updated 7/9/2004 3:06:44 PM ET 2004-07-09T19:06:44

A federal appeals court on Friday rejected Nevada’s arguments against building a nuclear waste site in the state, but ordered the U.S. government to develop a plan to protect the public against radiation releases beyond the proposed 10,000 years.

The three-judge panel dismissed claims by Nevada that the Bush administration’s plan to build the Yucca Mountain waste site was unconstitutional and said that actions by the Energy Department and President Bush leading up to approval of the waste site were not subject to review by the court.

In a victory for Nevada, however, the court rejected the government standard that the public would have to be protected from radiation leaks only for 10,000 years. It said the compliance period for the radiation standards would have to be developed well beyond that period.

“The Yucca Mountain site cannot meet the (radiation) standard” beyond 10,000 years, said Bob Loux, Nevada’s state nuclear project director. He called the Yucca project “effectively dead — over.”

Energy Secretary Spencer Abraham said he was pleased by the court’s decision which, he said, “dismissed all challenges to the site selection” process for Yucca Mountain. He said the department would work with EPA and Congress to address the court’s problems with the radiation standard, rejecting suggestions that issue would endanger the project.

Another Energy Department source, speaking on condition of anonymity, said however that addressing the 10,000-year issue might delay the project because Congress might have to address the issue.

Appeal expected
The 100-page decision by the three-judge panel of the U.S. Court of Appeals for the District of Columbia was also a major blow to Nevada’s attempt to block construction of the repository planned for 90 miles northwest of Las Vegas.

Nevada had argued that the process by which Yucca Mountain was selected as the only site to be studied for a possible waste site was unconstitutional. It also challenged a Nuclear Regulatory Commission rule on procedures for considering Yucca Mountain as in violation of the federal nuclear waste law.

Yucca MountainThe state was likely to appeal the decision and also has vowed to continue fighting the case before the Nuclear Regulatory Commission, which must issued a permit for the facility. The site is planned to store underground 77,000 tons of highly radioactive waste, mostly spent reactor fuel from commercial power plants.

Congress approved the Yucca Mountain site in 2002, overriding an attempt by Nevada to block the project.

While rejecting the heart of Nevada’s arguments, the appeals court upheld arguments by environmentalists that the Environmental Protection Agency requirements for safeguarding the environment from radiation were inadequate and would have to be strengthened.

The court said that the EPA’s standard calling for protection from radiation up to 10,000 years “is not based or consistent with the recommendations of the National Academy of Sciences,” which had concluded that the danger to the public goes years beyond that.

Academy of Sciences report cited
In arguments in January, lawyers for the Natural Resources Defense Council, which had challenged the EPA standard, argued that many of the isotopes in the waste would reach their peak radiation levels and be most dangerous up to 300,000 years into the future.

The National Academy of Sciences had reached a similar conclusion in an examination of the standard. The court noted that the EPA’s own policy required that the radiation standard must be consistent with the National Academy of Sciences conclusions.

“We’re absolutely thrilled,” said Geoffrey Fettus, an attorney for the Natural Resources Defense Council.

While Congress directed that the EPA make its radiation standard for future human exposure “consistent” with the NAS findings, “the EPA wholly rejected the Academy’s recommendations,” wrote the judges.

It said the EPA must either issue a revised standard consistent with the NAS findings or get Congress to give it authority to deviate from the NAS recommendations.

The Energy Department plans to submit an application for an NRC license later this year, a process that could take three years or more. A recent controversy over Yucca Mountain funding in Congress also has put the 2010 target date for opening the facility into jeopardy.

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