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US Court of Appeals Rejects Constitutional Challenge to Yucca Mountain Repository

WASHINGTON—In a unanimous ruling, the U.S. Court of Appeals for the D.C. Circuit today affirmed Congress’ 2002 endorsement of the planned Yucca Mountain, Nev., underground repository for used nuclear fuel from nuclear power plants and high-level radioactive waste from U.S. defense programs. Ruling in a group of consolidated cases, the appellate court rejected all but one of the legal challenges raised by the state of Nevada, including a constitutional challenge.

The one specific exception to the court’s rejection of Nevada’s arguments came with regard to the Environmental Protection Agency’s 10,000-year compliance period during which the repository design must be able to limit the presence of radionuclides within several miles of the site. The court ruled that EPA’s standard improperly deviated from the National Academy of Sciences’ recommendation that compliance should encompass a period extending beyond 10,000 years.

The following is a statement from the Nuclear Energy Institute’s Executive Vice President Angie Howard:

“Congress’ 2002 endorsement of the Yucca Mountain site and the Department of Energy’s work at the site are unaffected by this ruling. The court held that this important environmental protection program can go forward as planned. The one exception in the court ruling should not impede work at the repository.

“With regard to the EPA compliance period, the court notes two possible options. One is simply that the Environmental Protection Agency and the Nuclear Regulatory Commission revise their regulations to extend the compliance period beyond 10,000 years. The other is that Congress could enact legislation empowering EPA to deviate from the beyond-10,000 year recommendation of the National Academy of Sciences.

“Work at the site and on the Energy Department’s upcoming license application for the repository, scheduled to be submitted to the NRC this December, should be allowed to continue under existing regulations. The reason is that the NRC is not scheduled to decide whether to issue a construction license for the state-of-the-art repository until 2007 or 2008.

“It is noteworthy that the court affirmed every other challenged aspect of the federal government’s program in these consolidated cases. This validates our belief that the overall decision-making process for the Yucca Mountain project rests on sound scientific ground.

“Continued progress on the repository program is tremendously beneficial to the nation’s environmental preservation, economic strength and national security. Safe isolation of used nuclear fuel in a centralized location allows the nation to continue to rely on nuclear energy, which provides electricity to one of every five U.S. homes and businesses, as a vital part of a diverse energy portfolio at a time when there is tremendous turmoil and volatility with regard to other energy sources.”


Nevada Loses 11 of 12 U.S. Court of Appeals
Rulings on Yucca Mountain
(Rulings issued July 9, 2004)

Case: Nevada vs. EPA

Nevada challenged the Environmental Protection Agency (EPA) radiation standards alleging deficiencies governing the repository operations.

Results—The court rejected the following claims by Nevada:

  • That the EPA “controlled area” being a distance of 11 miles was improper. The EPA standard for radiation levels as measured at the perimeter of the project’s “controlled area” extends about 11 miles from the repository was appropriately determined by scientific assessments.
  • That the EPA definition of disposal as being as “for as long as reasonably possible” was improper. EPA does not have to put a specific time limit on disposal of used nuclear fuel, the court said.

Case: Nevada vs. NRC

Nevada claimed that Nuclear Regulatory Commission (NRC) regulations should require that natural barriers provide either the sole or “primary” form of containment for nuclear material disposed at the Yucca Mountain repository and alleged other deficiencies in the regulations.

Results—The court rejected Nevada’s claims on the following issues:

  • That the NRC require geology be the primary barrier to prevent the release of radionuclides.
  • That the NRC require multiple independent barriers with specific levels of performance to safely contain radionuclides.
  • That the NRC specifically require compliance with EPA’s 197 rule for repository construction authorization, which includes a groundwater standard, 15 millirem individual dose standard and human intrusion standards.
  • That the NRC used an impermissible “reasonable expectation” burden of proof.

Case: Nevada vs. DOE

Nevada challenged the criteria by which the Department of Energy (DOE) approved Yucca Mountain as the repository site and other aspects of site selection.

Results—The court rejected all of Nevada’s claims:

  • DOE’s Yucca Mountain repository site criteria were improperly set.
  • DOE’s Final Environmental Impact Statement was inadequate.
  • DOE’s secretary’s recommendation of the site to the president was invalid.
  • The president’s recommendation of the site to Congress was unlawful.

Case: Nevada vs. United States

Nevada challenged the constitutionality of the Yucca Mountain Development Act, passed by Congress in 2002.

Results—The court rejected all of Nevada’s claims and ruled the following:

  • Congressional approval of Yucca Mountain is consistent with the U.S. Constitution, including the Property Clause.

Case: Nuclear Energy Institute (NEI) vs. EPA

The EPA claimed that a separate standard should apply to regulate radiation levels in groundwater. This was in addition to regulations that limit radiation releases from all pathways at Yucca Mountain.

Results—The court rejected NEI’s claim that application of a separate EPA groundwater standard was impermissible under the Energy Policy Act of 1992.

  • The application of a separate EPA groundwater standard is permissible under the Energy Policy Act of 1992.

The court ruled that EPA must either issue a revised radiation standard for Yucca Mountain that is “based upon and consistent with” National Academy of Sciences recommendations or ask Congress for authority to deviate from the NAS recommendations. The industry and EPA likely will appeal this ruling.


The Nuclear Energy Institute is the nuclear energy industry’s policy organization. This news release and additional information about nuclear energy are available on NEI’s Internet site at