The Nevada Appeal

Nevada still has lots of bullets in Yucca fight

May 12, 2002

BY BOB LOUX
For the Appeal

Hindsight, as the saying goes, is always 20-20. That was certainly demonstrated in Kirk Caraway's opinion piece ("Yucca Mountain fight was lost two years ago"). What Mr. Caraway failed to grasp is the fact that the political fight over locating a nuclear waste repository in Nevada is only the opening skirmish in a much larger battle.

While DOE and the federal government have always had home court advantage in the political arena -- the 1982 federal law and its 1987 amendments were designed to make it nearly impossible for Nevada (or any other repository host state) to prevail in Congress -- the next rounds in the contest will be played out in the legal and technical arenas, where the advantage will be Nevada's.

DOE's decision to recommend Yucca Mountain as a repository has been a foregone conclusion almost from the beginning -- certainly since the passage of the 1987 amendments to the Nuclear Waste Policy Act, which singled out the Nevada site as the only one to be "studied." No one expected DOE to come to any other conclusion, regardless of the facts or the serious deficiencies present at the site. This has been a mission-driven program all along, with DOE's mission being to do whatever is necessary to move the project along politically.

The only reason Nevada is in the congressional game at all is because the framers of the original law never considered the possibility that small, insignificant Nevada would have a member of its delegation serving as assistant majority leader in the U.S. Senate at the very time Congress is with attempting to override the state's veto of the project by a majority vote in both chambers. Winning in the Senate would certainly be a welcome victory for Nevada, but a loss there is by no means the end of the battle -- it is really just the beginning.

Even with the deck stacked strongly -- overwhelmingly -- in their favor, DOE and the commercial nuclear power industry are having to pull out all the stops to try to override Gov. Kenny Guinn's notice of disapproval. The fact the outcome remains in doubt in the Senate is a tribute to the strength of Nevada's arguments that the site is unsafe and transportation of deadly spent fuel and high-level radioactive waste presents a clear and present danger to millions of Americans along the nation's highways and railroads. It is also a testament to the hard work and unrelenting opposition to this dangerous and ill-conceived program on the part of Gov. Guinn, Sen. Harry Reid, Sen. John Ensign, Rep. Shelly Berkeley, Rep. Jim Gibbons, and virtually every other elected official in the state.

Make no mistake about it, as difficult and contentious a time as they are having in the political arena, this is by far the easy part of the fight for DOE and the nuclear power industry. Yucca Mountain proponents have always had natural allies and a generally friendly audience in Congress, where many members have nuclear power plants in or near their states and districts and where the "anywhere-but-my-state" attitude dominates. It's been a relatively easy sell. Even so, DOE and the industry have had to resort to fear mongering and factual misrepresentations with respect to the suitability of the Nevada site and the transportation of waste to keep their troops in line.

The hard part for DOE and the industry comes when and if the Senate overrides Gov. Guinn's veto. That's when the playing field shifts to the courts and to the technical arena, where DOE will, for the first time ever, be forced to defend a program that is in clear violation of the Nuclear Waste Policy Act, the National Environmental Policy Act, and the department's own regulations governing how the suitability of the Yucca Mountain site should been evaluated.

Unlike the political process, where the rules are stacked in DOE's favor and where DOE never had to address, much less answer, the hard questions, DOE will be held accountable for its conclusions and decisions in the legal and technical arenas.

Nevada has been preparing for the legal and technical battle for almost two decades. The state intends to challenge the Yucca Mountain project on every front and in all forums. DOE, for the first time, is going to face hard hitting and unrelenting cross examination about how it arbitrarily turned away from the concept of geologic disposal when it became apparent that Yucca Mountain was incapable of isolating the waste and transformed the federal program into one relying solely on man-made, engineered systems -- in clear violation of the law.

The state has put together strong and compelling legal cases challenging DOE's site recommendation process, the U.S. Environmental Protection Agency's gerrymandered radiation health protection regulations, DOE site evaluation guidelines that were revised to mask Yucca Mountain's deficiencies, the U.S. Nuclear Regulatory Commission's illegal revision of the licensing regulations governing licensing of a repository at Yucca Mountain, and the constitutionality of the heavy-handed Yucca Mountain program itself.

In addition to the legal challenges, Nevada is fully prepared to contest any application DOE might make to the NRC for a license to construct and operate a repository at Yucca Mountain -another hurdle DOE must clear before any waste can be shipped there. As in the courts, NRC licensing is an adjudicatory proceeding where DOE will be forced to defend it shoddy and politically-driven science at Yucca Mountain. The state has assembled a first-rate team of licensing attorneys and technical experts to represent Nevada in these proceedings who will see to it that the real facts regarding Yucca Mountain's unsuitability as a geologic repository prevail.

In both the legal and technical forums, DOE is going to find that defending its actions under oath and under cross examination by the premier legal and technical experts in the country is a far cry from pulling the wool over the eyes of willing and complicit members of Congress.

Governor Guinn has vowed that, win or lose in Congress, Nevada will continue the fight to assure that Yucca Mountain is defeated. The battle over Yucca Mountain is just beginning, and it is in the in the legal and technical arenas that Nevada will, ultimately, prevail.

Bob Loux is the executive director of the Governor's Agency for Nuclear Project. He lute been directly involved with Nevada's oversight of the Yucca Mountain program since 1982.