Columnist Jeff German: New allies aid state in Yucca struggle

Friday, Dec. 6, 2002 | 4:03 a.m.

FEW WOULD argue that Nevada is an underdog in its fight to stop Washington from sending the nation's dangerous nuclear waste to Yucca Mountain.

But now that the battlefield has switched from Congress to an independent federal court in Washington, the state is finding more allies than it ever could have imagined.

Bob Loux, executive director of Nevada's Nuclear Waste Projects Office, says more than a dozen whistle-blowers who have worked on the massive Yucca Mountain Project, 90 miles northwest of Las Vegas, have stepped forward in recent weeks. Some of the project's critics remain anonymous, and the names of others are being carefully guarded out of fear of retribution from the Department of Energy.

"They have information about wasted money at the project, health concerns that were ignored or scientific data that either was done incorrectly or falsified," he says.

The increase in whistle-blowers, Loux surmises, is the result of the state's aggressive legal challenges.

"People are seeing opportunities to come forward and talk about what they think has gone wrong with the project," he says. "They haven't done that to this extent before."

The impact of the whistle-blowers on the federal litigation still is unclear.

The state's three suits are regarded as administrative law cases, which means they will be decided solely on the record of the DOE's actions during the lengthy site selection process. The whistle-blowers are prohibited from testifying in the cases.

But Nevada lawyers are in a position to use the inside information that's surfacing to bolster their legal arguments that the process has been flawed and manipulated by the DOE.

At the same time state leaders are encouraging Yucca Mountain workers who uncover fraud and corruption in the massive project to file for whistle-blower status under the U.S. False Claims Act, which not only protects their jobs, but can lead to large monetary rewards if their allegations are substantiated.

With validated claims the whistle-blowers also will be able to help the state challenge the DOE's license to operate Yucca Mountain when the Nuclear Regulatory Commission holds public hearings in 2004.

The emergence of these new allies has raised the spirits of those leading the charge against Yucca Mountain.

"It's giving us a morale boost," says Joseph Egan, the state's chief Washington lawyer in the legal battle. "It's basically confirmation that things really are as screwed up as we think they are."

Egan is brimming with confidence about Nevada's chances of prevailing, even though he knows the state is taking on the unlimited resources of the federal government.

"I'm very encouraged at how powerful the facts are in this case," he says.

Nevada, he explains, has a strong argument that the DOE circumvented the will of Congress during the site selection process.

Congress instructed the DOE in 1996 to focus on whether the site was scientifically suitable to store nuclear waste and not work on the NRC license application.

"The DOE did exactly the opposite," Egan says. "It put all of its eggs in the license application to speed up the repository's development."

Then just a couple of months before Energy Secretary Spencer Abraham recommended Yucca Mountain, the DOE changed the suitability rules so that Yucca Mountain would more easily qualify to take the waste.

"They had a duty to terminate the site, and they failed to execute that duty," Egan says.

And now, with a little help from some new allies, Nevada leaders are in a better position to prove that the DOE tried to jam Yucca Mountain down the state's throat.

Suddenly, the odds have improved.