Megan Foote

February 27, 2002

To the dismay of many Nevadans and various activist groups, President Bush approved Yucca Mountain in Nevada as the federal storage site for spent nuclear fuel on February 15, 2002.[1]  President Bush cites homeland security, national security, and energy security as reasons for the approving the Yucca Mountain site.[2]  This decision follows nearly 15 years of the extensive study by the Department of Energy ("DOE") concerning the suitability of the site to isolate nuclear fuel and high-level radioactive waste from the surrounding environment.[3]  According to Secretary of Energy Spencer Abraham, the site "will be able to protect the health and safety of the public."[4]  However, many Nevadans and activists groups charge that the decision is not based on "sound science" and that it poses an "unnecessary risk" to millions of people who live along proposed transportation routes and within the vicinity of the site.[5]

In the Nuclear Waste Policy Act of 1982, Congress delegated to the DOE the responsibility of determining a suitable site for the storage of 77,000 metric tons of high-level nuclear waste produced by nuclear power plants in 34 states.[6]  Since that time, the agency primarily studied sites in Nevada, Texas, and Washington.[7]  However, in 1987, Congress limited those sites under consideration to Yucca Mountain.[8]  Following this decision, the DOE has conducted extensive research regarding the site's geology, hydrology, biology, and climate.[9]

Located in south central Nevada about 100 miles northwest of Las Vegas, Yucca Mountain is federally owned land on the western edge of DOE's Nevada Test Site.[10]  Under the plan espoused by Secretary Abraham on February 14, 2002, the Yucca site would provide a repository for 40,000 tons of used reactor fuel rods currently stored at 104 commercial power reactors in 31 states and radioactive defense waste currently stored in eight states.[11]  The actual physical location of the waste repository would be approximately 1,000 feet below the top of the mountain and 1,000 feet above the groundwater.[12]  The waste would be shipped to the site by truck or rail in casks certified by the Nuclear Regulatory Commission ("NRC") to withstand accidents, impact, puncture, and exposure to fire and water.[13]  These transportation routes, which would cross through 43 states, would be required to meet Department of Transportation routing regulations and guidelines before any shipping could take place.[14]

While President Bush's decision to approve Yucca Mountain as a nuclear waste repository is certainly a milestone in this comprehensive process, it is not a done deal - at least not yet.  Under the Nuclear Waste Policy Act of 1982, the governor of Nevada and the legislature have the right to submit a "Notice of Disapproval" to Congress within 60 days of the President's recommendation of the site.[15]  Congress has the choice of either overriding the "Notice of Disapproval" or concurring with the notice.[16]  If Congress chooses to override the "Notice of Disapproval" through a majority vote of both houses, the NRC, an independent agency, must still approve a license application by the DOE to open the facility to accept waste.[17]

Before approval of the license application, the NRC must determine whether the site meets the U.S. Environmental Protection Agency's ("EPA") public health and environmental protection standards both under normal conditions and in the event of "human intrusion."[18]  The EPA's standards address all potential sources of exposure, including air, groundwater, and soil.[19]  These standards limit an individual's annual radiation exposure to no greater than 15 millirem per year.[20]

Even though Secretary Abraham and President Bush have approved Yucca Mountain as a nuclear waste site, DOE has not completed much of the research necessary to obtain the NRC license.[21]  In fact, the design of the repository itself is still incomplete and basic research concerning the ability of the containers and the rock formations to prevent contamination of the surrounding environment remains to be done.[22]

While Secretary Abraham is convinced that "the science behind the project is sound," critics of the project are not so sure.[23]  According to Senator Harry Reid, D-Nev., Secretary Abraham's recommendation is "a hasty, poor and indefensible decision" at a time when the "science does not yet exist" to ensure the wastes can be contained for thousands of years.[24]  Senator Reid urged President Bush to seek independent scientific review before making a decision, but this action was not taken prior to the approval on February 15, 2002.[25]

Critics point to recent reports, which find fault in the site's ability to prevent contamination.  A recent report by the federal government's Nuclear Waste Technical Review Board found that "the technical basis of the DOE's repository performance estimates is weak to moderate at this time" and concluded that they have "limited confidence in current performance estimates generated by the DOE's performance assessment model."[26]  The General Accounting Office ("GAO") also indicated that the administration's decision was "premature" by several years due to the many unresolved technical and scientific issues surrounding the safety of the site.[27]

In addition, critics challenge with the administration's decision to use the need to protect homeland security, national security, and energy security as a basis for the decision.[28]  They argue that moving this hazardous waste from various states throughout the country to Nevada is risky and will provide an "invitation to terrorists" seeking to attack the United States' nuclear facilities.[29]  Furthermore, movement of the waste by truck and rail will put those living near and along the routes at greater risk for exposure and increase the chance of a nuclear accident.[30]

With nuclear energy currently accounting for 20 percent of the nation's energy supply, the waste created as a byproduct of the energy-making process will continue to grow.[31]  Provided Congress overrides the Nevada veto and the NRC grants a license for the facility, DOE believes that the site will become operational in 2010.[32]  However, the GAO claims that it is unlikely that the facility will be functional prior to 2015.[33]  Even if the facility becomes operational, it will only accept waste for approximately 100 years before it enters a phase of closure and decommissioning.[34]  Then, the process for selecting a new site will have to begin again, if nuclear power continues to be a viable source of energy.

