In the hours after the US Court of Appeals for the District of Columbia rendered its 9 July decision on the future of the Yucca Mountain nuclear waste facility, all sides in the case were declaring victory. At the Department of Energy, Secretary Spencer Abraham said he was “pleased” with the decision and noted that the court “dismissed all challenges to the site selection of Yucca Mountain. Our scientific basis for the … project is sound.”
Out in Nevada, where Yucca Mountain is located, State Attorney General Brian Sandoval all but pronounced the project dead, saying, “Simply put, Yucca is stopped in its tracks because the court recognizes that the project isn’t rooted in sound science. We wouldn’t trade places with the opposition.” Sandoval was referring to the court’s ruling that the US Environmental Protection Agency’s (EPA’s) 10 000-year safety standard for the facility doesn’t follow the 1992 Energy Policy Act.
Back in Washington, DC, the Nuclear Energy Institute (NEI), the organization that represents the nuclear industry, was expressing confidence that DOE would be able to meet the “eventual standard” of radiation safety for Yucca and that “the licensing process for the repository will continue without interruption or delay.” NEI added that the “scientific basis for the facility … is still sound today.”
So the science is sound or it isn’t, depending on whether you are in favor of or opposed to the federal government’s plans to move some 77 000 tons of high-level radioactive waste into the mountain, beginning in 2010. Most of the waste is now sitting in pools and dry-storage casks at more than 100 interim storage sites in 39 states.
The nuclear industry would like to see the waste go to Yucca Mountain, and so would DOE and the Bush administration. Democratic presidential candidate John Kerry would like to shut down the Yucca Mountain project, as would most local, state, and federal politicians from Nevada.
What exactly did the court rule, and what does that ruling mean for Yucca Mountain’s prospects? The court consolidated 12 lawsuits against Yucca into one case, and then dismissed all challenges to the project—except one. The court ruled that the EPA “unabashedly rejected” earlier findings by the National Academy of Sciences (NAS) that said “some potentially important exposures [to radiation] might not occur until after several hundred thousand years.”
The academy, in a 1995 report, said that the radiation standard for the facility should be measured at “the time of peak risk, whenever it occurs.” That could be on the order of a million years, the academy noted.
In passing the 1992 Energy Policy Act, Congress required the EPA to set standards for Yucca Mountain consistent with the time frame for radiation risks as determined by the NAS. The EPA, according to the court, intentionally disregarded the NAS peak-dose standard as, quoting from an EPA regulation, “not practical for regulatory decision making.” Instead, the EPA settled on a 10 000-year standard based on “policy considerations,” the court said.
The court concluded that the EPA must either issue a revised standard that is “consistent with” the NAS peak-dose standard “or return to Congress and seek legislative authority to deviate from the NAS report.”
“It was Congress that required the EPA to rely on NAS’s expert scientific judgment,” the court decision said, “and given the serious risks nuclear waste disposal poses for the health and welfare of the American people, it is up to Congress—not EPA and not this court—to authorize departures from the prevailing statutory scheme.”
DOE, as the owner of Yucca Mountain, was expected to challenge the ruling, but the three-judge appeals panel was unanimous, and several congressional observers said the assumption on Capitol Hill is that the ruling will stand. If the court ruling does stand, the solution lies in Congress’s changing the law to be consistent with the 10 000-year standard the EPA is using. None of the parties involved is advocating a radiation standard based on containment for hundreds of thousands of years or more.
Not an easy vote
“This is a real problem that the advocates don’t know how to get around,” said a congressional staff member who follows the issue. “The way around it is passing a law that says it’s okay to use the 10 000-year standard, but that’s not going to be an easy vote up here.”
One of Yucca Mountain’s chief advocates, Senator Pete Domenici (R-NM), said that if the decision stands, “the ramifications are enormous. It may go well beyond Yucca. It may be the end of the nuclear industry.”
But with Kerry on record against the project, and Nevada lawmakers in both the House and Senate opposed to the Yucca Mountain repository, the odds of passing a relaxed radiation standard are not high. That is especially true in an election year when Nevada is considered a swing state in play for both Democrats and Republicans.
The problems relating to Yucca Mountain are not limited to the court ruling. A budgeting disagreement between the White House and Representative David Hobson (R-OH), chairman of the energy and water subcommittee of the House Committee on Appropriations, has resulted in a drastic cut in the fiscal year 2005 budget for Yucca Mountain.
The administration wants $880 million for the facility in FY 2005, but to keep the overall budget numbers down, it submitted a budget request of only $131 million. The Office of Management and Budget (OMB) proposed that the remaining $749 million should come from fees paid into the nuclear waste fund—a multibillion-dollar fund contributed by the nuclear industry over many years to cover the cost of storing radioactive waste.
The dispute arose because the nuclear waste fund exists only on paper. The money that the nuclear industry pays goes into the general fund and is not set aside for radioactive waste costs. So the OMB proposal to “reclassify” nuclear waste fees so they could be used for Yucca Mountain means $749 million would be taken from the general treasury. Thus far, Congress has balked.
“OMB played Russian roulette when they assumed the House and Senate would pass the proposed reclassification language,” Hobson said. Other lawmakers described the OMB plan as “muddled” and a “budget gimmick.” Legislation has been introduced to authorize the OMB reclassification, but its prospects are uncertain. Should the House reverse course and authorize $880 million for Yucca Mountain, the prospects for quick action—or any action—in the Senate prior to the presidential election are not good.
Congressional staff members and other observers expect that a continuing resolution will be passed to keep funding Yucca Mountain at FY 2004 levels until both the court case and funding dispute can be resolved.
