The Unsound Science of Yucca Mountain

A Statement on Behalf of Nevada

Joe Egan
April 16, 2002

Thank you for offering Nevada the opportunity to express its views. I'm the lead nuclear attorney on Nevada's legal team. Though I've tried to follow from a distance the science of Yucca Mountain, there is a Nevada man in this room who has followed it in far more depth than I. That man is Steve Frishman, who has worked for Nevada's Agency for Nuclear Projects as a reviewing technician for many years. My job is to take what Steve and his technical colleagues have found and translate it for a three-judge panel in the D.C. Court of Appeals. If you have a real technical question, I may have to refer you to Steve.

Yucca Mountain is in play, as you know, on Capitol Hill. For at least until July of this year, Congress will debate Yucca Mountain issues, in at least three separate Congressional hearings. Pursuant to the Nuclear Waste Policy Act, the Governor of Nevada has issued his Notice of Disapproval of the Yucca Mountain site designation, and Congress now has 90 days of consecutive session to act to override that disapproval by majority vote in both houses.

In Congress, the debate has shaped up to be virtually all NIMBY - that is, those who don't want the nuclear waste in their back yard, but want to put it in Nevada's back yard, battling those who don't want one of the 108,000 shipments going anywhere near their neighborhoods.

Unfortunately, it's hard to find a member of Congress outside the Nevada delegation who seems truly concerned about the science, or the safety, of the site. The science issue really doesn't win votes, and Congress apparently perceives that $7 billion spent over 17 years means the science debate is all but over.

In large part, this is due to the sweeping representations made by Secretary Abraham, and the OCRWM leadership, about the resolute "soundness" of the science at Yucca Mountain. If you believe Secretary Abraham, then the science issue is over. The suitability of the mountain has been determined, and we're left with a few solvable NRC licensing issues.

I suspect many of you scientists know better. I know I do.

Indeed, this assembly appears to be one of the few constituencies left where the "science" of Yucca Mountain may actually matter. And therefore, I would like to remove my attorney's hat for an afternoon and replace it with my old science hat. As many of you know, I was previously a nuclear engineer, and I also hold a degree in Physics. At MIT, where I studied science, there's a term we would have used for the representations made by DOE bureaucrats about the current state of the science at Yucca Mountain. We would have called it "junk." Or possibly just "bunk."

Which is not to sleight the many excellent scientists who have studied Yucca Mountain, and the many excellent scientists from the around the world who have reviewed those studies. On Nevada's behalf, we commend their work, and point instead to the shocking mismatch between what they have actually found and what the DOE bureaucrats have said they've found.

Let's start with a few overriding assertions made recently by the DOE, which have led to some bizarre paradoxes.

First Assertion: Under the law, DOE has determined the Yucca Mountain site to be "suitable" for the disposal of high-level radioactive waste. Under the law, this determination is final, unless a court overturns it. Understand that this is not a statement of "we believe our studies will ultimately conclude the site is suitable." Under the law, DOE has declared that the site IS suitable. Under the law, this means the relevant scientific inquiry is over.

Paradox No. 1: In this room, we all know that the scientific inquiry is decidedly NOT over. DOE certainly knows the scientific inquiry is not over and, in fact, has barely begun in some areas. In the New York Times recently, and in a recent Washington Post Op-Ed by the Secretary, DOE postured that the scientific inquiry will be finished "as we go" over the next 100 to 300 years. NRC pointed to 293 unresolved technical issues in 9 critical areas. The ACNW, the NWTRB, and the IAEA/NEA peer review group have each pointed to gaping holes in the science for Yucca Mountain.

So the science is done, but it is not done.

Second Assertion: Under law, DOE must present, and has represented it will present, the Nuclear Regulatory Commission with a "substantially complete" license application for Yucca Mountain within 90 days of any Congressional override of the Governor's Notice of Disapproval. If such an override occurred in July, this license application would be due as early as this October, and certainly no later than November.

Paradox No. 2: DOE itself has said it will not be ready to file a license application until at least December 2004, more than two years from when it is due. DOE's contractors at Yucca Mountain told the GAO it might be 2005 or 2006 before a license application can be filed. NRC's licensing rule, 10 C.F.R. Part 63, requires that any application filed for Yucca Mountain must be "substantially complete."

So the license application is ready, and it is not ready, on science that is done, but that is not done.

Third Assertion: According to the Secretary, Congress should approve his site designation, because NRC will decide, and is capable of deciding, the site suitability controversy in the context of licensing Yucca Mountain. This was also the view espoused by the New York Times in a recent right-thinking editorial.

