Friday, September 16, 2011

Yucca Mountain Dies, or Maybe It Doesn’t

Last Friday, the Nuclear Regulatory Commission added another twist to the already rather messy legal saga of Yucca Mountain.  The Commission deadlocked in a vote on whether the Department of Energy had the legal ability to withdraw its application for site approval.  That leaves the project’s legal status in doubt, and the near-inevitability of additional litigation further clouds the picture.  The project’s financial status, however, remains clear, and the NRC, citing “fiscal limitations,” also voted to close down its review of DOE's license application.

Based on press coverage and political rhetoric, one might think that political considerations alone are driving Yucca Mountain’s apparent demise.  The administration’s position, the story goes, derives from Harry Reid’s clout and Nevada’s swing state status.   But while there’s no doubt  that the political calculus is very, very important, there is another part of the story.  The legal hurdles to continuing with the Yucca Mountain project were substantial, and perhaps even more substantial than the legal complications involved in shutting it down.

Before I explain, a little disclosure.  From 2003 to 2007, I worked on the legal team Nevada had assembled to fight the repository.  What follows reflects my own judgment and isn’t an attempt to state Nevada’s legal position, but I, like any lawyer, probably view my own former clients’ positions through rose-tinted lenses.  Even with some accounting for my own biases, however, I still think Yucca Mountain was in legal trouble.

To understand why, one needs to know a little about the curious legal structure of the licensing process (discussed in more detail here).  In 1982, in the Nuclear Waste Policy Act, Congress initially set forth a process for choosing a disposal site for high-level nuclear waste.  The Department of Energy was to select a site and to develop and, if appropriate, submit a license application for that site, and the Nuclear Regulatory Commission was to review that application.  The NRC would evaluate the consistency of the application with safety standards set by EPA and by the NRC.  In 1987, Congress designated Yucca Mountain as the sole site to be studied for a national nuclear waste repository.  Then, in the Energy Policy Act of 1992, Congress imposed some additional constraints on the process of setting safety standards.  Most importantly, the standards were to be “based upon and consistent with the findings and recommendations" in a report prepared by the National Academy of Sciences.

That last requirement proved crucially important.  In their first attempts at Yucca Mountain safety standards, EPA and the NRC tried to set standards that would expire after 10,000 years.  That approach would have meant that even if DOE’s modelers predicted spikes in radiation levels after 10,000 years, the repository still could be licensed.  But in NEI v. EPA, 373 F.3d 1251 (D.C. Cir. 2004), the D.C. Circuit held that the agencies’ approach was not “based upon and consistent with” the NAS report, which had called for sustaining the standards through the time period with the highest predicted doses.  The court’s decision sent EPA, the NRC, and DOE back to the drawing board, and without a safety standard, the repository could not be licensed.

The decision put EPA and the NRC in a difficult spot.  The simplest response to the D.C. Circuit’s decision would have been to simply extend the pre-10,000 year safety standards through the period of peak dose.  But if EPA and the NRC did that, the license application would almost surely fail, for DOE’s models predicted doses would remain well above that standard for hundreds of thousands of years.  Only during the initial period, when the modelers predicted that engineered containment systems would keep the waste isolated from groundwater, were doses predicted to remain low.  In the Bush Administration, at least, passing a standard that the site couldn’t meet was a non-starter.   But writing higher standard the license application could actually meet would have meant abandoning long-established nuclear regulatory practices, disavowing past reasoning, and creating other potential inconsistencies with the NRC report, among other problems.  In a 2005 proposed rule, EPA tried that latter approach, and the result was a two-tiered standard (15 millirems before 10,000 years; 100 millirems afterward) that agency lawyers cannot have had any desire to defend.  In 2008, the Bush Administration finalized the proposed standard, retreating from some of the legally questionable rationales but retaining a dramatic difference between the pre- and post-10,000 year standards.  That would have left the Obama Administration with a difficult legal choice if it had wanted to proceed with the repository: it could try to license the repository under dubious legal standards, or could withdraw those standards and try to substitute something else.

The point of all of this is not that these legal challenges actually are driving Yucca Mountain’s demise.  Politics and policy preferences probably mean more to this presidential administration—to any presidential administration, really—than the technical constraints of environmental law.  But they clearly did complicate the Bush Administration’s efforts to promote the repository.  And they do provide a reasonable justification, if not the actual justification, for the Obama Administration’s unwillingness to do the same.

- Dave Owen

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