Yucca project believed to be 'legally dead'

By Erin Neff
<erin@lasvegassun.com>
LAS VEGAS SUN

April 9, 2002

Nevada officials plan to use Gov. Kenny Guinn's veto of the proposed nuclear waste dump at Yucca Mountain to boost their efforts to stop the project in the courts.

Today the Energy Department's water permit runs out and the state will argue that since Guinn has vetoed the project, the federal government isn't entitled to any more water.

"Our reading of the statute is that the project has been vetoed," said Marta Adams, the deputy attorney general who is assigned to the Nevada Nuclear Projects Office. "It is legally dead unless it is revived by a new act of Congress."

The 1982 Nuclear Waste Policy Act gave Guinn the ability to veto a presidential decision in favor of the waste site. That law also defines how and when Congress must act to sustain or override the veto.

Now that Guinn has acted, the state believes the Yucca Mountain project is "legally dead" until revived by an act of Congress.

The water issue has become contentious. The state says there's no need to allow further water use because the Energy Department says the water would be used as part of its study of Yucca Mountain. State lawyers say the study is essentially over since the president's decision to recommend the site, and the federal government should wait for a permanent license of the site to apply for water.

Now with Guinn's veto, the project is dead, state lawyers believe.

The Energy Department does not interpret the law the same way and will not cease any action on the Yucca project now that Guinn has filed his veto, Energy Department spokesman Joe Davis said.

Only an action of Congress could grind the Yucca project to a halt, Davis said. The department does not interpret federal nuclear waste laws to direct a stop of work on the Yucca project while the governor's veto is pending, he added.

Nevada won't ask a judge to issue an injunction barring the Energy Department from conducting any operations at the site because state officials believe the matter will be decided in a lawsuit -- perhaps as early as this week.

The Energy Department's water permit expires today, and the state has denied the department's request for a temporary permit extending the ability to draw water.

Mike Turnipseed, director of the state Department of Conservation and Natural Resources, said Monday traditionally the state will issue a cease and desist order against the party who has lost the water right but continues to pump.

Turnipseed said if the Energy Department does not follow the stoppage order, then the state will sue in court to force the government to obey the law. Turnipseed said he hopes the case will be brought in state district court, instead of the federal court where water issues are pending now.

The government pumps 430 acre-feet of water from the Fortymile Canyon-Jackass Flat Groundwater Basin in Nye County each year. The suit by the Energy Department says it would not be able to complete scientific studies to determine if Yucca Mountain was a suitable location of the repository.

The state issued temporary permits in 1992 and 1994. But state Engineer Hugh Ricci refused this year to extend the temporary permits on grounds the federal government had completed its study.

Ricci based his decision on the announcement by the Energy Department and President Bush that the site has been found to be safe for storing the waste. The state engineer said the site characterization process has been complete and the temporary water permits were not necessary for continued study.

The Energy Department responded by suing and building storage tanks to hold water while the issue is being resolved in court.

The Energy Department also has a suit pending on the state's denial of a permanent water right for Yucca Mountain. No hearing has been set on that case.

That water issue is pending in U.S. District Court -- with the government seeking expedited legal filings from the state to resolve the case quickly.

"This is obviously a political chess game right now, but it can spill over into the judicial arena," Adams said. "I can't tip my (hand) right now, but I think you're going to see that played out in the water case."

The state will likely argue that Guinn's veto has killed the proposed nuclear waste repository 90 miles outside of Las Vegas, and as a result, gives the Energy Department no right to access the state's water.

"Until Congress acts, we don't see any reason for them to continue with their activities," Adams said.

DOE officials continue to monitor ongoing studies of the site and are preparing to apply for a license to bury the waste with the Nuclear Regulatory Commission, Davis said.

Adams was expecting the judge in the water case to require her to file briefs showing the state's opposition to the Energy Department's request on Monday -- the day before the permit expires.

Now Adams said she expects the government will demand the case be expedited as early as today.

In addition to the water suit, Nevada has also filed suit in federal court in Washington, D.C. based on the geology of Yucca Mountain.

"On the geology alone this mountain can't hold anything," Adams said.

The Energy Department has won approval to change the guidelines for storing waste at Yucca Mountain from rules based on the geologic isolation of the ridge to a requirement that natural geology coupled with manmade barriers be used in the repository.

A number of Nevada officials, including former U.S. Sen. Richard Bryan, said they believe the state's best chance to block the dump is in the courts. "The state's case is very good," Bryan said.

Las Vegas Mayor Oscar Goodman said he hoped Nevada would be able to muster enough political support in the U.S. House of Representatives to stop the project, even though he believes that to be a long shot.

"If we don't prevail in the House, we will prevail in the Senate," Goodman said. "And if we don't prevail in the Senate, we will definitely prevail in the courts because might is right."