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Court hears case over nuclear waste

Nevada argued before a federal court Wednesday that the U.S. government has failed to ensure that the public will be protected from a planned nuclear waste repository in the state.
/ Source: The Associated Press

Opponents of a planned nuclear waste dump in Nevada argued in court Wednesday the U.S. government has failed to ensure that the public will be protected when radiation from the entombed waste reaches its peak hundreds of thousands of years from now.

Attorneys for Nevada and an environmental group asked a three-judge panel to reject the Bush administration’s plan for storing highly radioactive waste at Yucca Mountain in the Nevada desert unless it can be shown protective radiation standards can be met at least 300,000 years into the future, when some of the isotopes are most dangerous.

The arguments before the federal appeals court represent a last-ditch effort by Nevada and other opponents of the Yucca repository to keep 77,000 tons of nuclear waste from being shipped to Nevada for burial. The waste is building up at commercial reactors around the country.

Year-end decision expected
The three-judge panel of the U.S. Court of Appeals was expected to make a decision on the Yucca project later this year. The arguments, during a three-hour session, revolved around both constitutional issues and complicated scientific questions.

“All of the legal wrongs ... stem from the fact that the waste will not be isolated,” Geoffrey Fettus, an attorney for the Natural Resources Defense Council, told the court.

Fettus and Antonio Rossman, an attorney representing Nevada, argued that an Environmental Protection Agency radiation standard for the proposed waste site that is pegged to 10,000 years into the future is inadequate.

“The maximum risk arises at 300,000 years,” argued Rossman.

Two of the three judges sharply questioned why the EPA chose the 10,000-year mark and noted that a National Academies of Science report suggests a danger long beyond that.

The NAS report is “absolutely clear ... that 10,000 years is incorrect,” Judge Harry Edwards told a Justice Department attorney.

Edwards and Judge David Tatel repeatedly asked the government attorney why the EPA rejected the NAS recommendation when, they said, that Congress specifically required the NAS findings to be taken into account.

“An agency does not have the authority to do whatever it wants to,” Edwards said.

Radiation timing is key
Christopher Vaden, representing the Justice Department, said the EPA selected the 10,000-year mark for its radiation exposure standard because of policy considerations as well as scientific issues.

The question of time is important because the reliance on engineered barriers to isolate waste at the site would not be possible 300,000 years into the future. Nevada officials have argued that Congress required the project to depend on geology to keep the waste isolated. But the government has proposed a plan that requires both geology and man-made barriers to do the job.

Nevada’s legal team is pinning its case on two central themes: That singling out the state violated its rights under the U.S. Constitution and that the Energy Department illegally abandoned a requirement that the site’s geology must be shown to contain the waste for more than 10,000 years without relying on engineered barriers.

The court “is the state’s best chance” to prevail, says Bob Loux, who heads Nevada’s Yucca mountain project office and has advised a succession of Nevada governors on the issue over the years.

The court has consolidated 13 separate lawsuits, including nine filed by the state or other Nevada jurisdictions. It also has scheduled arguments on issues from the adequacy of federal radiation standards to the constitutional issues surrounding the decision to push the waste site on a small, politically vulnerable state.

“This is the first time that any court in this country is really going to look at the fundamental legal merits of this project,” said Joe Egan, the lead attorney for Nevada.

$58 billion cost
Energy Department spokesman Joe Davis said the legal fight will not interrupt the department’s plans to continue developing a detailed application for construction and operating permits with the Nuclear Regulatory Commission.

The Yucca Mountain site is located 90 miles northwest of Law Vegas. It is expected to cost $58 billion, and — if the government prevails — it will be open for initial shipments in 2010.

In 1987, with politicians nervous about the prospect of a nuclear waste site in their state, Congress declared Yucca Mountain would be the only site studied further.

Last year, President Bush declared that Yucca Mountain was a suitable site. An attempt by Nevada to short circuit the decision was turned back by Congress, which reaffirmed Bush’s decision five months later.

The nuclear energy industry also is suing the government, saying it missed a 1998 deadline for finding a place to store the spent fuel accumulating at 103 commercial reactors and various industrial and military sites around the country.