10,000-Year Standard for Waste Containment Criticized

By Kevin Kamps

“ Ten thousand years is incorrect,” federal appeals court Judge Harry T. Edwards told the Justice Department lawyer. Judge Edwards was dismissing the Environmental Protection Agency’s (EPA’s) arbitrary 10,000-year standard for the length of time nuclear waste must be isolated at any future Yucca Mountain nuclear waste dump. Containers must isolate the waste for at least 300,000 years, Edwards noted, citing a National Academy of Sciences estimate.

In the 20-year struggle over use of Nevada’s Yucca Mt. as a national dumping ground for nuclear waste, the EPA has argued that a repository should contain the waste for only 10,000 years.

Government attorneys made the same claim January 14, when a combined group of 12 lawsuits against the Yucca Mt. plan was heard in the U.S. Court of Appeals for the Washington DC District. Two of the three appeals court judges “seemed to side with opponents of the site on the issue of how long a repository should have to retain the waste,” the New York Times reported.

A coalition of national and Nevada-based environmental groups want to overturn the EPA’s artificial limit on regulatory enforcement. Even the DOE has admitted that its burial containers could fail soon after 10,000 years. The State of Nevada predicts that leakage would occur sooner than that, and that peak radiation doses to “receptors” downstream (people, that is) would occur 100,000 to 300,000 years later. As a group of U.S. members of Congress said before the EPA issued its final Yucca Mt. rules, “To cut off regulation at 10,000 years is to be aware of future dangers but do nothing about them.”

The environmental coalition is challenging the EPA’s rewritten regulations for Yucca. Natural Resources Defense Council attorney Geoff Fettus argued the coalition’s case before the three-judge panel. Fettus told the court that the EPA’s 11-mile radioactive contamination dilution zone for the groundwater surrounding the dump would violate the federal Safe Drinking Water Act. The aquifer beneath Yucca is used for drinking and irrigation in the Amargosa Valley, one of Nevada’s largest farming communities.

“ The EPA’s Yucca Mountain rule assumes the proposed repository will leak and inappropriately allows the Energy Department to rely on dilution in order to meet national standards. The agency should not be permitted to misuse its discretionary powers to undermine the Safe Drinking Water Act,” said Fettus.

Nevada also has a groundwater protection lawsuit against the EPA, while the industry’s Nuclear Energy Institute has sued the EPA claiming the standard is too stringent.

The 12 consolidated cases involve constitutional authority, site suitability, environmental contamination, official site recommendations, and the Nuclear Regulatory Commission’s (NRC’s) licensing standards.

The constitutional case is that under the Tenth Amendment, 49 states cannot gang up on a politically weak state to impose an unwanted burden without a compelling, rational basis. The coalition also argued that applying a set of weaker rules at Yucca, while adhering to more stringent regulations at other sites in the U.S. is unfair and illegal.

Nevada and the coalition also argued that changing the site requirements at the very last moment, as the DOE has done, violated the 1982 Nuclear Waste Policy Act (NWPA). The Act required that a deep geologic repository isolate waste from the environment. A major DOE study in 1980 reaffirmed the importance of such isolation. The legislative history of the law clearly states that geologic isolation should hold for up to 250,000 years. However, a series of DOE tests between 1996 and 2000 revealed that Yucca Mountain’s geology cannot isolate the waste.

In 1996, the DOE conducted the first of 17 site suitability tests. This test, on groundwater travel time, showed Yucca to be a miserable failure. The DOE found that in less than 50 years, rainwater had percolated from Yucca’s surface to the depth of the test caverns.

The environmental case is that the DOE has violated the National Environmental Policy Act by failing to answer basic questions about the proposed dump's design and transport plan.

Nevada’s case against last year’s congressional approval of the Yucca site is simple: This recommendation was based on flawed and incomplete analyses and relied on prohibited rule changes.

Nevada also argues that the NRC’s Yucca licensing rules violate the NWPA and Atomic Energy Act because the 10,000-year regulatory cutoff would not protect Nevadans from Yucca’s peak doses; no minimum requirements for geologic suitability are established; defense-in-depth through application of “multiple barriers” (both natural geology and cask engineering) is not required.

The Appeals Court decision may be issued by summer 2004. The court could kill the Yucca dump for good, or may cause major delays for the project if the more stringent original regulations are required of the federal agencies involved. If not blocked by the court, the DOE has announced it will file its application to the NRC for a construction/operating license by the end of 2004.

Opponents are gearing up to challenge the NRC’s licensing process on procedural, technical and safety grounds.

The licensing process could last three to four years, with hearings in Nevada and perhaps Washington, DC Already, the electronic docket for the NRC’s Yucca Mt. licensing is a whopping 42 million pages.

Kevin Kamps is an antinuclear activist and Radioactive Waste Specialist at Nuclear Information & Resource Service in Washington, DC.