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High-level Nuclear Waste Legislation (10-5-06)

For twenty years, the Department of Energy (DOE) has been working to develop a central repository for spent nuclear fuel and defense-related high-level radioactive waste. Since 1987, the only site under consideration has been Yucca Mountain in southern Nevada adjacent to the Nevada Test Site. DOE has spent over $6 billion characterizing the site's suitability for long-term containment of nuclear waste. With the repository not scheduled to open until 2010 at the earliest, spent nuclear fuel is presently stored at eighty-one commercial reactor facilities around the country as well as a number of DOE former weapons production sites. President Bush approved the Yucca Mountain site in 2002, prompting formal opposition from the State of Nevada that Congress subsequently overrode. After the Yucca Mountain project moved into the licensing and construction phase, it experienced numerous legal and funding roadblocks. The initial goal of opening the repository by 2010 now seems unlikely.

Moving Forward on Yucca Mountain Nuclear Waste Repository
Efforts to create a nuclear waste repository at Yucca Mountain, Nevada have received renewed attention from Congress since an ambitious new director was appointed to the Office of Civilian Radioactive Waste Management in the Department of Energy (DOE). Director Edward 'Ward' Sproat III has constructed a timeline for the project predicting receipt of nuclear waste beginning March 31, 2017. He has also submitted legislation to the House and the Senate containing measures deemed necessary for the successful and timely completion of the project. The Nuclear Fuel Management and Disposal Act (H.R. 5360 and S. 2589) would provide the funding and authority that DOE needs to complete the repository at Yucca Mountain.

However, the legislation is not without controversy: the Act calls for the Yucca Mountain project to be declared "in the public interest", thereby forcing the state of Nevada to yield water rights to DOE. Opponents of the project say that allowing the federal government to supersede Nevada's ability to control its own water resources sets a dangerous precedent that should be of concern to every state in the union. The legislation does not address the highly contentious issue of interim storage. The nation's 40,000 metric tons of nuclear waste is currently being stored at nuclear facilities across the country, causing concern over rising costs and inconsistent security. Congress is divided over whether centralized interim storage should be pursued to mitigate these concerns, or whether resources should instead be focused entirely on completing Yucca Mountain on schedule.

To view the text of the House legislation, H.R. 5360, click here.
To view the text of the Senate legislation, S.2589, click here. (10/5/06)

Senators Introduce New Yucca Legislation
On April 6, 2006, Senate Energy and Natural Resources Committee Chair Pete Domenici (R-NM) and Senate Environment and Public Works Committee Chair James Inhofe (R-OK) announced joint sponsorship of the Nuclear Fuel Management and Disposal Act (S.2589), a bill drafted by the Department of Energy (DOE) to revitalize the Yucca Mountain nuclear waste repository program. Provisions in the bill would "facilitate the licensing, construction, and operation of a repository at Yucca Mountain," Energy Secretary Samuel Bodman wrote in a letter to Vice President Dick Cheney accompanying the bill.

One of the primary provisions in the legislation would remove the 70,000 metric ton limit on the amount of nuclear waste that can be stored in the repository. According to a 2002 Environmental Impact Statement, the site has the capacity to store 120,000 metric tons of waste. Without lifting the 70,000 ton cap, the repository will likely be oversubscribed as soon as it opens.

Further provisions in the bill would: remove 147,000 acres of land around the repository from public use to comply with Nuclear Regulatory Commission (NRC) licensing requirements; authorize construction of a rail line connecting Yucca Mountain with the national rail network; give DOE the authority to regulate the transportation of radioactive materials; reform the funding system to give DOE easier access to the Nuclear Waste Trust Fund; eliminate "essentially duplicative regulation" by exempting nuclear waste stored in NRC-certified containers from federal, state, and local regulation; authorize the Environmental Protection Agency to administer air quality permits; and ensure adequate water supplies for the nuclear waste activities.

DOE officials are optimistic that the Congress will eventually pass the legislation. "We believe it is very important to get Yucca Mountain open so we can start moving waste from the communities all around the country where it exists," said Deputy Energy Secretary Clay Sell. "We're going to work with our congressional allies and supporters to get it passed as quickly as possible."

Despite sponsoring the DOE bill, Domenici is planning to introduce his own legislation on the repository, which he called three-fourths complete in early April. He is currently in the midst of conversations with Energy and Natural Resources Committee Ranking Member Jeff Bingaman (D-NM) and Senate Minority Leader Harry Reid (D-NV), an opponent of the Yucca Mountain Project.

