Opponents of a planned nuclear waste dump in Nevada argued in court Wednesday the government has failed to ensure that the public will be protected when radiation from the entombed waste reaches its peak hundreds of thousands of years from now.
Attorneys for Nevada and an environmental group asked a three-judge panel to reject the Bush administration's plan for storing highly radioactive waste at Yucca Mountain in the Nevada desert unless it can be shown protective radiation standards can be met at least 300,000 years into the future, when some of the isotopes are most dangerous.
The arguments before the federal appeals court represent a last-ditch effort by Nevada and other opponents of the Yucca repository to keep 77,000 tons of nuclear waste from being shipped to Nevada for burial. The waste is building up at commercial reactors around the country.
The three-judge panel of the U.S. Court of Appeals was expected to make a decision on the Yucca project later this year. The arguments, during a three-hour session, revolved around both constitutional issues and complicated scientific questions.
"All of the legal wrongs … stem from the fact that the waste will not be isolated," Geoffrey Fettus, an attorney for the Natural Resources Defense Council, told the court.
Fettus and Antonio Rossman, an attorney representing Nevada, argued that an environmental protection agency radiation standard for the proposed waste site that is pegged to 10,000 years into the future is inadequate.
"The maximum risk arises at 300,000 years," argued Rossman.
Two of the three judges sharply questioned why the EPA chose the 10,000-year mark and noted that a National Academies of Science report suggests a danger long beyond that.
The NAS report is "absolutely clear … that 10,000 years is incorrect," Judge Harry Edwards told a Justice Department attorney.
Edwards and Judge David Tatel repeatedly asked the government attorney why the EPA rejected the NAS recommendation when, they said, that Congress specifically required the NAS findings to be taken into account.
"An agency does not have the authority to do whatever it wants to," Edwards said.
Christopher Vaden, representing the Justice Department, said the EPA selected the 10,000-year mark for its radiation exposure standard because of policy considerations as well as scientific issues.
The question of time is important because the reliance on engineered barriers to isolate waste at the site would not be possible 300,000 years into the future. Nevada officials have argued that Congress required the project to depend on geology to keep the waste isolated. But the government has proposed a plan that requires both geology and man-made barriers to do the job.
Nevada's legal team is pinning its case on two central themes: That singling out the state violated its rights under the U.S. Constitution and that the Energy Department illegally abandoned a requirement that the site's geology must be shown to contain the waste for more than 10,000 years without relying on engineered barriers.
The court "is the state's best chance" to prevail, says Bob Loux, who heads Nevada's Yucca mountain project office and has advised a succession of Nevada governors on the issue over the years.
The court has consolidated 13 separate lawsuits, including nine filed by the state or other Nevada jurisdictions. It also has scheduled arguments on issues from the adequacy of federal radiation standards to the constitutional issues surrounding the decision to push the waste site on a small, politically vulnerable state.
"This is the first time that any court in this country is really going to look at the fundamental legal merits of this project," said Joe Egan, the lead attorney for Nevada.
Energy Department spokesman Joe Davis said the legal fight will not interrupt the department's plans to continue developing a detailed application for construction and operating permits with the Nuclear Regulatory Commission.
The Yucca Mountain site is located 90 miles northwest of Law Vegas. It is expected to cost $58 billion, and — if the government prevails — it will be open for initial shipments in 2010.
In 1987, with politicians nervous about the prospect of a nuclear waste site in their state, Congress declared Yucca Mountain would be the only site studied further.
Last year, President Bush declared that Yucca Mountain was a suitable site. An attempt by Nevada to short circuit the decision was turned back by Congress, which reaffirmed Mr. Bush's decision five months later.
The nuclear waste is currently being kept in temporary facilities scattered across 39 states, in cooling ponds and in storage buildings outside nuclear reactors. Some of it sits adjacent to rivers or on top of water tables. Secretary of Energy Spencer Abraham says 161 million Americans live within 75 miles of one of these sites.
Even Yucca Mountain will not be able to accommodate all the country's reactor waste.
Hoping to preserve capacity at Yucca mountain, the Energy Department has tried to reclassify some reactor waste water "incidental," so the government could leave the waste in the tanks where it is now stored.
But a federal judge ruled in July that the DOE's plan violated federal law. The waste in question was in Idaho, but similar waste waters and sludges, the remnants of nuclear weapons production, are stored in South Carolina and Washington state, The New York Times reported.
The Energy Department argues that the July ruling poses a huge obstacle to their plans to treat and store radioactive waste. Abraham warns the delay could increase the current estimated $39 billion price tag by 10 or 100 times.
The Energy Department usually treats liquid waste by turning it into a stable solid and either incinerating or burying it in steel and concrete casing.
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.