project believed to be "legally dead"
Las Vegas Sun, April 9, 2002
by Erin Neff
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
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
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
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
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
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
Department from conducting any operations at the site because state
officials believe the matter will be decided in a lawsuit -- perhaps
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
ability to draw water.
Mike Turnipseed, director of the state Department of
and Natural Resources, said Monday traditionally the state will issue
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
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
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.
Engineer Hugh Ricci refused this year to extend the temporary permits
grounds the federal government had completed its study.
Ricci based his decision on the announcement by the
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
to hold water while the issue is being resolved in court.
The Energy Department also has a suit pending on the
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
"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
The state will likely argue that Guinn's veto has killed
proposed nuclear waste repository 90 miles outside of Las Vegas, and
a result, gives the Energy Department no right to access the state's
"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,"
The Energy Department has won approval to change the
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.
Bryan, said they believe the state's best chance to block the dump is
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
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."