Thursday, August 14, 2003
Copyright © Las Vegas Review-Journal

Denial of water for nuke dump urged

Hearing slated next week in Carson City

Allowing the Energy Department to tap groundwater in Nye County for the planned Yucca Mountain nuclear waste repository is not in the public's interest and any such requests should be denied, Nevada attorneys said in a brief filed Wednesday with the state engineer.

The brief was filed in preparation for a hearing next week in Carson City before State Engineer Hugh Ricci who is expected to determine whether the "public interest" reason that his predecessor used in denying permanent water rights to DOE three years ago is still valid.

If Ricci decides that DOE cannot use the groundwater, the matter would probably end up in federal court. With no water, a repository could not be built. Dump opponents hope that's exactly what will happen.

"The Yucca Mountain Project is a unique project and presents Nevada with an unprecedented set of potential impacts," says the 17-page brief signed by Senior Deputy Attorney General Marta Adams.

"To protect and preserve future beneficial uses of Nevada's vital groundwater, Nevada Agency (for Nuclear Projects) asks that the state engineer utilize the existing record in light of applicable Nevada law and find that DOE's proposed use of water should be denied," it states.

In a related case in federal court in Las Vegas regarding temporary access to 140 million gallons per year from five wells in Nye County, U.S. District Judge Roger Hunt in December allowed DOE to refill its potable water supply at Yucca Mountain.

Hunt ruled that until Yucca Mountain cases in the U.S. Court of Appeals for the District of Columbia Circuit are resolved, the water could be used to flush toilets and take showers but not for building a repository for entombing 77,000 tons of highly radioactive spent fuel and defense wastes in the mountain, 100 miles northwest of Las Vegas.

In court papers filed in January, Adams said the state engineer's finding in 2000 that permanent use of the water "threatens to prove detrimental to the public interest" still holds and that the only appropriate remedy would be a remand to the state engineer for reconsideration of his public interest analysis.

The state engineer at the time, Michael Turnipseed, denied DOE's request for permanent water rights, saying it was not in the state's interest to allow the government to build and operate a nuclear waste repository at Yucca Mountain.

Late Wednesday, a spokeswoman for DOE's Office of Repository Development, Toni Chiri, declined to comment on Adams' brief and said one that would be filed by attorneys for the federal government wasn't available.

In a telephone interview, Adams said the state engineer "should take an expansive look at these applications because it's more than merely pumping water for some run-of-the-mill industrial use.

"It's the first repository for nuclear waste. ... The engineer needs to make findings that use of water is not beneficial to public interest because Yucca Mountain is such a one-of-a-kind project," she said.

Adams' brief notes that the Legislature has judged the Yucca Mountain Project not to be in the public interest.

"In the driest state in the union, where water is the lifeblood of all human and natural activities, it is small wonder that the public unquestionably has an interest in the proposed use of its most essential resource.

"This is particularly true where, as here, the proposed use of water -- to construct and operate the world's first high-level nuclear waste repository -- is potentially capable of undermining future beneficial uses of the public's water," the brief states.

It later notes that the state engineer is charged with preventing pollution and contamination of the public's underground waters.

The state has filed several challenges in federal appeals court over the planned repository. The Energy Department is not expected to submit a license application to the Nuclear Regulatory Commission for building the repository until late 2004.