Guinn's Veto
The State of Nevada did not agree. In a historical move, Guinn exercised his right to veto the Yucca Mountain project, becoming the first governor to ever veto a presidential decision. On April 8, Guinn issued a strongly worded Notice of Disapproval and Statement of Reasons supporting his veto, in which he called the project "extremely bad science, extremely bad law, and extremely bad public policy."
Following Guinn's veto, the proposed Yucca project was sent to Congress. According to the 1982 Nuclear Waste Policy Act, Congress could override Guinn's veto with a simple majority in both houses. Resolutions to reinstate the repository were accordingly introduced in each House.
Both the House and the Senate held committee meetings and heard testimony before putting Yucca to vote.
Testimony on Yucca Mountain
 Yucca Mountain went to the House of Representatives first. On April 18, 2002, the House Subcommittee on Energy and Air Quality heard testimony from 12 individuals, including prominent Nevada lawmakers and the Secretary of Energy. On April 25, House subcommittees on Highway and Transit and on Railroads followed with a joint hearing about transportation issues involved with the proposed repository. 16 individuals, including Governor Guinn, nuclear industry officials, and transportation experts testified before the committee.
Testimony from both hearings featured strong arguments supporting and opposing the Yucca Mountain repository.
Abraham called Yucca Mountain "critical to our national security" and "an important component of homeland security." He stressed the importance of consolidating waste from 131 sites nationwide to 1 site buried deep in a remote mountain in the Nevada desert.
Nevada lawmakers were quick to point out the fallacy of this ‘one waste, one place' argument. Ensign called it "the government's big lie," remarking that by the time Yucca Mountain has been filled to its capacity of 77,000 tons, nuclear power plants around the country will have produced almost as much new waste as they currently store. "All that moving waste to Yucca will do is create one more large storage facility. But to do that, the cost will be tens of thousands of shipments of deadly radioactive waste on the nation's highways and railroads."
Transportation
Safe transportation of high-level radioactive waste to the Yucca site was one of the most prominent concerns raised in the hearings.
Opponents of the project voiced safety concerns for the millions of people living along or near possible transportation routes to Yucca Mountain. They reminded Congress of the extreme dangers of high-level radiation and noted the possibility of accidents. Even if transportation conditions and vehicles were perfect, there would always be "the human element."
Several witnesses referred to the July 2001 Baltimore tunnel accident, where a CSX freight train carrying hazardous waste derailed and set off fires that burned for five days. A study sponsored by the State of Nevada determined that if a train carrying nuclear waste were involved in a similar accident, just one cask releasing radioactive material could cause between 4,000 and 28,000 latent cancer fatalities over a period of 50 years, and such an accident could cost $13 billion to clean up.
Nevada Representative Shelley Berkley referred to each nuclear waste shipment as "mobile Chernobyls."
Supporters of Yucca Mountain maintained, however, that transportation was not an issue. Lake Barrett of the DOE, Ellen Englemen of the Department of Transportation (DOT), and John Colvin of the Nuclear Energy Institute insisted that transportation of spent fuel to Yucca would be safe and secure. They pointed to DOE's thirty-year track record of safe radioactive waste transportation. Barrett stated there would only be 175 shipments a year to Yucca and pointed out that 650 safe shipments of nuclear waste were made annually in both France and Britain.
However, Robert Halstead, a transportation advisor for the State of Nevada, testified that shipments would far exceed 175 a year. Using DOE's own numbers, he calculated that actual shipments would average 370 to 1,240 per year, depending on the number of shipments made by truck versus train.
Terrorism
Another serious concern raised was the threat of terrorist attacks on nuclear waste shipments, especially after the events of September 11th.
Dr. James Ballard, a terrorism expert from Grand Valley State University in Michigan, testified that transportation terrorism was a "very real threat." He explained, "The transportation effort as proposed will ensure a target rich environment wherein a terrorist could pick and chose the time and place for an attack." He described how nuclear waste shipments could serve as symbolic targets not only to terrorists but also to domestic groups protesting nuclear power and waste transportation.