To view the text of the legislation, a summary and a sectional analysis of the bill, and the letter from Energy Secretary Bodman to Vice President Cheney, click here.(4/27/06)

EPA Issues Public Safety Standards for Yucca Mountain
On August 9, 2005, the Environmental Protection Agency (EPA) issued its new public safety standards for the Yucca Mountain nuclear waste repository, overcoming what has been the most significant obstacle to beginning the licensing process for the site. When a federal appellate court validated plans for a Yucca Mountain repository in July, 2004, the ruling came with the caveat that EPA would have to revise its public safety standards for the site, a requirement that has contributed to delays in opening the repository.

The new standard sets the acceptable level of radiation exposure for an individual living near the site to 15 millirem per year (roughly equivalent to three chest X-rays) for up to 10,000 years after the repository closes. The two-tiered standard then sets an additional maximum dose of 350 millirem above background per year for up to 1 million years. These standards are designed to address all potential sources of exposure, including air, groundwater and soil. According to an EPA press release, the new standards also require the repository to "withstand the effects of earthquakes, volcanoes and significantly increased rainfall while safely containing the waste during the 1 million-year period."

EPA Assistant Administrator for Air and Radiation, Jeffrey Holmstead, stated that the EPA employed "the best available scientific approaches" in crafting the standard. According to an article in Greenwire, a spokesperson for the Department of Energy also expressed confidence that DOE would be able to meet the millirem targets in their licensing demonstration. However, Nevada Governor Kenny Guinn and Attorney General Brian Sandoval quickly condemned the new standards, calling the ruling "a snub to the scientific community and federal appeals court in Washington." Governor Guinn said, "I can't imagine how they could have done anything to make themselves more vulnerable in the court of law as well as the court of science," Guinn added. "This is junk science at its worst."

According to Governor Guinn, the standard wrongly tolerates the level of "natural background" radiation exposure and "lets future residents of Nevada suffer 100 times more radiation exposure from releases than what the federal government currently permits for residents living near nuclear power plants."

According to Greenwire, the Department of Energy did not release an expected target date for filing their license application, but the agency will likely file the application by early next year.

More EPA documents and information: http://www.epa.gov/radiation/yucca/
Nevada Governor's Response: http://gov.state.nv.us/pr/2005/PR_2005-08-09YUCCA.htm (9/2/05)

DOE Discloses Possible Data Manipulation at Yucca Mountain
On March 16, 2005, the Department of Energy (DOE) disclosed the existence of several emails that suggest rainfall and water infiltration data for the Yucca Mountain nuclear waste repository site may have been manipulated to meet quality assurance measures. Employees at Bechtel SAIC Company, LLC, Yucca's primary managing and operating contractor, uncovered the emails while sifting through thousands of documents that must be included in the licensing support network for the project's license application. DOE is in the process of refining a draft of the license application, which must include all relevant documentation in order to receive approval. Ted Garrish, Deputy Director of DOE's Office of Civilian Radioactive Waste Management, stated in appropriations hearings earlier this year that DOE should be ready to submit the license application to the Nuclear Regulatory Commission (NRC) for review by the end of 2005.

Representative Jon Porter (R-NV), Chairman of the House Government Reform Subcommittee on Federal Workforce and Agency Organization, requested that the documents be submitted to his subcommittee, and posted the emails on the subcommittee's website. In the emails, employees with the U.S. Geological Survey express frustration with the quality assurance guidelines, which are based on NRC requirements, and allude to fudging certain information. Porter has organized a series of hearings to investigate the extent of damage caused by the recent allegations. Nevada's congressional delegation and other state officials are also building their case against the repository; on April 5, Senators Harry Reid (D-NV) and John Ensign (R-NV) wrote Energy Secretary Samuel Bodman, demanding a complete halt to the project. (4/11/05)

The use of deep geologic repositories as a means to isolate radioactive waste from the environment was recommended in 1957 by the National Academy of Sciences (NAS). According to the report, an ideal repository would be permanent, contain passive hydrologic and geochemical properties, be capable of safely storing the waste until it decays to nonhazardous levels, and contain a system of independently engineered barriers to enhance the geologic characteristics. As an ideal material for a repository, NAS recommended a thick salt formation because salt is hard, flexible (allowing fractures to heal themselves), and less permeable to water migration.

The first federal policy to deal with spent nuclear fuel and high-level radioactive waste commenced in 1982 when Congress passed the Nuclear Waste Policy Act (NWPA). The Environmental Protection Agency (EPA) ruled that the minimum time a permanent nuclear waste repository should be capable of isolating waste was at least 10,000 years. In 1987, the NWPA was amended to declare Yucca Mountain the only site to be considered for further study. Opposition to the Yucca Mountain site immediately surfaced with many citing concerns over the site's proximity to Las Vegas, transportation of waste to the site, potential seismic activity, and groundwater infiltration. The 1987 amendments to the NWPA mandated that Yucca Mountain open in 1998, but opposition from politicians and technical difficulties have caused construction delays, moving the opening date to 2010.

