Volume 2 Issue 8
December 23, 2004


by Bob Loux

Nevada’s steadfast opposition to the Energy Department’s ill-conceived Yucca Mountain project finally paid off in 2004, much more than most people realize. The biggest thing DOE had going for it was the impression of unstoppable momentum. They violated the law, they mismanaged the project, they distorted the facts, but they kept getting away with it. Lots of people doubted Nevada’s credibility in trying to prevent this federal Goliath from putting the nation’s radioactive waste in the state.

 Well, two recent Nevada legal victories—one in the federal courts and another before a judicial panel of the Nuclear Regulatory Commission—have changed all that.

These well-aimed blows knocked DOE off its feet. The Department had assured its backers for years that it would submit a license application to the NRC by December 2004. After its legal reverses, DOE has now put that date off indefinitely. Now they are the ones with the credibility problem.

The case Nevada won before the NRC concerns the public availability of DOE’s Yucca Mountain documents. In a typical lawsuit, both sides get to “discover” the other side’s documents before trial. Under pressure from the government to speed up the Yucca Mountain hearing, the NRC “streamlined” the procedures by eliminating the “discovery” phase. In return, however, NRC required that DOE submit all its documents—there are millions of them—in electronic form in advance. In fact, the NRC cannot accept a DOE license application until six months after DOE top management certifies that it has submitted its complete database in a readily accessible form.

DOE so certified last June. But a Nevada spot check found that many documents, perhaps millions of them, were missing altogether or in part. The situation was so chaotic and so obviously out of compliance with the NRC rule that after hearing Nevada’s argument, the NRC panel canceled DOE’s document certification. DOE said they’d be back in a month with a corrected database. It is now six months later and they are now saying they will be ready “next spring.” Even so, they wouldn’t be eligible to submit a license application until the end of 2005. Even that date is doubtful because DOE’s database is such a mess.    

The case Nevada won in federal court goes to the gut issue that DOE has been trying to avoid for years—the suitability of the Yucca Mountain geology for a radioactive waste site. There is much more water in the mountain and it moves much faster than DOE realized at the start. This means waste package corrosion is more likely and the leaking waste will reach people faster. DOE’s response has been essentially to claim their “miracle metal” waste containers will resist corrosion, so there is nothing to worry about.

Eventually, the waste containers will leak, of course, and some radioactivity from the waste will get to people. By law, the U.S. Environmental Protection Agency sets the allowed annual limit on the radiation dose to the surrounding population. To get an NRC license, DOE has to show—by running a computer simulation model—that it meets the EPA annual limit on public irradiation.

DOE’s problem was that even its optimistic simulation model showed that once the waste packages fail, the public radiation exposure goes above the EPA limit. EPA helped DOE out here by choosing a duration for compliance (10,000 years) that was less than DOE’s claimed lifetime for its waste containers. That way, DOE would never have to confront the inadequacy of the site when the packages leak. And NRC was going along with this, too.

But this approach violated Congress’s 1992 instructions. Congress had told EPA to follow the advice of the National Academy of Science. The Academy advised EPA to make sure its standard covered the period after the waste packages corroded and released their radioactive contents. That way, you could not ignore the site geology the way EPA’s standard permitted DOE to do. After hearing the arguments, the Court of Appeals (D.C. Circuit) threw out EPA’s standard.

EPA, NRC, and DOE are now scratching their heads about a new standard for licensing. They can’t bring themselves to pick the obvious one recommended by the National Academy of Science because they know DOE can’t meet it. DOE’s desperate last hope is that Congress will save the project by overturning the Court of Appeals decision. It would be an awfully raw act for Congress—putting bureaucratic convenience and sweetheart construction contracts ahead of the public protection it had itself mandated.

After years of fighting DOE’s Yucca Mountain Project, we in Nevada know that we knocked them down. But it’s too early to count them out.  There are too many billions at stake. So we’re getting ready to do it again. I am more and more confident that the project will eventually join other once-supposedly unstoppable DOE projects—like the nuclear airplane, the fast breeder reactor, and the supercollider—in the ashcan of history.



