Nevada battles feds on Yucca water

Tuesday, May 15, 2001 | 10:59 a.m.

SUN STAFF AND WIRE REPORTS

SAN FRANCISCO -- The federal government and Nevada squared off in an appeals court Monday over where to store 77,000 tons of radioactive waste.

At issue is Nevada's refusal to give the Energy Department rights to 430 acre-feet a year of ground water to build and operate a proposed nuclear waste dumpsite at Yucca Mountain, 90 miles northwest of Las Vegas.

It is a classic case of a state's rights versus federal authority.

Contaminated waste from the nation's nuclear energy and weapons facilities is stored near 103 nuclear reactors nationwide. Those sites are nearing capacity. The government has proposed transferring the waste to Yucca Mountain, which would become the nation's main dumpsite for spent nuclear fuel.

On Monday the Justice Department urged a three-judge panel of the 9th U.S. Circuit Court of Appeals to order Nevada to give the DOE a water permit. Without one, the site cannot be built or operated.

Nevada has granted temporary water rights to the federal government, but only for the purpose of studying whether the desert location is suitable for a nuclear repository to bury commercial reactor spent fuel and defense wastes.

Government lawyer Jared Goldstein told the panel that Nevada is "interfering with a congressional mandate" by refusing to issue a water permit.

While the state has said it withheld a water permit because of potential safety threats to the public, Nevada lawyers told the judges Monday that the state denied the permit because Congress has approved the location only for study.

Nevada cannot allocate water for a dumpsite until the government's studies are completed and Congress approves the area for a dump, argued Paul Taggart, a deputy attorney general.

More important, he said, since Congress has not approved the dumpsite, the federal government has no legal authority to order Nevada to issue a water permit.

He said the federal government might be able to make such a demand only after Congress approves the area as a dumpsite. Taggart said it was "speculative" that Nevada would still deny the water even after congressional approval.

Judge Thomas Nelson said he believed Nevada would indeed deny a permit at that stage as well.

"Would you like to put any money on that?" Nelson asked Taggart.

"I'm not a betting man," the Nevadan replied.

Judge Milton J. Shadur summed up the dispute when he asked who had the authority -- Nevada or Congress -- to set national policy on where to store the country's radioactive waste.

"Isn't that really the question?" he said.

The arguments came nearly a week after Vice President Dick Cheney said the Bush administration's turn to nuclear power as a long-term energy strategy requires a permanent nuclear waste dump.

"Now, with the gas prices rising as dramatically as they have, nuclear power looks like a pretty good alternative from an economic standpoint, if the permitting process is manageable and if we find a way to deal with the waste question," Cheney said.

The vice president is developing energy policy recommendations for President Bush that include changes meant to speed federal permits to utilities seeking to build nuclear power plants. The industry has not sought a permit to build a new plant in more than 20 years, prior to the accident at Pennsylvania's Three Mile Island.

Nuclear power provides 20 percent of the nation's electric capacity.

Congress, meanwhile, chose Yucca Mountain 14 years ago for a potential nuclear dumpsite under the 1982 Nuclear Waste Policy Act, which called for two repositories, one on each side of the country.

The water issue is just one of many disputes over the Yucca Mountain site.

Robert R. Loux, director of Nevada's Agency for Nuclear Projects, said the state would continue fighting the facility even if it loses the water dispute.

"Nevada doesn't want a repository," Loux said. "Scientific information suggests that this is not a good location."

The government is expected to conclude its environmental review of Yucca Mountain by year's end.

The court did not indicate when it would rule.

Sun reporter Mary Manning

and the Associated Press contributed to this story.

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