Yucca Mountain Update -- A Publication of the State of Nevada Nuclear Projects Agency

Volume 1 Issue 1 - December 4, 2002





- Welcome to Yucca Mountain Update
- Nevada Fires Opening Salvo Over Yucca Mountain Repository
- DOE's Broken Promises in New Mexico Fuel Nevada's Skepticism

Welcome to Yucca Mountain Update
Although the political battle over the Yucca Mountain high-level nuclear waste repository ended in July, Nevada’s legal fight continues – with the ultimate goal of derailing the scientifically- and legally-challenged project.

With that in mind, Nevada's Nuclear Projects Agency presents Yucca Mountain Update, a newsletter geared at providing readers with the latest, most up-to-date information about the State’s legal challenges against Yucca Mountain.  We’ll also highlight previous transgressions and missteps by the Department of Energy and the Nuclear Regulatory Commission not only in Nevada, but throughout the country.

Nevada Fires Opening Salvo Over Yucca Mountain Repository
Nevada Attorney General Frankie Sue Del Papa, joined by Clark County and Las Vegas officials, today presented to the Court of Appeals in Washington, D.C., their “case in chief” against President Bush and the U.S. Department of Energy (DOE) concerning the Yucca Mountain nuclear waste repository.  

The 100-page document details the state’s claims that the DOE ignored the statutory requirements of the Nuclear Waste Policy Act and the National Environmental Policy Act in recommending a site that could no longer demonstrate any ability to geologically isolate radioactive waste. 

“Any person who continues to believe that this repository is not in serious legal trouble has simply not read this brief,” Del Papa said.  “I believe we’re going to bring the house of cards down – and sooner than most people think.” 

Nevada has brought three claims in connection with DOE’s determination of Yucca site suitability, and several claims in connection with the project’s Final Environmental Impact Statement, which the state called “the most glaring attempted evasion of federal environmental review responsibilities in the 31 years since the Supreme Court heard the first such case in 1971.” 

Nevada is arguing that, upon discovering in the late 1990s that the site was scientifically disqualified under the waste statute and DOE’s siting guidelines, the DOE jettisoned its rules and crafted new rules to jawbone the site into conforming with the Nuclear Regulatory Commission’s licensing requirements. 

In doing so, DOE altogether abandoned mandatory site characterization requirements for Yucca and stopped studying the mountain. 

Nevada also is claiming that the DOE failed to prepare and publish a mandatory Record of Decision; failed to define the project in accordance with law; unlawfully deferred transportation analysis; failed to secure a hazardous waste permit from Nevada; and included wastes that are not eligible for disposal under the law. 

The DOE also failed to timely distribute its impact statement to Nevada and other key agencies, and failed to evaluate the realistic consequences of not proceeding with the project.

Because the Court of Appeals earlier permitted Nevada to bring its case on the merits to a three-judge panel, Nevada’s legal team was able to scour more than 500,000 pages of documents comprising the administrative record in the consolidated cases, dozens of which are cited in the brief.  These documents indicate that, if the repository’s man-made waste packages do not perform perfectly for at least 10,000 years, the radiation doses humans will receive in the local environment will be far beyond levels permissible by the Environmental Protection Agency (EPA). 

The brief also cites instances of DOE officials lying to Congress and the Nuclear Waste Technical Review Board, doctoring repository performance analyses, and failing to produce dozens of incriminating documents in the administrative record.

“This is just the opening salvo,” Del Papa said, noting Nevada’s additional lawsuits against the EPA and the Nuclear Regulatory Commission (NRC).  At Nevada’s request, all three will be assigned to a single judicial panel in Washington, and all will be heard orally in September 2003. 

Nevada also is contemplating filing a constitutional challenge against DOE and the Nuclear Waste Policy Act, something Del Papa is discussing with Attorney General-elect Brian Sandoval.

“I can’t think of a greater way to end my tenure as Attorney General,” she said.  “I’m very proud of the work our team has done, and I think we will win.” 

The brief will be posted on the state’s Yucca Mountain web site, www.state.nv.us/nucwaste.

DOE's Broken Promises in New Mexico Fuel Nevada's Skepticism
Based on the Department of Energy’s unfulfilled promises to New Mexico more than two decades ago when it established a nuclear waste isolation plant there, state officials are being urged to keep the DOE “at arm’s length” as it pursues plans for the Yucca Mountain repository and promises economic compensation for Nevada.

Nuclear waste arrives at the Waste Isolation Pilot Plant (WIPP) near Carlsbad, N.M. (Las Vegas Sun photo)Bob Loux, director of the Nevada Nuclear Projects Agency, recently told the Nevada Legislature’s Committee on High-Level Radioactive Waste that the state should maintain an “adversarial relationship” with DOE based on New Mexico’s experiences with the Waste Isolation Pilot Plant (WIPP).

“The DOE left a series of broken promises (to New Mexico) and a failure to live up to its commitments” in developing WIPP over the last 15 years, Loux said. “The DOE has systematically backed away from all of its agreements with New Mexico.”

In his testimony, Loux outlined a series of promises that DOE made with New Mexico beginning in 1978, regarding such issues as the state’s ability to veto the WIPP facility and DOE commitments to road construction appropriations.

DOE in 1991 opened WIPP without consulting the state or obtaining congressional approval; New Mexico filed suit to stop DOE from proceeding.  In 1992, over DOE’s protests, New Mexico’s congressional delegation included a provision in the WIPP Land Withdrawal Act proving the state with $20 million per year for 14 years for starting economic assistance.  However, in 1999, DOE withheld the $20 million payment in a dispute with the New Mexico Department of Energy; the action cost the state $7 million in bond payments that came due while the money was being withheld.

“All of these actions portend a significant example for Nevada,” Loux said.

Outrage of
the Week

On Nov. 19-21, the Nuclear Regulatory Commission's (NRC) Advisory Commission on Nuclear Waste (ACNW) held a transportation workshop that brought together representatives from the U.S. Department of Energy (DOE), other federal agencies, and the nuclear industry to discuss various aspects of spent fuel and high-level radioactive waste transportation.

However, conspicuously missing from the workshop’s agenda were experts from the state of Nevada, other states, or public interest groups – i.e., anyone who might bring a broader, albeit more critical, perspective to the issue. 

As a result, committee members and others attending the meeting were treated to a very one-sided and potentially skewed perspective on a matter that is of great importance, not only to the ACNW and NRC, but to the country as a whole.

In a letter to ACNW Chairman George N. Hornberger, Nevada Nuclear Projects Agency Director Bob Loux proposed that, before the committee reports on this matter to the NRC, the state of Nevada be afforded the opportunity to organize a follow-up workshop at a future ACNW meeting for the purpose of providing the committee with views of transportation experts not employed by DOE or the nuclear industry.

We would propose a one day session, with presentations on transportation policy and planning; cask safety/cask testing; security and safeguards; and public acceptance, risk, and risk perception. 

With the transportation of spent nuclear fuel and high-level waste set to become a high profile and potentially volatile public issue as the Private Fuel Storage project in Utah moves towards fruition and plans for nuclear waste transportation associated with the Yucca Mountain program begin to be more visible, the need for enhanced credibility on the part of organizations charged with assuring public health and safety in things nuclear becomes increasingly important. 

The type of meeting ACNW held on November 19th – 21st can only fuel public skepticism and distrust about government’s role in assuring the safety of such shipments and the apparently ‘cozy’ relationship between NRC, DOE, and the commercial nuclear industry.


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