Ensign attested that every truckload of nuclear waste going to Yucca Mountain was a potential "dirty bomb."
Energy Secretary Abraham, however, said that critics were "forgetting the obvious." He reminded listeners of the thousands of tons of nuclear waste currently residing in temporary storage facilities near major cities and waterways. He asserted that spent fuel in transit would be more secure than the spent fuel in those stationary sites. Abraham also accused Yucca opponents of using the transportation issue to inspire fear to their advantage.
Nevada lawmakers maintained that DOE was not doing enough to alleviate fears. Governor Guinn pointed out that the DOE had never done an analysis on terrorism risks associated with mass transportation. Several others protested that neither the DOE nor the Nuclear Regulatory Commission (NRC) had done any real-life testing of waste transportation casks.
DOE officials asserted that computer simulation cask-testing was sufficient and that transportation routes and other details would be worked out after site approval. But for Yucca opponents, these assurances were insufficient. "We are being asked to accept DOE platitudes and industry assurances in response to our questions and concerns, but that is not good enough," said Governor Guinn, "and it will not be good enough when the first problems arise, and we know they will."
The Science of Yucca Mountain
Opponents of Yucca Mountain also called into question the safety and scientific soundness of the site. Nevada Representative Jim Gibbons, who has a bachelor of science degree in geology, asserted that "Yucca Mountain is not, nor will ever be, geologically sound." He pointed out that no one can predict the next 10,000 years of seismic, volcanic, or meteorological activity, especially in a highly active geological area like Nevada. "Regardless of what the DOE crystal ball may show, the future stability of Yucca Mountain is in question – even by its own scientists."
Ensign called the decision to dump the waste in Nevada as "blatantly political," not based on science: "Only junk science could explain the logic of storing thousands of tons of dangerous, radioactive waste on an earthquake fault-line." He also cited the danger of Yucca's underground water flow being contaminated by radiation.
Abraham and other Yucca proponents testified, however, that the site would be thoroughly safe and scientifically "sound." Abraham affirmed that Yucca met up to "extremely stringent" safety standards set by the EPA for the health of citizens living near the site. John Colvin, President and CEO of the Nuclear Energy Institute, asserted that "twenty years of world-class study by hundreds of expert scientists and engineers – 36 million hours in all – have produced an indisputable body of evidence supporting the designation of Yucca Mountain as a repository site."
But not all scientists found the evidence "indisputable." The Nuclear Waste Technical Review Board (NWTRB), an organization of presidentially-appointed scientists who serve as a DOE watchdog on Yucca Mountain, had critical comments about the program. Board chairman Dr. Jared Cohon testified that after performing an independent review of the project, the NWTRB found DOE's Yucca performance estimates "weak to moderate."
Other issues discussed included project costs and Yucca alternatives. Those opposed to the project suggested that nuclear waste remain where it is until the government can come up with a better option. According to the NRC, the waste could safely be stored on-site for up to 100 years. Yucca supporters, however, argued that space was running out and the Government had already made a deal with the nuclear industry to start taking waste by 1998. The Government is now facing billions of dollars in liability claims because it has not lived up to those agreements.
After both the hearings had concluded, the House committees approved Yucca Mountain with overwhelming majorities despite concerns raised in the testimonies. On May 8, the resolution moved to the House floor. The House voted 306-117 to override Governor Guinn's veto.
The Senate
The proposed waste repository then moved to the Senate, where the Committee on Energy and Natural Resources held three hearings on May 16, 22, and 23. Issues discussed in the testimonies were similar to those brought up in the House hearings, and many of those who had testified before the House, including Abraham, Guinn, Halstead, Cohon, and Ballard, testified before the Senate.
Transportation safety was again a key issue. "When we ask the question, is terrorism a threat to these shipments, the answer is a definitive yes," said Ballard frankly. "Terrorism is changing," he said, referring to September 11th. "While no assurances can be made for the future, one thing is certain – if we offer an attractive target, someone will make an attempt to attack it…. Do not give them the easy opportunity to prove us unprepared once again."