Inevitably, this waste must be stored somewhere.  However, the question lingering on the minds of many is whether Yucca Mountain is really the best place for this waste to be stored.  Congress's quick action in 1987 to limit the sites under consideration from three sites to only one, instead of examining all three concurrently, raises important questions as to the suitability of Yucca Mountain compared to others.[35]  Furthermore, Yucca Mountain is located above an aquifer that is a source of drinking water and irrigation for surrounding cropland.[36]  DOE's failure to complete studies regarding the ability of DOE to prevent contamination prior to President Bush's approval also indicates that Yucca Mountain may not be the most secure place to store 77,000 tons of high-level radioactive waste.[37]  Before this plan proceeds, the public, not just Nevadans, must demand further scientific studies of the site and the potential for contamination.  While the name "Yucca Mountain" certainly fits, the suitability question still remains.

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[1] Bush Approves Nuclear Waste Site, at http://www.msnbc.com/news/707736.asp (last visited Feb. 15, 2002). [hereinafter Bush Approves]

[2] Major Garrett, Bush Backs Nevada Site For Nuclear Waste, CNN, Feb. 15, 2002, available at http://www.cnn.com/2002/ALLPOLITICS/02/15/bush.nuclear.waste/index.html (last visited Feb. 15, 2002).

[3] Id.

[4] Elizabeth Shogren & Tom Gorman, Energy Chief Urges Yucca Mountain for Nuclear Waste, L.A. TIMES, Feb. 15, 2002, available at http://www.latimes.com (last visited Feb. 15, 2002).

[5] Suzanne Struglinski, Yucca Mountain: Abraham Makes Formal Recommendation, Decision Now Falls To Bush, GREENWIRE, Feb. 14, 2002, available at www.eenews.net/Greenwire/Backissues/021502gw.htm.

[6] Garrett, supra note 2; Department of Energy, The Nuclear Waste Policy Act of 1982, available at http://www.rw.doe.gov/progdocs/nwpa/nwpa.htm (last visited Feb. 15, 2002).

[7] Garrett, supra note 2.

[8] Id.

[9] U.S. Department of Energy, About the Project, at http://www.ymp.gov/about/index.htm (last visited Feb. 15, 2002).

[10] U.S. Environmental Protection Agency, About Yucca Mountain, at http://www.epa.gov/radiation/yucca/about.htm (last visited Feb. 15, 2002).

[11] Bush Approves, supra note 1.

[12] U.S. Environmental Protection Agency, supra note 10.

[13] Id.

[14] Id; For a map of proposed shipping routes, see Alliance for Nuclear Accountability, Yucca Mountain: Not Safe For Nuclear Waste, at http://www.ananuclear.org/yuccaweb.html (last visited Feb. 15, 2002).

[15] 42 U.S.C. § 10135 (b) (2001). On February 18, 2002, Nevada Governor, Kenny Guinn, announced that he will challenge President Bush's decision to approve Yucca Mountain, Nevada, as the federal nuclear storage site, claiming that the administration has failed to demonstrate the safety of the site. Nevada to fight Bush on nuclear waste site, CNN, Feb. 18, 2002, at http://www.cnn.com/2002/US/02/18/yucca.waste/index.html (last visited Feb. 20, 2002). Nevada is in the process of filing three lawsuits based on the "lack of the completed staff work that President Bush made his decision on." Id.

[16] 42 U.S.C. § 10135 (c) (2001).

[17] U.S. Environmental Protection Agency, supra note 10.

[18] Id.

[19] Id.

[20] Id.

[21] Matthew L. Wald, Energy Dept. Recommends Yucca Mountain for Nuclear Burial, N.Y. TIMES, February 15, 2002, available at http://www.nytimes.com/2002/02/15/politics/15YUCC.htm (last visited Feb. 15, 2002).

[22] Id.

[23] Shogren & Gorman, supra note 4.

[24] Bush Approves, supra note 1.

[25] Id.

[26] Alliance for Nuclear Accountability, Endorsement of Yucca Mtn. Nuclear Dump Violates Explicit Bush Campaign Promise; Activists Near DOE Sites Which Would Ship Wastes Will Press Congress to Uphold Nevada Veto, at http://www.ananuclear.org/yuccarelease21502.html (last visited Feb. 15, 2002).

[27] Shogren & Gorman, supra note 4.

[28] Garrett, supra note 2.

[29] Bush approves, supra note 1.

[30] See id.

[31] Shogren & Gorman, supra note 4.

[32] Id.

[33] Id.

[34] Department of Energy, Timeline/Milestones, at http://www.ymp.gov/timeline/index.htm (last visited Feb. 15, 2002).

[35] See infra pp. 1-2.

[36] U.S. Environmental Protection Agency, supra note 9.

[37] See infra p. 3.