Paradox No. 3: Under the Nuclear Waste Policy Act, Congress divided jurisdiction over Yucca Mountain between DOE, EPA, and NRC. DOE was given the job of determining site suitability, EPA the job of setting the primary health and safety standard, and NRC the job of licensing. Under rules now in effect, NRC will not in fact determine site suitability. NRC will simply determine whether an artificial waste package yet to be fully designed by DOE can meet EPA's emission standard for a period of 10,000 years. That is not a site suitability determination.

Fourth Assertion: DOE says the geology of the Yucca Mountain site is "suitable." According to DOE, the repository comprises a "mix" of man-made and geologic barriers. There are no scientific "showstoppers" at Yucca Mountain, says DOE.

Paradox No. 4: Because DOE has attempted to engineer a waste package to isolate radioactive waste for 10,000 years, the duration of the EPA regulatory standard, the geology of Yucca Mountain has been rendered irrelevant. Of course there are no site suitability showstoppers, because the mountain does not matter. As noted recently by the IAEA/NEA peer review group, we're left with a Yucca Mountain project that can perhaps one day demonstrate regulatory compliance, but which has not even attempted to demonstrate long term safety. We're left with a project whose radionuclide emissions will peak thousands of years after the waste packages fail, a project that could be licensed on the beach at Hilton Head, irrespective of long term safety.

So the conclusion is this: NRC will determine site suitability, but it cannot determine site suitability, on an application that is ready, but that is not ready, on science that is done, but that is not done, for a geologic repository that is not geologic.

But please don't take my word for it. I've left you with a number of handouts representing the work of others - real scientists, not lawyers. The first is a summary of an affidavit filed for us by the former head of the Yucca Mountain project, Dr. John Bartlett. The second is a summary of an affidavit filed for us by a former two-term NRC Commissioner and CalTech-trained physicist, Dr. Victor Gilinsky. The third is a bulletized summary of various key findings and conclusions made by principals of the ACNW, the NWTRB, the GAO, and other independent reviewers of the science of Yucca Mountain over the past year or so. The fourth is a summary of the shocking conclusions released recently by the IAEA/NEA peer review group of DOE's total system performance assessment for Yucca Mountain. And lastly, there is a comparison of the findings of the peer review group and the NWTRB with recent statements made in writing by the new Director of OCRWM.

I call your attention particularly to the peer review report, and especially its Appendix 3, which deals with Yucca Mountain hydrogeology, as well as its conclusions about the statistical integrity, or lack thereof, in DOE's models. The essence of this rather long report is painfully simple: We don't yet "have a clue" about the hydrogeology of the saturated zone at Yucca Mountain. We don't even know enough yet to build a model, let alone certify that the model demonstrates site suitability. Though we've tried to demonstrate regulatory compliance for the repository, we haven't yet even attempted an affirmative safety case. The performance models are crude, not state-of-the-art, and commit statistical faux pas equivalent to mixing inches and gallons. Repository performance has unacceptable uncertainty, and cannot be demonstrated with "any degree of realism."

Let me highlight verbatim just a few of the many troubling conclusions from the peer review report:

  • "The saturated zone flow system at Yucca Mountain is very complex and not sufficiently understood to propose a conceptual model for a realistic transport scenario."

  • "The level of understanding of the hydrogeology of the site, based on [USGS] documents, is low, unclear, and insufficient to support an assessment of realistic performance."

  • "DOE's sensitivity study does not give any clues to the important pathways for the water in the system."

  • In DOE's model, "increased ignorance leads to lower expected doses, which does not appear to be a sensible basis for decision-making."

  • The panel "observed that currently there is a very large range of estimated doses based on probabilistic analysis (often extending to four orders of magnitude or more). This large range presents a credibility problem."

  • The panel "observed a tendency for more focus to be given to the demonstration of numerical compliance with the proposed regulatory requirements than on developing and presenting an understanding of repository performance.

I'm still enough of a scientist to find all this to be more than a little disconcerting. Though I'm normally on the industry side of the law, I find myself squarely allied in this case with Nevada. I sought out this job. And I must add, I've had no trouble enlisting other scientists to help Nevada out, as you will soon see if this case goes to NRC.

As a lot, I've found scientists to be a remarkably honest bunch. I don't think you can find a scientist who will stand in front of this body and proclaim the Yucca Mountain site, if it's not altogether irrelevant, is ready to be pronounced "suitable." On the flip side, the number of scientists who have expressed grave reservations about the thoroughness and readiness of the work done so far by DOE is ever growing, their voices growing ever louder.

I submit to you that, notwithstanding the politics, notwithstanding the enormous pressure on the scientific community by government and the industry to push this project along, notwithstanding all the money to be made, the scientists will win in the end. In the end, Yucca Mountain will not serve as this nation's high-level nuclear waste repository. Because you, ladies and gentlemen, will not permit it.

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