Yucca water request denied

Cy Ryan and Mary Manning

Wednesday, Feb. 2, 2000 | 11:05 a.m.

CARSON CITY -- In a major victory for opponents of a nuclear dump, state Engineer Mike Turnipseed today rejected the applications of the Department of Energy for water to build and operate the repository about 90 miles northwest of Las Vegas.

Turnipseed, in a 24-page ruling, said the use of water "threatens to prove detrimental to the public interest." Congress singled out Yucca Mountain as the nation's only site to study for burying 77,000 tons of highly radioactive waste from commercial reactors and nuclear weapons production.

The DOE had argued during public hearings last year the project was like a mining operation and the applications to use 430 acre feet of water a year should be approved.

But Turnipseed said, "It became clear to the state engineer during the administrative hearing process that this facility is not like any other industrial complex for which appropriation of water is requested."

The four permits sought by the DOE said the water would be used for construction, drilling, dust suppression, testing and domestic purposes for the workers.

Turnipseed said, however, that once the construction is complete, the water would be used for "the possible handling of nuclear waste, washdown facilities, decontamination and other uses associated with the operation of a facility to store high-level nuclear waste."

The testimony from the public hearings, Turnipseed said, "indicated that during operation of the facility, water would be used for decontamination of equipment contaminated with radiation and to cool the transportation casks prior to removing either non-disposable canisters or bare assemblies."

The assemblies contain radioactive pellets that fuel nuclear reactors. Those assemblies along with radioactive defense wastes would be destined for the repository inside Yucca, if the mountain passes scientific muster.

In determining public interest, Turnipseed said he did not rely on public opinion polls, which show an overwhelming number of Nevadans oppose Yucca Mountain as a nuclear burial ground. Rather, he said, Nevada's public interest is shown by a Nevada statute that makes it unlawful for any person or governmental entity to store high-level radioactive waste in Nevada.

"Therefore, the Nevada Legislature has already determined that the use applied for threatens to prove detrimental to the public interest."

The DOE is expected to challenge the decision in court. At the hearings last year, both sides said they would sue if Turnipseed ruled against them.

"We know once he rules, it will go to court either way," said Turnipseed's boss, Pete Morros, state conservation director.

However, if the DOE were to lose its legal challenge, that still would not stop it from building a repository, DOE officials have said. They noted during the hearings that if they were not allowed to use ground water on the site, they would truck in water, which would only delay the project.

Morros noted that the DOE may try to move the legal fight to the federal courts, as it did when the agency applied for temporary water rights at Yucca Mountain in the early 1990s.

The state wants to keep the water rights case at the state court level, Morros said. Morros on Friday will brief a legislative committee meeting in Las Vegas on Turnipseed's decision.

DOE spokesman Allen Benson said he had not seen the ruling. "I have no comment at this time, since I have not seen the document," he said. The DOE will issue comment once the agency reviews the decision, he added.

The DOE has temporary water rights at Yucca until 2001 for its study, called "site characterization." Although the mountain has not been approved for a repository by Congress or the president, the federal agency wanted to make sure it had priority over others in seeking permanent water rights.

Gov. Kenny Guinn, an opponent of the dump, said he was "very pleased" with Turnipseed's ruling. He stressed that he had not been involved because he wanted an independent decision.

"Turnipseed is a very knowledgeable individual, and he knows on what to base his ruling on and what not to. And I'm sure whatever ruling he came out with would be appealed," Guinn said.

The governor said he had not seen the decision, but he was confident it would be "very sound" and praised the state's Agency for Nuclear Projects.

The applications were opposed at public hearings by the Agency for Nuclear Projects, Citizen Alert, the Southern Nye County Conservation District and the Amargosa Water Committee.

Turnipseed rejected the protests of the conservation district and the water committee, saying they failed to present any case during the hearings.

But he upheld the protests of the nuclear waste office and Citizen Alert, who had agreed that there was enough ground water available but argued the water use "threatens to prove detrimental to the public interest."

The state's objection was the basis of Turnipseed's ruling.

The state office also argued the granting of the permits would pose a danger to the economy of Nevada. The proposed site of the dump would place a stigma on Las Vegas and its tourism industry, its officials said.

The DOE said those arguments were speculation, and Turnipseed's decision should be based on scientific evidence.

In his decision, Turnipseed noted that Nevada's anti-nuclear waste storage law was used in an unsuccessful court challenge to stop the study of the Yucca Mountain site. The U.S. 9th Circuit Court of Appeals ruled the Nevada law was pre-empted by the federal Nuclear Waste Policy Act.

The focus in that decision, Turnipseed said, was site characterization. The court "did not determine whether Nevada's legislative veto of the storage of high-level radioactive waste was pre-empted," he wrote.

"Therefore, whether Nevada's legislative veto extends past site characterization to nuclear waste disposal has not been ruled upon by a court of law," Turnipseed said.