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WASHINGTON -- In a last-ditch effort to stop a nuclear dump
in Nevada, the state told a federal appeals court the government has
failed to ensure that thousands of years from now people will be
protected from radiation.
Two of the three judges hearing the case asked government lawyers
why the federal standards for radioactive releases for the Yucca
Mountain dump were pegged to 10,000 years into the future when
scientists say the material will be most dangerous many thousands of
years after that.
The 3 1/2 hours of arguments before the appeals court panel marked
the first time a federal court has heard the merits of President
Bush's decision in 2002 to select a ridge of volcanic rock 90 miles
from Las Vegas as the place to entomb 77,000 tons of used rector fuel
from the nation's commercial power plants.
Congress affirmed Bush's decision in July 2002. Nevada officials
argued for the decision to be overturned, saying Congress violated
the state's constitutional rights when it singled out Nevada.
The three-judge panel of the U.S. Court of Appeals won't decide
the case until later this year. Two of the judges made their views on
several key issues clear during exchanges with Justice Department and
They threw cold water on Nevada's hopes of challenging the way the
Energy Department and later the White House decided to select Yucca
Judge Harry Edwards, the senior jurist on the panel, said that's
no longer an issue because Congress passed a law affirming Bush's
But the judges accepted more openly some other arguments brought
by opponents of the proposed nuclear waste site.
``All of the legal wrongs (in the government's decision) ... stem
from the fact that the waste will not be isolated,'' Geoffrey Fettus,
an attorney for the Natural Resources Defense Council, told the
court. The NRDC filed one of the 13 lawsuits that have been
consolidated by the court.
Opponents contend that the Environmental Protection Agency's
radiation standard for the site was inadequate because it would be
applicable to only 10,000 years into the future. Critics cited a
National Academy of Sciences finding that said the peak radiation
doses from some of the isotopes would be most dangerous up to 300,000
Judge David Talen said the study clearly ``rejected the
10,000-year limit'' for radiation monitoring, but the EPA adopted it
The report is ``absolutely clear ... that 10,000 years is
incorrect,'' added Edwards. ``An agency does not have the authority
to do whatever it wants to.''
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 issue of time is important because the Energy Department
acknowledges that it will rely on both the geology of the Yucca site
and on engineered barriers to keep radioactivity from leaking into
the environment. Scientists say that after 10,000 years, the
performance of the engineered barriers is increasingly questionable.
After the hearing, Joe Egan, the lead attorney for Nevada, said he
thought the state had won on some issues and lost on others.
He described as ``clear victories'' an assertion that the
government's environmental impact assessment would be subject to
judicial review when it is considered by the Nuclear Regulatory
Commission as part of the Yucca licensing process.
The judges' comments on EPA radiation standards were encouraging,
he said, noting that this was the first time a court has closely
examined the legal merits of the waste dump.
Energy Department spokesman Joe Davis said the department would
proceed with a license application for the waste site late this year.
``We're confident our science is sound,'' said Davis.
The Nuclear Regulatory Commission permitting process could take
three to four years. Plans call for the facility to begin accepting
waste by 2010.
Congress in 1987 declared Yucca Mountain as the only site to be
studied further for permanent waste repository.
Congress cannot single out a state .... in such a way,'' Charles
Cooper, a lawyer for Nevada, told the panel. But the judges were far
The waste site will be on federal land, noted Edwards: ``It's
their property.'' The argument would only hold if the decision to put
the site there was found to be irrational, the judge said.
The court has consolidated 13 separate lawsuits, including nine
filed by the state or other Nevada jurisdictions. The judges did not
say when they will reach a decision.
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