Witnesses also talked about what the next step would be if the Senate were to approve Yucca. Under federal law, the DOE is required to obtain a license from the Nuclear Regulatory Commission before they can start building the repository. The NRC's Richard A. Meserve testified, however, that the commission had found 293 technical and scientific ‘uncertainties' about the project that must be resolved before a license could be issued.
These ‘uncertainties' involve key aspects of the Yucca Mountain site, including its physical properties, the expected lifetime of waste containers, and the supporting information from mathematical models used to determine the site's ability to successfully store waste.
The DOE said 38 of the 293 issues had already been settled and claimed the rest would be addressed before the Department submitted their application.
But the General Accounting Office, represented by Ms. Gary Jones, said DOE's own work plan showed that only 10 of the remaining 255 issues would be resolved by then. Jones also accused DOE of comprehensive mismanagement, saying the Yucca project was over-budget and behind schedule. According to the Nuclear Waste Policy Act, DOE is supposed to submit its application to the NRC within 90 days of Congressional approval. However, the DOE admitted itself that the earliest the application would be ready is December 2004. Jones predicted that this would delay the repository's target opening date of 2010, thus requiring an even larger budget for the DOE and increasing the billions of dollars in libel already owed to nuclear power companies.
More importantly, Jones pointed out that essentially the same information is needed for a site recommendation and a license application. She concluded that the site recommendation was therefore premature because DOE lacked the proper information.
After the hearings concluded, the Senate committee proved more wary of the Yucca repository than their House counterparts. On June 6, the committee passed the resolution with a much narrower margin than was expected, 13-10. Nevada Senators Reid and Ensign were at first more hopeful that, once educated on the matter, the majority of Senators would vote against Yucca. However, it soon became clear that this would not be the case.
Despite an attempt by Majority Leader Tom Daschle, Reid, and Ensign to block the issue from ever coming to a vote in the Senate, proponents of Yucca pushed the project to the floor on July 9, historically going against the Majority Leader to do so. The Senate approved Yucca with a voice vote after passing a procedural motion to proceed, 60-39.
 Reid, Ensign, and Governor Guinn were very disappointed, but they say the battle is not over yet. They vow to continue to fight the repository through other means, including
funding bills, oversight of regulatory agencies, and litigation. The State of Nevada has recently filed several lawsuits against the DOE, the NRC, and the EPA.
"The U.S. Senate vote today is the beginning of Nevada's legal and regulatory fight to stop the Yucca Mountain Project," Guinn said on July 9. "Now the process moves to the federal courts, where the playing field is level and Nevada's factual, scientific arguments will be heard by impartial judges." He added, "The Energy Department won't be able to hide behind its political allies in Congress when the courts begin their review of DOE's record on this project. We are confident that we will prevail."
- Click here to read congressional testimonies in full
- Click here for up-to-date news on Nevada lawsuits against Yucca Mountain
Nevada Lawsuits Fight Yucca Mountain
 Despite recent congressional approval, the battle over whether to put a nuclear waste dump at Yucca Mountain is not over yet. Over the past year, the State of Nevada has filed major lawsuits against the Department of Energy (DOE), the President of the United States, the Environmental Protection Agency (EPA), and the Nuclear Regulatory Commission (NRC). The lawsuits ask the courts to declare President Bush's designation of Yucca Mountain invalid because the DOE, EPA, and NRC violated the law throughout the Yucca Mountain site recommendation and approval process. They also request that the courts halt construction of the repository pending final outcomes of the cases.
All lawsuits were filed in either the Ninth Circuit Court of Appeals or the District of Columbia Court of Appeals. In addition to the Nevada Attorney General's office, the State of Nevada has hired two law firms to represent them in court: the law office of Antonio Rossmann, San Francisco, CA; and Egan & Associates, PLLC, McLean, VA.
