian Radioactive Waste Management is experimenting with new robotic technologies at Yucca Mountain. Here, a robot rolls across the floor of the underground laboratory inside Yucca Mountain. (Photo courtesy DOE)

"While the Court did not question the scientific validity of the Environmental Protection Agency’s standards, it did vacate one aspect of the standard, the 10,000 year compliance period," Abraham said. "Therefore, DOE will be working with the EPA and Congress to determine appropriate steps to address this issue."

Still, Nevada Senator John Ensign, a Republican, claimed victory on behalf of Nevada's Congressional delegation, all of whom are opposed to Yucca Mountain, Democrats and Republicans alike. "Today’s court ruling provides Nevada a crucial legal tool to defeat the Yucca Mountain project once and for all," Ensign said at a press conference.

"Our state’s legal team should be congratulated for this victory against all those forces that would like to turn Nevada into the country’s nuclear dumping ground. Our united effort, in which Nevadans of all political affiliations joined, is the reason for this victory and our celebration today," Ensign said.

Nevada Senator Harry Reid, a Democrat, said the court's ruling dealt a death blow to the Yucca Mountain repository. "I’ve never believed Yucca Mountain would open, and today it could not be more clear that’s true. The court’s ruling is a significant blow to the Department of Energy and the Yucca Mountain project and I believe enough to effectively kill the project."

"There is a reason we have fought this project for more than two decades," said Reid. "It is impossible to open this kind of nuclear waste repository and still guarantee the health and safety of Nevadans."

The environmental organization Natural Resources Defense Council said the court ruled in favor of environmental groups and the state of Nevada, finding that the Environmental Protection Agency illegally issued inadequate environmental and public health standards for Yucca Mountain.

"On one of the most crucial issues in the Yucca case, the court has sent EPA back to the drawing board to write a radiation protection standard that safeguards public health," said Geoff Fettus, the NRDC attorney that argued the case for the environmental groups - Citizen Action Coalition of Indiana, Citizen Alert, Nevada Desert Experience, Nevada Nuclear Waste Task Force, Nuclear Information and Resource Service, and Public Citizen.

Heater element installation for thermal testing underground at Yucca Mountain, April 2001. (Photo courtesy DOE)

But for the industry, Nuclear Energy Institute’s Executive Vice President Angie Howard also claimed victory. "Congress’ 2002 endorsement of the Yucca Mountain site and the Department of Energy’s work at the site are unaffected by this ruling," he said. "The court held that this important environmental protection program can go forward as planned. The one exception in the court ruling should not impede work at the repository."

"Work at the site and on the Energy Department’s upcoming license application for the repository, scheduled to be submitted to the NRC this December, should be allowed to continue under existing regulations," Howard said. "The reason is that the NRC is not scheduled to decide whether to issue a construction license for the state-of-the-art repository until 2007 or 2008."

The court suggested two possible options for dealing with the 10,000 year compliance period. First, the Environmental Protection Agency and the Nuclear Regulatory Commission could revise their regulations to extend the compliance period beyond 10,000 years.

Second, the judges suggested that the EPA might ask Congress to intervene and pass legislation giving agencies permission to maintain the 10,000 year standard.

Saying that the court's validates the industry's belief that the overall decisionmaking process for Yucca Mountain project "rests on sound scientific ground," Howard said the repository is environmentally and economically beneficial to the country.

"Safe isolation of used nuclear fuel in a centralized location allows the nation to continue to rely on nuclear energy, which provides electricity to one of every five U.S. homes and businesses, as a vital part of a diverse energy portfolio at a time when there is tremendous turmoil and volatility with regard to other energy sources,” Howard said.

But Nevada Governor Kenny Guinn, a Republican, sees the appellate court's ruling as a vindication for the state. "This is an important victory for the State of Nevada and a major setback for the Department of Energy’s effort to place nuclear waste in our state," he said.

He said the decision reinforces what the state of Nevada has said all along, "that the science used by the Department of Energy is not sound nor is it safe, and that the 10,000 year standard used by the Environmental Protection Agency is woefully inadequate and is inconsistent with the Congressionally mandated recommendations of the National Academy of Sciences."

"I truly believe Nevadans can sleep more peacefully tonight, confident in the knowledge that there is recognition in our courts that the EPA deliberately rejected the sound advice of the scientific community and adopted a standard that runs contrary to the health, safety and well-being of the citizens of Nevada," the governor said.

Yucca Mountain has been under review for years. Here members of the Nuclear Waste Technical Review Board visit Trench 14 in June 1989. (Photo courtesy DOE)

The federal government considers that the waste will be safer consolidated in one repository. With more than 100 interim storage locations sprinkled across 39 states, over 161 million people reside within 75 miles of a nuclear waste storage facility.

Current plans call for the waste to be moved by road and rail from its current locations to Yucca Mountain, a process that could take as long as 18 years.

But many panels, including the Nuclear Waste Technical Review Board as well as the National Academy of Sciences, have expressed doubts about the safety of the waste once it is entombed in Yucca Mountain.

In its ruling, the court acknowledged, "Radioactive waste and its harmful consequences persist for time spans seemingly beyond human comprehension. For example, iodine-129, one of the radionuclides expected to be buried at Yucca Mountain, has a half-life of seventeen million years."

"Neptunium-237, also expected to be deposited in Yucca Mountain, has a half-life of over two million years," the court wrote.

As of 2003, nuclear reactors in the United States had generated approximately 49,000 metric tons of spent nuclear fuel. By the year 2035, the United States will have produced 105,000 metric tons of nuclear waste – approximately twice the current amount.

The court's ruling could set the Yucca Mountain project back for an indefinite period of time while federal agencies go back to Congress, pursue new legal appeals, possibly to the Supreme Court, or change their rules to satisfy the court.

The Energy Department plans to apply to the Nuclear Regulatory Commission for a license to construct and operate Yucca Mountain. Approximately 1.2 million documents totaling some 5.6 million pages related to the license application are searchable online at: http://www.ocrwm.doe.gov, and will be available through the NRC's website at: http://www.lsnnet.gov.