The Yucca Mountain Radioactive Waste Site Controversy:
The Role A Recent Federal Appellate Decision In The Controversy May Play in the Presidential Election

By JAMISON COLBURN

Thursday, Oct. 14, 2004

In their series of debates, the candidates have explored a number of legal issues of consequence in the upcoming election. But one such issue still lies dormant under a ridge in the Nevada desert.

The issue is Yucca Mountain. For Nevadans, it's visceral: When the dust finally settles, the repository will likely house over 70,000 metric tons of highly radioactive waste. Nevada - with five electoral college votes - doesn't want that waste. Indeed, Nevadans feel a strong antipathy toward anyone even remotely responsible for Yucca. In 2000, for instance, then-Governor Bush used the issue to beat then-Vice President Gore in that states.

Unfortunately for President Bush, it is now possible that Senator Kerry will best him in Nevada using the very same issue. Las Vegas -- the fastest growing city in America -- gains 5,000 new residents every month and, of course, contains the "gaming" lobby - one of the most powerful in the country. And recent decisions regarding Yucca Mountain from the U.S. Court Appeals for the District of Columbia Circuit have, as I discuss below, added some fuel to the fire of this controversy.

But should Yucca Mountain really be laid at the President's door? This train started rolling 22 years ago and it has taken almost $4 billion to keep it chugging through five presidential elections since.

It may be just bad luck that President Bush - like would-be President Gore - before him - has assumed this legacy. After all, the entity originally responsible for Yucca Mountain was Congress. And the reason twenty-two years have passed since Congress acted, may have much more to do with the truth about administrative agencies, than with any of the individual Presidents who have served during that time.

Nevertheless, a recent federal court ruling finding that the Bush EPA underestimated Yucca Mountain's risks may well influence the election - for this ruling may tend to further enrage Nevadans, adding to their ongoing anger over Yucca Mountain.

The NWPA: What This 1982 Law Required of Three Administrative Agencies

The Yucca Mountain story begins in 1982. That year, in the Nuclear Waste Policy Act (NWPA), Congress "federalized" the disposal of high-level radioactive waste - ensuring it would be exclusively under federal power.

The NWPA charged three federal agencies -- the Department of Energy (DOE), the Environmental Protection Agency (EPA), and the Nuclear Regulatory Commission (NRC) -- with designing, building, and administering a single centralized repository for such waste. The idea was that the repository would replace the current system: on-site storage of waste at the more than 100 nuclear power generating facilities nationwide.

The NWPA charged the three agencies with find the right "remote location" for the waste repository. The hope was that putting the waste in a single place would minimize the possibilities of sabotage or terrorism--or indeed, releases of any kind--and make the waste easier to manage.

Each of the three agencies was given different responsibilities with respect to Yucca Mountain. EPA was to write "general" standards for the containment structures in order to prevent releases. NRC was to license the facility, as it was designed and proposed by DOE. And DOE was to administer the facility long-term.

How would the site be selected? Under the NWPA, DOE was to nominate five candidate sites; study those sites in cooperation with NRC; and then narrow the list to three. This short list was then to be presented to the President - with detailed characterizations of each site.

Then, with the President's approval, the final selection was to be presented to Congress, with the opportunity given to the unlucky State to "disapprove." But this so-called disapproval could be overridden by a joint resolution of Congress.

The Agencies Bog Down in Analysis - and Congress Intervenes

It made sense for the NWPA to require all this analysis of candidate sites by the three different bureaucracies. The technical expertise of one administrative agency could check that of the others.

And since the ultimate choice was going to be a sacrifice on the part of one state, it was important that the decision be made responsibly. In the event of containment breach, the site - and part of the state - would surely be consigned to environmental oblivion.

Unfortunately, as has been true of most carefully-done environmental impact assessments, the analysis became bogged down and pricey. It took three years just for EPA to write basic containment standards for the eventual site. Meanwhile, DOE and NRC foundered in their attempt to identify 5 uniquely suitable sites.

By 1987, the waste was still piling up at the dispersed facilities, many of them near major cities. And that is still true today. That means that some 160 million people in 39 states live within 75 miles of a facility.

In light of this reality, Congress grew weary of the selection process it had created, and simply picked a site: Yucca Mountain, an old weapons test site owned by the government. Favoring the selection of the site were the fact that it was located almost 100 miles from the nearest city; the fact that Nevada was not a highly populated state; and the fact that the federal government owned 87% of the land in the state.

More Analysis - This Time, Focused Solely on Yucca Mountain

In the 1992 Energy Policy Act, Congress ordered the three agencies to focus their full attention on this site and to devise the safest storage structure feasible there.

To ensure their success, Congress charged an independent panel of the National Academy of Sciences (NAS) with analyzing Yucca Mountain. And, Congress required that the containment standards eventually created be "consistent with and based upon" NAS's findings.

Analyzing Yucca took much of the next decade. Working through its contingencies produced a detailed knowledge of Yucca Mountain and its probable futures. The design was tweaked accordingly.

Nevada Clashes with Congress and the Administration over Yucca Mountain

In 2002, the Bush administration finally presented a formal "approval" of the site to Congress: The approval opined that looking out 10,000 years into the future, the risks were acceptable.

Unsurprisingly, Nevada disagreed. But the Congress vetoed Nevada's "disapproval." The veto was enacted into law in the way ordinarily legislation is - its passage was bicameral; and it was presented to and signed by the President, who chose not to veto the veto. (Thus, none of the problems raised by other "legislative vetoes," such as the one at issue in the Supreme Court's decision in INS v. Chadha, arose.) In addition, it was within Congress power, for it pertained to federal realty governed by the Property Clause.

D.C's Federal Appellate Court Rules on Yucca Mountain-Related Challenges

In September, the D.C. Circuit, denying rehearing, rejected a slew of challenges to the EPA's containment standards and DOE's environmental impact statement. However--and significantly - it also found that the EPA had violated the Energy Policy Act's mandate to write rules "based upon and consistent with" the 1995 NAS findings for Yucca.

The court pointed out that the NAS had found that there was no scientific reason to limit the timeframe of risk analyses to 10,000 years. Yet EPA had done just that.

EPA's choice to limit its rules to the next 10,000 years was defensible for several reasons - for example, because predictions so far into the future are extremely speculative. Nevertheless, the court found that this limitation was unacceptable.

For one thing, the court noted, Yucca's "peak risk"--the point at which the atomic decay will have progressed to a stage where radioactive emissions are the highest--might not even occur in the first 10,000 years! So the EPA's limiting its analysis to the next 10,000 years might well ignore the "peak risk" of the site.

Accordingly, the court held that the Bush EPA's standards were not "based upon and consistent with" the NAS study. It seems, then, that the EPA will have to go back and re-perform the analysis behind its rules - this time, taking into account a far longer timeframe. Only then, will the EPA end up with rules the court will deem consistent with the NAS study.

It is possible that the EPA will take this issue up to the U.S. Supreme Court. Whether or not it does so, as I have noted above, the issue may play a role in the election. At this point, a ruling that his EPA did not take into account all of Yucca Mountain's risks was the last thing President Bush needed when attempting to persuade Nevadans to give him their votes.


Jamison Colburn teaches environmental and administrative law at Western New England College, School of Law. Prior to teaching, he was Assistant Regional Counsel for the United States Environmental Protection Agency in Philadelphia.

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