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

Volume 1 Issue 15 ~ October 3, 2003





-  Opening arguments in Nevada's lawsuit against
Yucca Mountain to be heard Jan. 14 

- DOE reclassification of spent nuke waste could set precedent for above-ground storage at Yucca Mountain

- Outrage of the Week


Opening arguments in Nevada's lawsuit against
Yucca Mountain to be heard Jan. 14

Opening arguments in Nevada's lawsuits aimed at stopping the Yucca Mountain high-level nuclear waste repository project will be heard Jan. 14 by the U.S. Court of Appeals for the District of Columbia Circuit.

Originally scheduled for Oct. 3, the opening arguments in the state's cases against the U.S. Department of Energy (DOE), Nuclear Regulatory Commission (NRC), Environmental Protection Agency (EPA), and the Bush administration were pulled form the court's docket in August and reclassified as "complex" cases.

The move provides both sides with more time to present their cases, as much as several hours, according to Joseph Egan, a Washington, D.C.-based attorney representing Nevada in the lawsuits.  Otherwise, each side would only have been allowed 15 minutes per case for opening arguments, Egan said.

However, Bob Loux, executive director of the State of Nevada Agency for Nuclear Projects, said he is unsure how much time the judges will allocate to each of the four major lawsuits from the state, Clark County and the city of Las Vegas.

Pleased that a new date has been set for the proceedings, Loux said, "I'm relieved we have a court date that is in the relatively near future, and not one that would delay our chances of stopping the project any more than necessary."

Nevada has consolidated four lawsuits against the DOE, NRC and EPA over the federal government’s handling of the Yucca Mountain repository proposal.  The state also has filed a constitutional lawsuit arguing that Bush's declaration and a follow-up resolution approved by Congress in summer 2002 violated Nevada's rights.

DOE reclassification of spent nuke waste could set precedent for above-ground storage at Yucca Mountain

A request by the DOE to reclassify some nuclear waste would allow so-called "incidental" wastes to be stored above ground at existing waste storage facilities, a move that DOE believes could save space at the as-yet unlicensed Yucca Mountain repository.


According to a recent The New York Times report, DOE made the request of Congress in late September.  The request followed a July ruling by U.S. District Judge B. Lynn Winmill in Boise, Idaho, which determined that the DOE's plan to leave spent nuclear waste in storage tanks at the Idaho National Engineering and Environmental Laboratory violated federal law.


DOE is trying to get the reclassification language added during a U.S. House-Senate conference committee, which is reconciling the two chambers' 2004 energy bills.  DOE claims that the July ruling poses an obstacle to its plans to treat and store radioactive waste, a delay that Energy Secretary Spencer Abraham warns could increase the current estimated $39 billion price tag by 10 or 100 times.


A tour group enters the north tunnel at Yucca Mountain during a recent visit.In making its request of Congress, DOE claims the judge's ruling poses an obstacle to its plans to treat and store radioactive waste.  High-level radioactive waste must be encased in glass and shipped to Yucca Mountain, but because the proposed repository has not been licensed, DOE hopes that reclassifying the waste as "incidental" will preserve capacity at Yucca Mountain.


"Radioactive waste is radioactive waste, by any other name," said Bob Loux, executive director of the State of Nevada Agency for Nuclear Projects.  "This latest attempt by DOE to skirt existing federal law is simply another example of how the department is manipulating the system as a means to an end -- that is, using fuzzy science and rhetoric to justify Yucca Mountain as a nuclear waste warehouse."


DOE typically treats liquid nuclear waste by converting it into a stable solid and either incinerating or burying it in steel and concrete casings. Normally, low-level radioactive waste is disposed of in special landfills or mixed with ash, loaded into steel drums and stored in concrete until it can be disposed.

"If the DOE has the authority to change the classification of the waste at will, that pretty much undercuts any Congressional control of the issue," said Sen. Jeff Bingaman (D-N.M.), whose state is home to several DOE activities.  According to the Times, Bingaman said that one result could be wastes being shipped to the Waste Isolation Pilot Plant, near Carlsbad, N.M., that did not belong there.


Loux said DOE would likely pursue the same tactic at Yucca Mountain, if Congress approves the reclassification request.

So-called "incidental" nuclear waste, including waste waters and sludges -- the remnants of nuclear weapons production -- are stored in South Carolina and Washington state. The judge's July ruling also could affect a facility in New York state where contaminated buildings may be left in place.


Outrage of
the Week

The more things change, the more they remain the same.  The presentation by DOE’s new Yucca Mountain transportation program director, Gary Lanthrum, to the Nuclear Waste Technical Review Board on Sept. 17 in Pahrump, Nev., certainly confirmed this bit of conventional wisdom.


Lanthrum walked through eleven view-graphs highlighting all of the new approaches he proposes to bring to DOE spent fuel and high-level waste transportation efforts.  While Lanthrum went to great pains to tell the Board that, clearly, this is a new day when it comes to HIS mission and HIS vision for the DOE program, his remarks were heavy on high-sounding rhetoric and very, very light on substance. 


At the end of his presentation, one of the Board members pointedly asked Mr. Lanthrum if he planned to issue for public comment a draft of the long-awaited DOE transportation strategy document before the strategy is finalized.  Lanthrum’s response:  There won’t be time for that.  Notwithstanding the fact that earlier in that same meeting, DOE Deputy Director John Arthur promised the Board that schedules and deadlines will never keep DOE from doing the job right.


New day or not, it’s the same old pattern.  Keeping to an arbitrarily established schedule – in this case one that isn’t even formal or statutory – is more important than taking the time to do a job right. “Right” meaning, in this instance, providing adequate time for stakeholder and public input into a critically important transportation planning document and assuring that such input finds its way into the plans before they are finalized.   


In reality, DOE is acting true to form – a form that has characterized the agency’s approach to every aspect of the Yucca Mountain project since its inception.  High-minded lip service has always been given to the ideal of public participation while the real decisions affecting how the program functions – and how it impacts people, states, communities, and other stakeholders – are made on the basis of what’s expedient at the time.  


In the area of spent fuel and HLW transportation, this type of agency decision-making is a train wreck in the making – if not in the literal sense, surely in the sense of how successful DOE’s transportation program can be expected to be.  In the sociology of organizations, it’s known as the DAD approach (Decide, Announce, Defend) and it’s a sure path to public distrust and distain, especially for a government agency.


What Lanthrum and his colleagues fail to understand or simply won’t see is that the public - people who will be substantially impacted by the largest, longest,  and most complex nuclear materials shipping campaign in history – has never trusted DOE, for good reason.  And without attaining some element of trust, the chances are slim to none that DOE will be able to implement such a highly visible and controversial program without major conflict and public and political turmoil.


Lanthrum’s first decision regarding public involvement as the new DOE Yucca Mountain transportation czar is certainly not reflective of the “new day” that has been promised.  It’s just more of the same. 


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Tom Bradley Jr.
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