Environmental Impact Statement Lawsuit
The most recent lawsuit filed by the State of Nevada was on June 6, 2002, against Secretary of Energy Spencer Abraham and President George W. Bush. The suit challenges the DOE's Final Environmental Impact Statement (FEIS) on the Yucca Mountain repository.
The State of Nevada contends the FEIS violates the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA). The suit also challenges Abraham and Bush's decisions to recommend Yucca Mountain based on the FEIS.
Nevada cites multiple deficiencies of the DOE's Final Environmental Impact Statement. Among other things, the FEIS:
- fails to disclose that the Yucca Mountain site would not be a geologic repository as defined in NWPA;
- fails to address comments made by Nevada officials in response to the 1999 Draft Environmental Impact Statement;
- fails to address critical impacts and possible sabotage scenarios;
- fails to address Yucca alternatives, including a PECO no action alternative; and
- fails to include vital transportation information.
For example, the State says the FEIS is premature because it does not include transportation routes for the spent fuel. Moreover, the report analyzes impacts from transporting waste from only 77 sites in 37 states. In reality, there are 131 sites in 39 states, as Energy Secretary Abraham confirmed in his recommendation to the President and later testified in Congress.
The lawsuit also points out that the FEIS fails to disclose whether the Yucca repository will be high-temperature or low-temperature. This is a pivotal decision that will determine the entire structure and physical layout of the repository.
The suit also alleges that Energy Secretary Abraham deliberately withheld the FEIS from Nevada and the public. Abraham released the FEIS with his recommendation to the President, violating NEPA regulations by not providing a mandatory 30-day public review period.
The lawsuit concludes that the Final Environmental Impact Statement (FEIS) is full of crucial information gaps, ignores public concerns, and does not adequately predict the impacts of a Yucca Mountain high-level waste repository. Nevada also challenges President Bush's approval of the site based on the faulty FEIS.
Guidelines Lawsuit
Another lawsuit Nevada has filed against the Department of Energy concerns DOE guidelines about Yucca Mountain geologic suitability.
 When the Nuclear Waste Policy Act (NWPA) was originally written in 1982, both Congress and DOE agreed that deep geologic isolation was the required form of containment for the nation's high-level nuclear waste. Nuclear waste remains highly radioactive for hundreds of thousands of years, and no known form of man-made barrier or container is capable of serving as a reliable and safe permanent waste container for that long. Consequently, NWPA expressly mandated that geologic considerations be the "primary criteria" for the selection of the repository site.
DOE's guidelines for selection of the site originally reflected this mandate. However, in 1999, the DOE "rewrote" its guidelines to rely primarily on engineered waste packages, not on geologic disposal.
The lawsuit, filed on December 17, 2001, contends that after several years of study, the DOE discovered Yucca Mountain was not geologically suitable due to water infiltration, seismic activity, and volcanism. However, instead of notifying Congress and the Secretary of Energy that Yucca Mountain was unsuitable, the DOE merely changed the rules by rewriting their guidelines.
Environmental Protection Agency Lawsuit
The Department of Energy is not the only agency being sued by Nevada, however. Nevada filed a lawsuit against the Environmental Protection Agency (EPA) on June 27, 2001.
The EPA was responsible for setting the health and safety standards for residents living near the Yucca Mountain site. Energy Secretary Abraham calls these standards ‘safe' and extremely ‘stringent'. However, the State of Nevada contends the EPA's standards do not adequately limit radiation exposure. The standards would allow DOE to use 18 kilometers (11 miles) of the Amargosa aquifer for dilution and dispersion of radiation from the repository.
Nevada claims the EPA did not take into account future growth rates and other changes while predicting future impacts on Nevadans living near the site. Notably, in the 2000 census, Nevada was shown to be the fastest growing state in the nation.
The lawsuit contends that by failing to set adequate health and safety standards for Yucca Mountain, the EPA violated the Nuclear Waste Policy Act and other laws.
