The Honorable Spencer Abraham
United States Department of Energy
1000 Independence Avenue S.W.
Washington, D.C. 20555
RE: Requests for Postponement of the Secretary's Yucca Mountain Site Recommendation and an Immediate Stay of DOE's New Site Suitability Guidelines, 10 CFR Part 963, Pending Judicial Review
Dear Secretary Abraham:
It is with the utmost urgency that we write concerning your apparently imminent Yucca Mountain Site Recommendation, to be made in reliance on the Department's new Site Suitability Guidelines, 10 CFR Part 963, which take effect on December 14, 2001. Insofar as the new guidelines permit a suitability determination to be made for literally any site in the world, they are scientifically specious and blatantly violative of the Nuclear Waste Policy Act, which sought to develop a viable geologic repository and not simply a glorified waste package whose setting could be gauged "suitable" even if sited on the shores of Lake Tahoe.
Accordingly, Nevada intends to seek judicial review of the new rules immediately upon their taking effect. Because any site recommendation you may make at this time would necessarily be based on putative "site" suitability guidelines that are neither legally nor scientifically sound, we ask you to postpone your recommendation until after the Court of Appeals has had the chance to review the guidelines. In this request, we join ranks with the General Accounting Office, whose recent review of the Department's Yucca Mountain program concluded that "DOE is not ready to make a site recommendation," and that any such recommendation should be deferred pending the completion of numerous key scientific studies.
Moreover, since the new guidelines would form the technical and legal basis for the Department's further review of Yucca Mountain, we ask you to stay immediately their date of effectiveness pending judicial review. The Department should not be evaluating the suitability of the site based on rules that were transparently reconfigured at the eleventh hour because DOE could not meet the statutory demands of Congress nor the scientific recommendations of the National Academy of Sciences, NRC's Advisory Committee on Nuclear Waste, and the Yucca Mountain Technical Review Board.
Nevada's attorneys have engaged Dr. Victor Gilinsky, a former NRC Commissioner and an eminent Caltech-trained physicist, to review DOE's new guidelines from the standpoint of someone who was there at the time the Nuclear Waste Policy Act was enacted, and whose agency concurred in DOE's original Site Suitability Guidelines, 10 CFR Part 960. An affidavit from him in support of our requests is enclosed.
As Dr. Gilinsky notes, NRC concurred in the original guidelines only on condition DOE add requirements that engineered barriers would never be used to compensate for poor site geology. The notion that geologic features must be the "primary form of containment" is not only explicitly required by the Act, but was always understood by NRC and DOE, he asserts, to be the primary objective of the Act, until DOE recently and conveniently changed its interpretation to suit its licensing and litigation needs. We now know, as a result of DOE's own site characterization activities, that engineered barriers make up nearly 100-percent of the isolation of the integrated "repository system." As Dr. Gilinsky concludes, this hardly makes the Yucca Mountain site a suitable geologic container for the hundreds of thousands of years it will take for the leaching wastes to reach their peak dose levels.
On the heels of the GAO report, the Inspector General's determination that DOE's licensing attorneys have had an irreconcilable conflict of interest, and sweeping indictments by independent technical reviewers such as NAS, ACNW, NWTRB, and Physics Today that vast uncertainties remain in DOE's analysis of Yucca Mountain, it would be inappropriate and ill-advised to proceed with a site recommendation at this time.
President George W. Bush assured Nevada that any determination of Yucca Mountain's suitability as a geologic repository would be based solely on the scientific merits. On that front, Dr. Gilinsky's affidavit, the independent reviewers, and DOE's own studies show that Yucca Mountain has utterly failed the test.
Please let us know by no later than Friday, December 14, whether you intend to stay the effectiveness of the Part 963 guidelines and/or postpone your site recommendation to a legally and scientifically appropriate time.