No Time to Lower Standards

When the next Congress returns, we can expect the Department of Energy to make a last-gasp effort to save its Yucca Mountain radioactive waste project by getting Congress to lower the safety bar for licensing. It is vital for public radiation protection, not only in Nevada but also throughout the country, that Congress reject attempts to relax the radiation safety standards to accommodate DOE. If the Yucca Mountain site can’t meet the standard, that’s proof the site is wrong, not that the safety standard is too strict.

The Yucca Mountain standard applies to Nuclear Regulatory Commission licensing to permit building and operating a waste repository at the site. By law DOE has to demonstrate to NRC—by running a computer simulation model—that the radiation dose to people in the area will be below a limit set by the Environmental Protection Agency. The question at issue is: how far into the future does the DOE model have to go to show compliance? On this and other points, Congress had told EPA to follow the recommendation of the National Academy of Science. In 1995, the scientists told EPA to make sure above all that DOE compliance extended beyond the time of peak radiation impact to the surrounding population – which comes after the waste containers corrode and their radioactive contents leaks out.

But such a sensible standard posed problems for DOE because the site geology around Yucca Mountain was poor at containing radioactive leakage. The Department’s calculations showed that after the containers failed, the public radiation dose in the area exceeded the EPA limit. To protect its Yucca Mountain project, DOE didn’t want the safety regulators to look beyond the time waste containers fail. DOE wanted a fixed time limit for compliance, one over which it could argue that its “miracle metal” containers would stay whole and so DOE would never have to confront the inadequacy of the site’s geology. EPA accommodated DOE by choosing a fixed 10,000-year limit, even though the National Academy of Science had previously and specifically rejected this option.

A duration of 10,000 years sounds like a long time, and it is. But it isn’t the specific duration that is most important here, but rather whether or not it has to include the time of peak radiation impact on people. That peak occurs at a time that depends on the assumptions of the computer simulation model, in particular assumptions on waste container corrosion. DOE’s assumption about the longevity of their waste containers, which can only be described as wildly optimistic, led to peak public impact at times much later than 10,000 years. But with more realistic assumptions, the peak public dose would come much earlier, probably well before 10,000 years. The main thing that is wrong with the fixed 10,000-year standard is that it opens the door to DOE manipulation of its model to push the non-compliance problems beyond the 10,000 years. That way, it can rely principally on its container design and more or less ignore the site’s geologic deficiencies. Regrettably, the “independent” safety regulators have shown a willingness to go along with this approach. That was not what Congress intended in legislating a process for developing a geologic repository.

The disparity between Congressional direction and the National Academy’s scientific advice, on the one hand, and EPA’s standard, on the other, could not have been starker. In July 2004, in a suit brought by Nevada, the federal Court of Appeals (D.C. Circuit) threw out the EPA 10,000-year compliance limit because it was completely at odds with the recommendation of the National Academy of Science, on which Congress told EPA to rely.

EPA should now write a new rule. It would be easy to do so — it would only involve changing a few words — but that’s too straightforward. DOE and its allies, emboldened by the recent election results, now want Congress to overturn the court ruling to get back their sweetheart safety standard. They attempted to attach such a rejection of the July 2004 court ruling to legislation during the recent November post-election session, but they failed. They will be back; they said so. Strangely, the Congressional proponents claimed to have White House support for overturning the court’s decision, but a White House spokesman said this wasn’t so. President Bush, he said, was sticking with his pre-election pledge to Nevada to accept the court’s decision. It appears that DOE, although it works for the president, has policies of its own, at least up to now.

It is difficult to believe that in these circumstances Congress would reward DOE’s poor performance and inability to meet the required standard for protecting people around Yucca Mountain by lowering that standard. At the same time, we should not underestimate the forces lined up to defend the project. There is simply too much pork involved in this multi-year, multibillion-dollar project. Everyone who cares about the integrity of federal decision-making in this area should urge Congress to keep its public protection priorities straight.

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