Yucca Mountain will have to meet strict standards to help ensure the safety of people living in the region, the environment, and national security. On June 6, 2001, EPA released its final public health and environmental radiation protection standards for Yucca Mountain. These standards set the levels of radiation exposure that are acceptable from groundwater, air, and soil in the areas surrounding the repository. The stringent standards would limit human exposure from all sources of radiation to less than 15 millirems (mrem) per year, with a separate groundwater standard of 4 mrem per year to be measured 11 miles from the site. The security of Yucca Mountain has also gained increased attention since September 11, 2001.

On May 8th, the full House of Representatives voted 306-117 in favor of the Yucca Mountain site, over the objections of Nevada's Governor Kenny Guinn. The Senate concurred on July 9th with a vote of 60-39, moving the Yucca Mountain project into the licensing phase, under the jurisdiction of the U.S. Nuclear Regulatory Commission.

The project was then challenged by the state of Nevada in January of 2004. Lawyers told the court that Yucca Mountain is not suitable to handle the radionuclides that could seep into groundwater sources thousands of years from now. The EPA only evaluated the site for 10,000 years in the future despite recommendations from the National Academy of Sciences to evaluate the site for 300,000 years when the waste will be more hazardous. Because the casks that will hold the waste cannot last for more than 10,000 years, the geology of the mountain alone must be able to isolate the waste over much longer time periods. The State of Nevada has long maintained that the rock at Yucca Mountain cannot isolate radioactive waste for more than 10,000 years.

On July 9th 2004, the U.S. Circuit Court of Appeals for the District of Columbia released a ruling that upheld the constitutionality of the Yucca Mountain site selection process but also rejected the 10,000 year compliance period for limiting the release of radiation set by the EPA. The court found that the EPA did not follow the guidance of the National Academy of Sciences (NAS), who advised the EPA that this standard was not feasible and could not be applied to Yucca Mountain. In light of this decision, the court ordered the EPA to revise the standards to be consistent with NAS's recommendations on practical standards for radiation releases or obtain approval from Congress that would allow them to implement the current standards.

The Yucca Mountain nuclear waste repository suffered another setback on August 30, 2004 when a federal nuclear licensing panel ruled that the Energy Department's repository document database was incomplete. The ruling, handed down by a three-member panel of the Nuclear Regulatory Commission's Atomic Safety and Licensing Board said that when DOE certified its document database on June 30, it failed to satisfy NRC regulations by not making publicly available substantial quantities of documentary material.

Yucca Mountain has also encountered difficulties in the appropriations process. Funding for the repository remained at $131 million after the House Appropriations Committee passed the fiscal year 2005 (FY05) Energy and Water Development appropriations bill on June 16, 2004. The original request from the Office of Management and Budget for the project was $880 million, with only $131 million coming from Congress and the other $749 million from a reclassification of the nuclear industry's annual contributions to the Nuclear Waste Trust Fund. The $749 million is dependent on passage of H.R. 3981 allowing money from an annual nuclear waste fund to be used for the Yucca Mountain project through 2009. The bill was attached as a floor amendment to the Energy and Water Development appropriations bill, which only allocated $131 million for the project. It is expected that the money from the trust fund will keep Yucca Mountain on schedule for its site license approval by the Nuclear Regulatory Commission in December and its expected 2010 opening. However, the Committee was only authorized to allocate $576 million for Yucca Mountain in FY05, which means it is still $304 million short of the Office of Management and Budget's proposal. This would effectively ground the project and further delay its opening.

Sources: Hearing Testimony, Department of Energy, E&E Daily, Environmental Protection Agency, Greenwire, Las Vegas Review-Journal, Library of Congress, National Academies, Nuclear Energy Institute, Salt Lake Tribune, Washington Post, House Subcommittee on Parks; hearing testimony; Associated Press; San Francisco Chronicle online; THOMAS legislative database; Las Vegas Review-Journal; American Minerologist.

Contributed by David R. Millar, 2004 AGI/AAPG Fall Intern; Katie Ackerly, 2005 AGI/AAPG 2005 Spring Intern; Linda Rowan, Director of Government Affairs; and Jenny Fisher, 2006 AGI/AAPG Spring Intern.

Background section includes material from AGI's High-level Nuclear Waste Legislation Update 108th Congress.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on October 5, 2006.

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