Nuclear Regulatory Commission Lawsuit
In conjunction with Clark County and the City of Las Vegas, the State of Nevada has additionally filed a lawsuit against the Nuclear Regulatory Commission (NRC). The NRC is responsible for granting licenses to DOE for construction and operation of Yucca Mountain. This case says the NRC acted illegally in revising regulations that govern the criteria to be used for licensing the Yucca Mountain repository.
Nevada Protection Fund
With all of these lawsuits, Nevada hopes to defeat, or at the very least, stall the Yucca Mountain project indefinitely. But what chance does Nevada really have in the courts?
Both Governor Kenny Guinn and State Attorney General Frankie Sue Del Papa have described it as a David versus Goliath fight, pointing out that the federal government and the nuclear energy industry are formidable opponents with deep financial pockets. "These people are just unbelievable," Guinn told the Las Vegas Sun, referring to the nuclear energy industry. "They don't have a budget and they've hired the best law firm they can."
To help finance Nevada's anti-Yucca battle, Guinn has established the Nevada Protection Fund. The Fund so far totals over $6 million: the 2001 Nevada Legislature appropriated $4 million, and the rest was donated by Nevada cities, counties, and individuals. The funds are being used to hire lawyers and lobbyists and to pay for opposition to the Yucca repository program in states likely to be negatively affected by waste transportation routes.
Case Status
None of the court cases filed by Nevada have yet come up for review, except for the June 2001 lawsuit against the EPA. In March 2002, the U.S. Court of Appeals in Washington declined to dismiss the case as was requested by the EPA and its lawyers. On March 12, the court set a schedule for briefs to be submitted about the lawsuit.
In Brief . . . . Recent Nuclear News
What's the hurry?. . . In a June agency conference, Nuclear Regulatory Commission Chairman Richard Meserve said if the Senate were to kill the Yucca Mountain project, nuclear waste could remain safely stored at power plants for "decades" to come. "If Yucca Mountain were to fail because of congressional action, that does not mean all of a sudden from a policy point of view that the country is at a stalemate and is confronting imminent disaster," Meserve said, responding to a question about Yucca Mountain alternatives. Meserve admitted that expanding onsite storage would not be welcomed by utilities, but he said it could be done if the nation had to look for another nuclear waste repository site. "We do have the capacity to store the materials safely for a period of decades." (Las Vegas Review-Journal, 6/14/02)
FEIS not available in paper . . . Despite promises to provide the public with hard copies of the Yucca Mountain Final Environmental Impact Statement (FEIS), the DOE released the report almost solely in electronic form. Nevadans who would like to see if their comments were answered can either request a CD or download the document off the internet. The lack of paper copies presents a problem to many Eureka county residents, who do not have computers or access to one. Morever, the 10,000 page document is a cumbersome file that often crashes low-capacity computers.
In June, the Eureka County Board of Commissioners sent a letter to the DOE requesting paper copies of the FEIS to be made available to its citizens. The letter pointed out that residents of Idaho were given the choice between paper and electronic copies of DOE's Idaho EIS reports. Eureka County asks the same consideration be shown to its residents. Paper copies are available at the public works office in Eureka and at the Crescent Valley Town Center.
NRC to examine testing of casks used to haul waste . . . In June, the Nuclear Regulatory Commission relented to pressure from Nevada officials and other Yucca Mountain critics and agreed to perform more testing on casks that will be used to haul nuclear waste across the country. NRC and nuclear industry officials have said new tests aren't necessary, because scale-model cask tests and computer simulations give them an accurate portrait of how waste containers would hold up in a fire, in water, in a fall, and even under terrorist attack.
But Nevada officials have long said the NRC should conduct full-scale stress tests on casks because their lethal radioactive contents will be shipped past millions of homes and thousands of schools and hospitals.
