Nevada's Nuclear War with Feds

Paraphrased by:
Steve Waldrop
December 15, 2003

Nevada will ask a federal appeals court next month to block the U.S. government from burying the nation's deadliest nuclear waste in the desert state.

Despite Nevada's objection, President Bush and Congress last year approved a permanent national repository for 77,000 tons of radioactive waste on federal land 90 miles northwest of Los Vegas. That defeat for Nevada merely heated up the fight the state has waged since 1982 to nuke the $58 billion Yucca Mountain Project. It has been one of the most contentious environmental feuds between a state and the federal government.

In January, the U.S. Court of Appeals for the District of Columbia will hear nine lawsuits filed by Nevada, Las Vegas and Clark County. Nevada defendants include President Bush, Energy Secretary Spencer Abraham, the Nuclear Regulatory Commission (NRC) and the Environmental Protection Agency. The Nuclear Waste Policy Act of 1982, which authorized a nuclear-waste repository, said that any lawsuits over the project must be heard in the D.C. court.

Nevada alleges that the other 49 states have violated the Constitution by ganging up on a state of 2 million people to arbitrarily impose "this universally unwanted burden."

Although it's the fastest-growing state, Nevada remains politically weak. Ranking 35th in population, it has just three members of the U.S. House of Representatives, along with two senators. Governor Kenny Guinn, a Republican, last year exercised an option that the 1982 federal law gave him to veto the repository. Congress overruled his veto.

Guinn "has said from the get-go he believes the legal arena is where this issue should be decided," Guinn spokesman Greg Bortolin says. "He believes we'll get a much fairer shake."

Court rulings are likely in mid-2004 on Nevada's constitutional and statutory claims. The outcome could be pivotal in determining whether spent fuel from nuclear power plants, Navy vessels and research reactors will be shipped to Nevada, or will keep piling up at 77 temporary storage sites in 31 states.

Abraham says the nuclear waste is a target for terrorist attacks at the current storage sites. Nevada opponents say putting thousands of shipments on roads and railways into Nevada is riskier.

Fear and loathing in Las Vegas led the city to enact an ordinance in 2000 making it unlawful to transport through the city "any high-level nuclear waste for delivery to a repository for nuclear waste." Truckers and railroad engineers convicted under the law would face a six-month jail term, a $1,000 fine or both.

Marta Adams, a senior deputy Nevada attorney general, concedes that the law might not stand up in court against federal authority. "But you've got to admit it has populist appeal," she says.

In another skirmish, Nevada's state engineer is denying the federal government the water it would need to operate a nuclear waste facility at Yucca Mountain, saying it would be "detrimental to the public interest." On hold, pending the outcome in the D.C. appeals court, is a suit the U.S. government brought in Nevada federal district court to get the water.

Before losing the decisive U.S. Senate vote on Yucca Mountain in July 2002, Nevada spent $3 million on public relations campaigns to try to convince people in other states that shipping nuclear waste to the mountain would raise the possibility of terrorist "dirty bomb' attacks that could endanger thousands of communities across the USA.

A dirty bomb attack probably would involve the use of conventional explosives to spread radioactive material; that could create a toxic cloud and make the explosion site uninhabitable for years.

While under pressure for Nevada to stop the repository, the Energy Department also is being pressured to start digging waste-disposal tunnels at Yucca Mountain.

Electric utilities have won court rulings that said the department breached contractual obligations to start taking the utilities' used-up reactor fuel by 1998. Power companies have begun suing for damages that could total $56 billion, the Nuclear Energy Institute says.

Nevada was an outpost of 160,000 people when it hosted atmospheric tests of nuclear bombs near Yucca Mountain in the 1950's.

But sentiment toward nuclear risk has shifted as the tourism-dependent Las Vegas area has boomed to 1.6 million people. Polls show that two-thirds of Nevadans support the state's legal battle to shun waste that will remain radioactive for an estimated 250,000 years.

Opposition to Yucca Mountain is virtually unanimous among top Nevada politicians. Nevada's Senators John Ensign-R and Harry Reid-D, have joined to keep federal money for the Yucca Mountain project on a shoestring. State Attorney General Brian Sandoval, a Republican is directing the legal effort against the project. He has hired 11 private lawyers. Joseph Egan of McLean, Va., an MIT-trained nuclear engineer, is lead outside counsel.

Former Nevada governor Bob List, a Republican, has broken ranks. He has become a paid consultant to the nuclear industry. List says the repository would be safe and that "some public officials are more motivated by getting reelected than by honest concerns for safety and the environment."

List says Nevada should stop fighting and start negotiating for millions of dollars in federal "impact mitigation" payments for teachers, roads and law enforcement. The 1982 nuclear-waste repository law authorizes such payments.

Nevada contends in its lawsuits that the U.S. government has violated that law by abandoning stable, deep rock as the "primary" Yucca Mountain barrier against nuclear contamination. Nevada says U.S. officials lost confidence in the mountain, jimmied the regulations in 2001 and now rely chiefly on sturdy storage casks and other "engineered" barriers.

On that basic, Adams says, a repository could be placed anywhere. Without a "rational, objective" geologic standard that requires singling out Nevada, for sacrifice, she says, "it's like taking all the soldiers that are fighting in Iraq just from one state."

Energy Department officials say the linchpin of their legal response is that Congress made many of Nevada's challenges moot when it passed the resolution approving Yucca Mountain as the repository site.

The "new Law" waived any failure by the government to observe previous laws, government briefs say. The feds also say the 1982 law and later amendments allow a "total system performance" approach to safety that can give geology a secondary role.

Opposing Nevada's constitutional claims, the Energy Department says that the Constitution gives the federal government broad power over its own land- and that Nevada wasn't denied a voice in the political give and take over the repository.

The Energy Department says that Yucca Mountain would be safe for the public for at least 10,000 years. The agency is eager to win in court and get through a final step: obtaining an NRC construction and operating license in hopes of opening the repository in 2010. Science-intensive licensing hearings are expected to take three or four years.