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

Volume 1 Issue 19 ~ December 22, 2003






- Yucca Mountain Lawsuits Could Be Appealed to

 U.S. Supreme Court

- What’s Wrong With Putting Nuclear Waste in Yucca Mountain? Water flow (fourth in a series)

- Outrage of the Week


Yucca Mountain Lawsuits Could Be Appealed to            U.S. Supreme Court

No matter how a federal court in Washington, D.C., rules on a series of lawsuits filed to derail the Yucca Mountain project, it is likely that the cases could be appealed to the U.S. Supreme Court, an attorney representing Nevada said recently.

Attorney Joseph Egan is representing Nevada in its fight to defeat the Yucca Mountain project.Speaking at a press conference Dec. 18 at the National Press Club in Washington, D.C., attorney Joseph Egan (left) said an appeal to the high court by either Nevada or the federal government will no doubt follow in the heels of an anticipated decision from the U.S. Court of Appeals for the District of Columbia Circuit. 

Arguments in the cases are slated for Jan. 14, while a decision could come down in mid-2004, Egan said. 

Nevada has filed a series of lawsuits against the DOE, the Nuclear Regulatory Commission (NRC), and the Environmental Protection Agency (EPA) aimed at blocking licensing and development of Yucca Mountain, 90 miles northwest of Las Vegas, as a repository for 77,000 metric tons of the nation’s high-level nuclear waste. 

State officials have said these lawsuits may present the best opportunity yet to stop the proposed nuclear waste dump from being built at Yucca Mountain.

"If Nevada loses all its cases, which we do not think is likely to happen, but if we lose it all, the DOE's licensing from NRC will still take a minimum of four years," Egan said. 

In the interim, science could halt the project, Egan said, noting that the judges could reiterate to DOE that they are required by Congress to demonstrate that Yucca Mountain is geologically isolated and can safely store radioactive wastes for 10,000 years.

"If DOE must do this, then Yucca Mountain is history," Egan said.  "All the science we have seen indicates that this cannot be done."

Joining Egan at the press conference were Bob Loux, executive director, State of Nevada Agency for Nuclear Projects; former NRC Commissioner Victor Gilinsky; and attorneys Marty Malsch and Chuck Cooper, part of the state's legal team.

Egan said arguments by both sides in the state's cases could take most of the morning of Jan. 14, perhaps even that entire day.  Nevada's consolidated cases are the only items calendared for the court that day on the Circuit Court's complex docket, which allows both sides more time to present their cases and answer questions from the bench.

At the hearing, Egan will present Nevada's cases against the DOE while Cooper will argue the state's case that the joint resolution of Congress to designate Yucca Mountain as a repository for the nation's high-level nuclear waste -- passed and signed into law by President Bush in July 2002 -- violated the U.S. Constitution. 

Malsch will handle the state's case against the NRC while San Francisco-based land use and natural resources lawyer Tony Rossman will argue Nevada's case against the EPA.

What’s wrong with putting nuclear waste in Yucca Mountain? Water flow (fourth in a series)

The analysis of safety at the proposed Yucca Mountain high-level nuclear waste repository begins with projected rainfall.  However, the DOE’s computer models ignore climate change impacts expected at Yucca as a result of global warming.

DOE assumes an average annual rainfall that is spread out evenly during the year.  DOE, therefore, assumes most of the water evaporates before penetrating the mountain. 

In fact, rainfall at Yucca occurs frequently as torrential storms, often resulting in flooding that penetrates the mountain through fractures and faults.  Last July, flash flooding washed out roads DOE had built at Yucca.  Yucca’s surface is latticed with erosion features from such flooding.

Meanwhile, below Yucca Mountain’s surface is volcanic rock DOE calls the “unsaturated” zone.  The repository would be built in this zone, about 1,000 feet beneath the mountain crest, and about 1,000 feet above the water table.

Because the volcanic material is porous and retains water in innumerable matrices and voids, 80 percent of the void space is actually filled with water, on average.

DOE hopes to show that little or no water will make it through this zone and into the repository.  However, DOE now estimates there are at least a billion fractures in the unsaturated rock, permitting fast water flow times of as little as 50 years. 

In addition, high repository temperatures from radioactive decay of nuclear waste will release and mobilize water already trapped in rock voids.  DOE has found trapped water deposits of up to a million gallons at Yucca Mountain.

(Editor's note: Future editions of Yucca Mountain Update will feature more "What's Wrong with Yucca Mountain" articles covering a wide range of issues.)

Outrage of
the Week

Last week, the Department of Energy, in a letter to the Nuclear Regulatory Commission, announced it would answer all the remaining technical questions about Yucca Mountain by August, much sooner than originally planned.  Of itself, such a letter would seem innocuous enough – DOE informing the regulatory agency responsible for licensing the Department’s repository project.  Never mind that DOE acknowledges somewhere in the neighborhood of 200 issues still need to be resolved before the Department can complete its license application for the Yucca Mountain project.  What is troubling about the letter is the timing and context.

In November, DOE and NRC staffs held a week-long series of closed door, secret meetings.  These meetings smacked of collusion between a license applicant (DOE) and the licensing agency (NRC).  At the time, State officials complained bitterly about being barred from the meeting, pointing out that such meetings had never been closed before and that there were no classified matters or anything to justify excluding Nevada’s technical oversight representatives, local government participants, and the public.  Both DOE and NRC loudly denied charges that the meetings were being restricted to enable staff from the two federal agencies to formulate, out of the glare of public scrutiny, strategies for getting around the increasingly significant body of research and technical findings indicating Yucca Mountain cannot qualify for a license, even under the new, weakened NRC licensing regulations. 

Just a few weeks following the first set of closed door meetings, DOE now finds it has miraculously been able to accelerate its schedule for resolving key technical questions about the Yucca site.  You can almost hear the snickering in the hallways of NRC as the DOE letter is received.  "Guess we fooled those pesky State people, alright.  All it took was a little coaching for DOE to figure out how the game is played."

In the past, it was widely accepted that NRC and DOE were engaging regularly in some behind-the-scenes shenanigans.  However, both agencies generally took pains to at least attempt to be subtle about it and not make the colluding too obvious. 

Apparently, current circumstances regarding major technical deficiencies at Yucca Mountain and DOE’s abysmally inadequate site evaluation work now require more desperate measures, and NRC now appears bent on doing whatever is necessary to smooth the way for a Yucca Mountain license. 

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