The NRC has hired Sandia National Laboratories, which has conducted a number of cask tests over the year, to do a new round of experiments in which casks would be burned and dropped. These tests would likely be completed in the summer and fall of 2004, but before then, a number of issues must be decided, including whether to use full-scale casks or smaller-scale models. (Las Vegas Sun 6/19/02)
Russia Plans Nuclear Dump for Soviet Test Site . . . In May, the Russian Ministry of Atomic Power (Minatom) announced that the small island of Novaya Zemlya, a former Soviet nuclear test site, will serve as an international disposal site for nuclear waste. Russia plans to earn up to $21 billion by importing other countries' nuclear waste for burial. Construction of the facility on the uninhabited arctic island is scheduled for completion in 3 years. (Environment News Service, 5/29/02)
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Truck vs. Rail Issue Is Open . . . DOE's Final Environmental Impact Statement on the Yucca Mountain project, released in February 2002, indicated a preference for a ‘mostly rail scenario' of nuclear waste transportation to the repository. DOE says shipping high-level waste and spent fuel by train is safer and requires less shipments than by truck. However, the FEIS did not specify exact transportation routes, nor did it make a final decision on the amount of truck-versus-train shipments. Another issue left open is whether to use dedicated trains or ship spent fuel with other freight on regular trains. Dedicated trains, though much costlier, would be safer. (Nuclear Waste News, 5/9/02)
4.4 earthquake hits near Yucca . . . On June 14, 2002, a 4.4 magnitude earthquake rattled Little Skull Mountain in the Armagosa Valley, about 12 miles away from Yucca Mountain. The site, however, was apparently unharmed. A DOE-issued press release the same day said, "There was no damage to any Yucca Mountain Project facilities, structures or the underground Exploratory Studies Facility."
Environmentalists, however, were skeptical. "How could the DOE have assessed that no damage was done to the entire compound within several hours of the earthquake?" said Tyson Slocum, research director with Public Citizen's Critical Mass Energy and Environment Program.
Public Citizen filed a request to review all of DOE's damage assessment records. "Public Citizen finds it curious that such a confident assessment was made just hours after the earthquake," the letter addressed to Yucca Mountain Project Manager Russ Dyer said. (Las Vegas Sun 6/14/02 and 7/5/02)
License application under review for storage facility at Skull Valley, Utah . . . Private Fuel Storage, LLC, a consortium of eight utilities that operate nuclear power plants, has applied for a license to build and run a nuclear waste storage area on the Goshute Indian Reservation in Skull Valley, Utah (Las Vegas Review Journal 4/9/02) .
The license application is currently undergoing review by the Nuclear Regulatory Commission's Atomic Safety and Licensing Board. The Board held hearings on the proposed spent nuclear fuel storage facility in April and May and is expected to make a recommendation to the NRC this fall. The NRC will then have to decide whether to grant a license for the facility. (San Francisco Gate 4/26/02)
Independent Institute Recommends Alternative Nuclear Waste Plan . . . The Institute for Energy and Environmental Research (IEER) advocates an alternative to nuclear waste storage: HOSS (Interim Hardened On-Site Storage). HOSS would require nuclear facilities to store waste onsite in hard, resistant casks instead of the dry casks and spent fuel pools currently used. The resilient HOSS would be able to withstand terrorist attacks and other off-site releases, and it would allow the government to take responsibility for wastes it promised to start taking in 1998. But HOSS would only be a temporary solution, 50-60 years. In the meantime, IEER suggests the government complete much needed further study of geologic containment and transportation of high-level nuclear waste. (IEER press release, 6/4/02)
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PECO No-Action Alternative
Governor Guinn and other Nevada officials have urged lawmakers and utilities to pursue a no-action alternative to waste storage at Yucca Mountain similar to what occurred at the Peach Bottom Plant in Pennsylvania. In July 2000, DOE and PECO Energy reached an agreement where the government would take title to the spent nuclear fuel, but would leave it in dry storage at PECO's site.
Nevada officials say these kind of agreements would end utility lawsuits against the government, allow utilities to take liabilities off their account books, end utility rate bases and state utility commissions' jurisdiction and lawsuits, allow the government to search for a new repository or alternative spent fuel management technologies, preserve the future use of spent fuel as an energy resource, and save federal money rather than spending it on Yucca Mountain. (Nuclear Waste News, 4/11/02)
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