US Court upholds Yucca Mountain's selection as waste repository

Washington  (Platts)--9Jul2004

A US federal court Friday rejected claims by Nevada that a 2002 congressional
resolution approving Yucca Mountain as the site of a nuclear waste repository
was unconstitutional, providing a major victory for the Dept of Energy and the
nuclear energy industry. At the same time, the court tossed out an
Environmental Protection Agency health and safety standard for Yucca Mountain,
a move that may affect DOE's preparation of an application for a Nuclear
Regulatory Commission permit for the facility. "The Resolution is the law, the
Yucca site has been finally approved, and DOE has been authorized to seek
permission from NRC to construct and operate the repository," a three-judge
panel of the DC Circuit Court of Appeals ruled Friday. Nevada had claimed that
the resolution had denied it "equal treatment" under the US Constitution
because Congress considered only Yucca Mountain for the repository and not
sites in other states.

The court responded, however, that the resolution was consistent with the
federal government's right to dispose of federal property, such as Yucca
Mountain. At the same time, the court vacated part of an EPA standard,
promulgated earlier this year, that required DOE to limit radiation from the
repository for 10,000 years. The court said EPA had violated the 1992 Energy
Policy Act, which directed the agency to issue public health and safety
standards for Yucca Mountain "based upon and consistent with" findings by the
National Academy of Sciences. A 1995 report by the academy, the court noted,
disputed proposals for a 10,000-year standard and urged EPA to consider a much
longer timeframe. The court remanded the matter to EPA for further
consideration, telling the agency that it "must either issue a revised
standard that is 'based upon and consistent with' NAS's findings and
recommendations or return to Congress and seek legislative authority to
deviate from the NAS Report."

A Nevada official said the adverse ruling on the 10,000-year standard is
reason enough for the repository's failure. "We believe it effectively kills
the Yucca Mountain project," said Robert Loux, who heads Nevada's nuclear
waste office. Loux said the state was "exceptionally pleased," adding, "It
only took about 22 years for this." Loux claimed Yucca Mountain geology cannot
meet a 10,000-year standard, never mind one that is longer. The Nevada
official said it was possible the state will not appeal the court's dismissal
of the bulk of the state's other lawsuits in the consolidated case. Energy
Secretary Spencer Abraham hailed the court ruling. "The court dismissed all
challenges to the site selection of Yucca Mountain," he said in a statement
Friday. "Our scientific basis for the Yucca Mountain Project is sound. The
project will protect the public health and safety." Of the EPA standard,
Abraham said DOE "will be working with the EPA and Congress to determine
appropriate steps to address this issue."

This story was first published in Platts weekly energy policy newsletter
Inside Energy (http://insideenergy.platts.com ).

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