DOE in the dock
The U.S. Department of Energy must be feeling the squeeze.

While DOE officials have pushed hard to get their Yucca Mountain nuclear waste dump open, their progress has been slowed to a crawl by scientific criticism, state opposition and safety regulations—and now nuclear power companies are taking them to court, saying they want either a dump or their money back.

Right now a trial is underway in Washington, D.C., to determine the government’s responsibility for its failure to open the dump by 1998, as promised.

Yankee Atomic Electric Company, which has nuclear reactors in three New England states (one of them permanently shut down for safety reasons), is one of many companies that have lined up to sue the feds, and its trial started last week.

A quarter-century ago, the federal government started charging the companies hefty fees to pay for a single national waste dump and pledged to start taking wastes off the companies’ hands when the dump was completed. Eventually, Nevada’s Yucca Mountain in Nye County was targeted as the only site to be studied for its suitability, but the project has been plagued by doubts from the scientific community and opposition from the state. The 1998 start date for the dump came and went, and in January there was a rush of lawsuit filings by companies to beat the expiration of the statute of limitations for such suits.

The DOE has repeatedly promised unrealistic schedules, giving timetables with all the compelling credibility of Amtrak schedules. In fact, DOE is still doing so. Last year it said it could have the dump ready by 2010. Jerry Stouck, lawyer for Yankee, told the National Law Journal in January, “No one believes that.”

Dump critics don’t fault the companies, however suspicious they otherwise are of those firms. They say the dump project is typical of a chronic federal problem of smugness and arrogance in nuclear technology, of launching initiatives prematurely, before the technology exists and without providing for fallbacks if the program doesn’t work—and without consulting with affected populations.

In this sense, the Yucca project is reminiscent of the federal “Atoms for Peace” program that the United States launched in the 1950s, encouraging the spread of nuclear technology and power plants to other nations and promising to accept the foreign waste here. When shipments of waste started arriving on the West Coast in the 1990s, many of them were transported to a dump in Idaho through local communities (including the Truckee Meadows) that freaked at the prospect, generating anger and protests.

In the case of the promise to take the U.S. nuclear-power companies’ waste, opponents of the Yucca dump say Congress committed the federal government to a solution to the waste problem without knowing its technical feasibility, and the taxpayers are now being held hostage to that commitment. In addition, Congress underestimated the scientific rigor it faced in creating a nuclear-waste dump and has more than once been forced to enact legislation to coax the project along. In 1992, for instance, Congress ordered both the Environmental Protection Agency and the Nuclear Regulatory Commission to devote more effort and resources to accelerating the pace of the Yucca project.

Lawyers for the companies charge that the U.S. Department of Energy has done little to get the dump opened, which is not the case. In fact, in other quarters DOE has been criticized for being too aggressive in trying to hurry the process along. Such pressure from DOE has often undercut the scientific process; indeed, a few days ago that aggressiveness led to an adverse federal court ruling that set the project back still further by requiring either fundamental changes in the project or new congressional action.

The companies’ lawsuits are heard in the Court of Federal Claims in Washington, and there are plenty of corporations in the pipeline after Yankee. There was a rush of filings just before the statute of limitations expired in January, and more than 60 companies are seeking compensation that could cost billions—$50 billion is the figure most frequently cited.

The government’s best hope for avoiding substantial awards to the companies seems to be arguing that just opening a dump on the promised Jan. 31, 1998, date does not mean that waste would have promptly been shipped from power plants. Shipments to Yucca, government lawyers are expected to argue, would have taken place slowly and cautiously over a period of years to assure safe transport of the tens of thousands of tons of waste at plants. Yankee, for instance, might not yet have had its waste removed at all even if the dump had been opened on time.

For Nevada, the risk is that the prospect of substantial damage awards will convince Congress to approve more measures that accelerate the study process for Yucca. But Nevada’s U.S. Sen. Harry Reid refuses to get dragged into that debate, staying on message when the issue is raised: “The best way to address these court cases is for the government to take responsibility for the waste on site and put it in dry cask storage immediately. Yucca Mountain is riddled with problems, and I don’t believe it will ever open.”