Las Vegas SUN: Federal judge says drilling must stop at nuke dump site in Nevada

September 04, 2007

Federal judge says drilling must stop at nuke dump site in Nevada
By KEN RITTER
Associated Press Writer

LAS VEGAS (AP) – A federal judge has ruled that Nevada can shut off water needed for bore hole drilling at the proposed Yucca Mountain nuclear waste repository.

In a strongly worded order focusing on federal “credibility and good faith,” U.S. District Judge Roger Hunt in Las Vegas said the Department of Energy could not ignore state limitations and continue using water for drilling test holes near the repository site.

“This entire ‘crisis’ is self-imposed and self-created,” Hunt said in his 24-page order, dated Friday but distributed among the parties on Tuesday.

“The only argument the DOE makes is that because the site has been approved … it has the authority to do whatever it wishes,” the judge said. “It has failed to demonstrate the necessity of its voracious water damands.”

Nevada has long complained that the federal government kept increasing the scope of the drilling and its water needs – from about 15 bore holes to 80 and from 300,000 gallons of water to 3.5 million gallons.

Hunt did not decide the merits of the case, which was originally filed in August 2002.

He instead denied the federal request for a preliminary injunction that would have limited the state water engineer’s ability to restrict water allocations to the arid site, 90 miles northwest of Las Vegas.

Energy Department spokesman Allen Benson in Las Vegas declined immediate comment on the ruling, saying Tuesday that Yucca Mountain project officials were reviewing Hunt’s order. Benson said he didn’t know if drilling had stopped.

Senate Majority Leader Harry Reid, a Democrat who has led state opposition to the Yucca project, hailed the ruling as a victory for state rights.

“The federal government will do anything it can to try to turn Nevada into the nation’s nuclear dumping ground, even if that means ignoring the law and the will of the people who would be most affected by the dump,” Reid said in a statement. “I am pleased that Judge Hunt upheld Nevada’s right to enforce its water laws.”

Nevada Attorney General Catherine Cortez Masto said Hunt’s order “vindicates Nevada’s long-standing position that DOE’s sleight of hand in using Nevada’s water for an unauthorized bore hole drilling program is neither mandated by federal law nor consistent with the public’s interest.”

Marta Adams, a deputy state attorney general who argued the case, said she saw no wiggle room for the federal government and no grounds for appeal. She said bore hole drilling had to stop, or the state would seek a contempt of court order.

In a pointed criticism of the bore hole project, the judge rejected federal claims that scientists needed to test areas around the Yucca site to “meet congressional mandates” and demonstrate the suitability of the site for entombing 77,000 tons of radioactive waste now being stored at nuclear reactors in 39 states.

Site characterization tests were supposed to have been completed before the site was recommended to Congress in 2002, Hunt said.

“Either that is so,” the judge wrote, “or it would appear the DOE misled Congress and the president in its application for approval of the site. DOE attempts to deny that this is further site characterization. However, its own documents contradict that argument.”

Hunt also rejected arguments by Justice Department lawyer Stephen Bartell that state officials were using water as a weapon to delay the project, and that the Energy Department would suffer irreparable harm if data collection was delayed.

Bartell had argued that the government lost $350,000 by paying for idle drill crews after the state issued a cease-and-desist order on June 1.

That order was lifted temporarily June 12, but was reinstated eight days later, after the two sides failed to agree on conditions for using the water.

The Energy Department once hoped to open the repository by 2010. But the projected opening date has been pushed back at least to 2017 by legal challenges, budget issues, political opposition and scientific controversies.

Energy Department officials now hope by next June 30 to submit to the Nuclear Regulatory Commission an application for an operating license.

Hunt noted, however, that NRC approval was “not a foregone conclusion.”