WASHINGTON -- An appeals court on Friday upheld the government's decision to single out Nevada as the site of a nuclear waste dump but ruled that the federal plan does not go far enough to protect people from potential radiation beyond 10,000 years in the future.
While the court dismissed virtually all of the arguments raised by Nevada and environmentalists against the Yucca Mountain project, its rejection of the radiation standard raised new questions about whether the waste repository will be built -- or at least meet its target of 2010 to begin operation.
Energy Secretary Spencer Abraham said he was confident the radiation exposure standard could be resolved. He said Friday's court ruling had "dismissed all challenges to the site selection of Yucca Mountain" and the project was moving forward.
But attorneys for Nevada and environmental groups said the court's rejection of the Environmental Protection Agency's proposed radiation exposure limits could doom the project.
"We think we put a stake through the heart of this project," said Joe Egan, an attorney for Nevada in the Yucca Mountain litigation.
Antonio Rossmann, who argued the EPA radiation matter before the court on behalf of the state, called it "the first domino" on which the project could fall, depending on whether it is resolved.
The three-judge panel of the U.S. Court of Appeals rejected Nevada's claims that it was unconstitutional to single out the state for a national nuclear waste site, located 90 miles northwest of Las Vegas. The panel also refused to review how the Bush administration chose the site, although Nevada had argued the process was illegal.
Citing these rulings, Abraham said he was pleased the court ruling had removed any question about the legality of the site selection process.
But a senior Energy Department official, speaking on condition of anonymity, acknowledged the court's rejection of the radiation standard -- as well as recent budget problems for the project in Congress -- could cause delays. He said fixing the radiation standard may require more congressional action.
The three-judge panel said the EPA acted illegally when it limited the radiation exposure requirements to 10,000 years into the future when Congress directed the agency to develop a rule "consistent" with recommendations from the National Academy of Sciences.
Contrary to EPA's interpretation, a 1995 NAS report found "no scientific basis for limiting the time period of the individual risk standard to 10,000 years." The report said the standard should be designed to protect people whenever the waste is at its highest danger. Scientists agree that some radionuclides to be kept at Yucca Mountain would reach their peak of danger well beyond 10,000 years. But the EPA maintained that computer models for any time beyond that are unreliable and essentially useless.
"The EPA wholly rejected the academy's recommendations," the judges wrote. They said the EPA must either issue a revised standard consistent with the NAS findings or get Congress to give it authority to deviate from the NAS recommendations.
Congress by a wide margin approved the Yucca site in 2002 under very restrictive rules laid out by the nuclear waste law. Any attempt to address the radiation standard would be open to no such restrictions and subject to a filibuster in the Senate where Nevada's two senators have vowed to use any measure available to block the project.
"To ask Congress to change the rules because the thing is unsafe is going to be a very heavy burden for them," Rossmann said in an interview Friday. He said the Yucca project "has become dead in the water."
The government wants to bury 77,000 tons of nuclear waste -- defense waste and used reactor fuel building up at commercial power plants -- in canisters at Yucca Mountain where project planners say it can be safely isolated for tens of thousands of years. Its plan calls for seeking a license from the Nuclear Regulatory Commission over the next three years and having the facility completed and open for business by 2010.
The three-judge appeals court panel was composed of Judges Harry Edwards, Karen Henderson, David Tatel.
On the Net
Yucca Mountain project: http://www.ymp.gov
Office of Civilian Radioactive Waste Management: http://www.state.nv.us/nucwaste
Nuclear Regulatory Commission: http://www.nrc.gov