(The following article by Matthew L. Wald was posted on the New York Times website on September 20.)
WASHINGTON — The court that derailed the Yucca Mountain nuclear waste repository in July, concluding that the government had not set strict enough rules on radioactivity leakage, based its decision on an incomplete reading of a National Academy of Sciences study, the chairman of the committee that wrote the study said on Monday.
The judges, on the United States Court of Appeals for the District of Columbia Circuit, decided that Congress had intended the rules governing the repository to be in accordance with a 1995 National Academy of Sciences study that said they should cover the period of peak risk, which would be hundreds of thousands of years. The Environmental Protection Agency had written a rule that the repository must meet release standards for only 10,000 years to be licensed.
The court told the agency to rewrite the rules. The E.P.A. has not decided what to do and has asked Congress to override the ruling.
But at a meeting of a National Academy of Sciences committee on radioactive waste, Robert W. Fri, who led the group that wrote the 1995 study, said on Monday that it had based its exposure estimates on the probability that people would live in the places most polluted by the repository, while the E.P.A. had made “extreme assumptions” that people were certain to live there, and to draw polluted water from wells for drinking and for irrigating the crops they would eat.
“That is a place where the committee specifically decided they did not want to be,” Mr. Fri said.
The fate of the repository is now before a Congress that is unlikely to take up the issue before the November elections, and depending on their results, may not do so afterward, participants at Monday’s meeting of the Academy’s Board on Radioactive Waste Management said.
The discussion at the meeting reflected the repository’s highly uncertain future.
Mr. Fri said that concluding that Yucca Mountain could not meet federal standards would not make the waste disappear, and that if placing the waste there was better than leaving it where it is now, perhaps the repository should be built anyway.
But Judy Triechel, an official with the Nevada Nuclear Waste Task Force, a state agency, said: “Supposing the best solution isn’t good enough, that’s easy. The answer is, You’re not ready yet. If Yucca Mountain isn’t good enough, we shouldn’t proceed with it.”
Referring to the debate over guarding against leakage for 10,000 years versus several hundred thousand years, Ms. Triechel said, “There cannot be an expiration date on safety.”
Some experts at the meeting were pessimistic that Congress would grant the Energy Department’s request to change the rules.
“The appearance of such an action to the lay public might well be that Congress, having realized that Yucca Mountain could not meet the existing standards, was now trying to dumb down the standards to the point where Yucca could pass the test,” said Sam Fowler, the chief counsel for the Democratic minority on the House Energy Committee.
Others said that question would be much clearer after Election Day.
Senator John Kerry, the Democratic nominee, has pledged not to proceed with Yucca Mountain. But even if the White House does not change hands, a Congress that is only slightly less sympathetic to the project than the current one would probably derail the project.
The radioactive waste board also heard an extended discussion of whether the Energy Department should be allowed to define some nuclear waste created in weapons production in a way that would allow it to be covered with cement and left in place, instead of sealed in glass and prepared for burial. The department is seeking to define some of the waste as “waste incidental to reprocessing,” meaning it could be left behind.
Environmentalists say the material is high-level waste that under the law that established the Yucca Mountain program must be readied for “deep geologic disposal.”
In July 2003, in a case brought by the Natural Resources Defense Council, a federal district judge in Idaho ruled that the department could not change its responsibilities by the way it defined the waste. The department appealed, and an appeals court will hear arguments next month in Seattle.
But as with Yucca Mountain, the Energy Department has also turned to Congress to ask to have the decision overridden. The Senate, in a tie vote, agreed to leave a provision in a military appropriations bill that would overturn the decision for wastes in South Carolina, and the House Armed Services Committee has approved the idea as well.
Geoffrey Fettus, the lawyer at the environmental group that brought the suit, complained on Monday that he had been unable to obtain even a copy of the House legislation.